18 December 2011

Leave Required to Appeal Interim Divorce Act Orders

My friend Agnes Huang, until very recently of the eminent Vancouver firm Schuman Daltrop Basran & Robin, has brought my attention to Elgner v. Elgner, a June 2011 decision of the Ontario Court of Appeal. Agnes and I have had some interesting discussions about the implications of the case in British Columbia which I think should be shared more widely, especially since the Supreme Court of Canada made the decision not to hear Mr. Elgner's appeal in November 2011.

The fundamental question raised in Elgner, and left somewhat hanging as a result of the decision of the Supreme Court of Canada, is whether leave is required to appeal an interim order under the Divorce Act.

"Leave" means the court's permission; an "interim order," also called an interlocutory order, is a short-term, temporary order made by a judge or and master between the start of a law suit and its conclusion by trial or settlement. If leave is required to appeal an interim order, someone unhappy with an interim order would have to make a preliminary application to the appeal court for permission to appeal an order before the appeal could be brought.

At present, and for the last several decades, we in British Columbia have proceeded on the basis that interim orders under the federal Divorce Act can be appealed as of right, without the necessity of leave, on the strength of s. 21(1) of the act:
"...an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act"
This was great, because s. 7(2) of the provincial Court of Appeal Act says that you cannot appeal an interim order without getting leave. Because of something called the doctrine of paramountcy, which has to do with how the constitution is interpreted, federal laws beat provincial laws on similar subjects, and if leave isn't required under the Divorce Act it can't be required by the Court of Appeal Act.

This was more or less the situation in Ontario when Mr. Elgner appealed an interim order without first seeking leave:
"[9] Mr. Elgner contends that s. 21(1) of the Divorce Act gives the right of appeal for all orders, interim and final, made under the Divorce Act. As the Divorce Act is federal legislation, he says that right is paramount over s. 19(1)(b) of the Courts of Justice Act [the equivalent of s. 7(2) of our Court of Appeal Act], which requires leave to appeal from interlocutory orders of judges of the Superior Court of Justice."
Unfortunately for Mr. Elgner, the Ontario Court of Appeal read s. 21(1) in light of other provisions of the Divorce Act, s. 21(6):
"Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed."
and s. 25(2):
"Subject to subsection (3), [the provincial government] may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings ...
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act."
In other words, although a plain reading of s. 21(1) suggests that leave isn't required, the Divorce Act expressly authorizes the provinces to make rules about appeals and says that Divorce Act appeals ought to proceed "according to the ordinary procedure governing appeals to the appellate court," and in British Columbia and Ontario leave is required to appeal interim order under the "ordinary procedure" spelled out in Ontario's Courts of Justice Act and BC's Court of Appeal Act.

Back to Elgner for a moment:
"[41] ... by spelling out in s. 21(6) that an appeal under s. 21(1) is to be 'asserted, heard and decided according to the ordinary procedure governing appeals', Parliament dictated that the provincial rules are to be followed when exercising the appeal right given by s. 21(1). As has been noted, s. 19(1) of the CJA was operative when s. 21(6) of the Divorce Act was enacted. It was the 'ordinary procedure' in Ontario for asserting an appeal from an interlocutory order. It can be assumed that Parliament, when enacting s. 21(6), was aware of the ordinary procedure in place in Ontario. It follows that Parliament could have inserted a provision that excluded the leave requirement. It did not. Instead, it chose to cede to the provinces the right to govern the procedure on appeal. ...
"[55] In conclusion, when ss. 21(1) and (6) of the Divorce Act are given their ordinary meaning and read in their entire context, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is clear that the right of appeal given by s. 21(1) is to be exercised in accordance with the ordinary procedures governing appeals of that nature. In Ontario, the ordinary procedure requires leave, if the matter to be appealed is an interlocutory order of a judge of the Superior Court of Justice."
Appeal decisions are rarely written with greater clarity and simplicity. Unfortunately, the reasoning in Elgner is directly applicable to s. 7(2) of our Court of Appeal Act, and the inescapable conclusion, should anyone choose to argue the point, is that leave is required to appeal interim Divorce Act orders in British Columbia. (In fact, I'm already aware of one case where the lawyer has decided to seek leave.)

On the one hand, this change in appeal practice will eliminate an uncomfortable distinction between interim orders made under the Divorce Act and those made under the Family Relations Act, for which leave is required. On the other hand, it raises a significant new barrier to Divorce Act appeals.

The general test for leave to appeal interim orders is set out in a 1992 decision of our Court of Appeal, Watson v. Imperial Financial Services Ltd. (I've put the important bits in bold):
"(a) The question to be decided on the appeal must be sufficiently important to the particular litigation or of such general importance that the court should hear it.

"(b) The court will consider the merits of the appeal and its prospect of succeeding, however, the mere fact that there may be some merit in the appeal, in that the Chambers judge may have erred in law or made a wrong assessment of the facts, is not necessarily determinative on an application for leave. The judge hearing the application may refuse it notwithstanding that he thinks there may be some error on the part of the Chambers judge who originally heard the application.

"(c) That the appeal is not vexatious, frivolous or simply a delaying tactic. In this respect the court will consider whether the appeal will incur needless expense and delays.

"(d) The court will consider whether the order being appealed decided any element in a final way and the effect of such interlocutory order on the parties to the action."
Watson was a civil case involving a bunch of corporations, but the key principles have been adopted in family law cases. This is how the test was put in Thorne v. Thorne, a Court of Appeal decision from 1997:
1. Whether the point on appeal is of significance to the general practice.

2. Whether the point raised is of significance to the action itself.

3. Whether the appeal is prima facie meritorious.

4. Whether the appeal would unduly hinder the progress of the action.

However, the court will impose a somewhat higher standard in family law cases than in general civil cases. For example, in Hyggen v. Hyggen, a 1986 Court of Appeal case, the court said:
"...in family matters it is only in the most extreme circumstances that leave to appeal will be granted in respect of interim matters."
and, to a similar effect in a 1998 case called Newson v. Newson:
"It is well settled that leave to appeal from interim orders in family matters should be granted only in extraordinary or, as it has sometimes been put, 'extreme' circumstances."
"Extreme" might be a bit extreme, but the point is that leave will be granted sparingly in family law cases as, I think, it should be. Interim orders are meant to give a measure of rough and ready justice by addressing issues that cannot wait until trial in a speedy, cost-effective manner; requiring a party to obtain leave will help to weed out meretricious appeals and avoid expensive delays.

My thanks, again, to Agnes for bringing Elgner to my attention. I have a sneaking suspicion that case is about to change how we practice family law in British Columbia.