How to Appeal a Supreme Court Family Law Decision to the BC Court of Appeal

Appealing a decision to the BC Court of Appeal is a critical step in family law cases. At this level, your case is reviewed by a panel of three judges, who consider whether the trial judge in the BC Supreme Court made an error that affected the outcome. For an appeal to succeed, at least two of the three judges must agree that the original decision was incorrect.

While appealing is generally less expensive than starting a full trial from scratch, the process is complex and requires strict compliance with procedural rules. Running an appeal without legal guidance is extremely challenging, and procedural mistakes can have serious consequences.

The Appeal Process at the BC Court of Appeal – How to Begin

1. Filing a Notice of Appeal

Within one month of receiving the Supreme Court judgment, you must file a Notice of Appeal. This document formally starts the appeal process and must be served on your ex-spouse or their legal representative.

1. Preparing the Appeal Factum
   Next, you must file an Appeal Factum. This document sets out the facts of your case, the applicable law, and, importantly, identifies the errors made by the trial judge. The factum forms the foundation of your argument before the appellate court.

2. Submitting Supporting Documents
   You are also required to provide additional materials, including:

• Trial transcripts

• Book of Authorities (legal cases and statutes you rely on)

• Book of Documents (key evidence from the trial)

Compliance with the BC Court of Appeal Rules is essential throughout the process.

Types of Errors the Court of Appeal Reviews

For the BC Court of Appeal to overturn a trial judgment, you must demonstrate that the judge made one of the following errors:

1. Errors of Fact – The trial judge misunderstood or misinterpreted the evidence.

2. Errors of Law – The trial judge applied the wrong legal principles or interpreted the law incorrectly.

3. Errors of Mixed Fact and Law – The decision involved both factual and legal mistakes.

Fact vs. Law: What Appeals Focus On

Appeals based solely on factual errors are less likely to succeed. The Court of Appeal typically defers to the trial judge’s findings on credibility and factual determinations. Unless the trial judge clearly made a mistake in assessing the facts, the original decision is usually upheld.

In contrast, errors of law present a stronger basis for appeal. If a trial judge applied the law incorrectly or misinterpreted a legal principle, there is a significantly higher chance that the Court of Appeal will overturn or modify the decision.

How to Start the Appeal Process

To appeal a B.C. Supreme Court family case, you must file a Notice of Appeal (Form 1) within 30 days of the order you want to appeal, indicating if leave to appeal is required. You will then need to file an application book and a Notice of Application (Form 4) for leave to appeal within 30 days of filing the Notice of Appeal, arrange for a transcript of the Supreme Court hearing, prepare and file a Factum (your written argument), and then schedule a hearing date. 

1. File a Notice of Appeal

• File a Notice of Appeal (Form 1) with the B.C. Court of Appeal within 30 days of the decision you wish to appeal.

• Be sure to check the box indicating that leave to appeal is required, which is necessary for most family law appeals.

• Serve a copy of the filed Notice of Appeal on all other parties. 

2. Prepare and file an application for leave to appeal

• Within 30 days of filing the Notice of Appeal, file a Notice of Application (Form 4) and an application book for your leave to appeal application.

• The application book contains all the documents needed for the court to decide if the appeal can be heard.

• Serve the Notice of Application and application book on all other parties. 

3. Obtain a transcript

• Immediately order and pay for a complete transcript of the oral evidence and reasons for judgment from the B.C. Supreme Court hearing. 

4. File your Factum

• After the application for leave to appeal is granted, or if leave was not required, you must file your Factum (a document outlining your legal argument).

• The Factum must explain the facts, the relevant law, and why the judge's decision was wrong.

• File your Factum within 30 days of the date your Appeal Record was filed. 

5. Schedule a hearing date

• After filing your Factum and a copy of any order under appeal, obtain a hearing date from the court registry. 

6. Attend the appeal hearing

• The appeal hearing will focus on the legal arguments, not on presenting new evidence unless the court grants permission.

• You may also provide a condensed book of authorities and/or a condensed book of evidence at the hearing. 

Why Legal Guidance Matters

Appeals are highly technical and involve strict deadlines, complex filings, and formal procedures. At Illuma Law, our team has extensive experience navigating the BC Court of Appeal and managing appeals in family law matters. We guide clients through every stage, from assessing whether an appeal is viable, to preparing the required documents, to representing you in court.

If you have questions about your family law matter, please feel free to reach out for a consultation with one of our family lawyers - Contact Us.