Judges are only human. They make their decisions based on the evidence at hand. Sometimes, they can make the wrong decision. Though errors in judicial decisions are rare, they are known to happen. The judge may have misinterpreted the law; maybe one of the parties involved omitted key information; a lawyer could have misinterpreted the facts.
Whatever the design of the error, the Canadian legal system offers recourse in the form of the appeals process. In this week’s blog, we’re going to examine how to appeal a court order, as well the common types of cases that are appealed.
Appealing a Court Order – How it Works
Under section 233(1) of the BC Family Law Act, final decisions of the BC Provincial Court can be appealed to the BC Supreme Court. There are two scenarios under which an appeal will likely be successful:
- The Judge made a mistake in the law, and/or
- The Judge completely misunderstood the evidence at hand
When a judge reaches a decision at a hearing, they undertake three separate but equally important actions. First, they will make a decision regarding the evidence and what the facts of the case are. This is referred to as making a finding of fact. Next, they make a decision on what law is applicable to the case. Finally, they will apply the law to the facts of the case. These last two steps are known as findings of law.
Neither party involved in a judge’s decision can appeal because they’re unhappy with the decision. Instead, they must have a concrete legal reason to bring the appeal and highlight that the judge erred in their finding of fact, or findings of law.
From our experience in family law, we’ve learned that appeals based on a mistake in the judge’s findings of fact are extremely rare. Usually, appeals are based on errors in the judge’s conclusions about the applicable law, or how the judge applied the law to the facts at hand. Family law lawyers who successfully argue for appeals, will often argue that the judge didn’t apply the correct legal test, or failed to properly apply the legal test.
As these appeals usually deal with complex legal issues, rather than factual issues, your case can quickly become very complicated. It’s crucial to consult with a family lawyer at this juncture to give yourself the best chance of a successful appeal.
Types of Cases that Can Be Appealed
Parties can appeal the decision of a BC Provincial Court judge or judicial justice to the BC Supreme Court in the following types of cases:
- Small Claims
- Family Law
- Criminal Code Summary Conviction Offences
- Traffic and Bylaws
It’s worth noting, appeals do carry a relatively significant cost. First, the party will have to pay a fee to file a document known as a Notice of Appeal. Secondly, the party will have to pay for the transcript of the hearing, and copies for the other side and the court.
Get in Touch
If you’re looking for advice on appealing a court order, our law experts at Westside Family Law are standing by to assist. Get in touch and we’ll be happy to discuss your options.