Parties who receive an unfavourable result in a family law proceeding may want to initiate an appeal. However, appealing a judge’s ruling is not straightforward. Higher courts respect a trial judge’s decision-making process and will show deference to certain findings that a judge makes. The appealing party needs to show that the judge’s decision is incorrect or contains a legal error. In other words, an appeal court cannot change a lower court’s decision simply because different judges might disagree with it.

Significant Deference Given to Matters Relating to Support

In Hickey v. Hickey, the Supreme Court of Canada set out the approach that courts should take on appeal to the review of support orders. The Court noted that family law legislation grants judges the authority to decide support matters which “involves the exercise of considerable discretion by trial judges”. This requires judges to balance the objectives set out in the federal Divorce Act and provincial statutes “with an appreciation of the particular facts of the case”. Moreover, because the process is fact-based and discretionary, trial judges must be given deference by appellate courts when decisions are being reviewed.

The Supreme Court also emphasized a longstanding principle that “appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong”. The Court in this case noted that there were important reasons why significant deference is owed to trial judges. First, it recognized the discretion that is involved in making a support order, and that it is best exercised by the judge who has directly heard from the parties. It also avoids giving an incentive to parties to appeal, hoping that an appeal court will weigh relevant factors and evidence differently and come to different conclusions. Instead, this standard of review promotes finality, minimizes expenses, and “recognizes the importance of the appreciation of the facts by the trial judge”. Ultimately, an appeal court cannot overturn a support order because it would have made a different decision or balanced the relevant factors differently.

Deference Respects a Judge’s Evaluation of the Facts

A trial judge’s factual findings are also entitled to substantial deference on appeal. In Rados v. Rados, the Ontario Court of Appeal reiterated that “substantial deference” is owed to a trial judge’s findings of fact. This includes a judge’s credibility assessments. As the court put it in Slaughter v. Slaughter, deference on these questions recognizes the judge’s appreciation of the facts. Consequently, appeal courts should only intervene if the fact-related aspects of the judge’s decision in a family law case “exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”.

This standard of review means that parties may not simply appeal when they receive an unfavourable ruling. In Froehlich-Fivey v. Fivey the appellant appealed from a trial judgment dealing with equalization of net family property as well as the calculation of spousal and child support. The appellant also sought to admit fresh evidence. When it came to the merits of the appeal, the Court explained that there is a stringent standard of review. Looking to Slaughter, that case held that a trial judge is entitled to deference on an appeal, which promotes finality in family law litigation. In Froehlich-Fivey, the Court could not find that the appellant met the test.

While she challenged the lower court decision on the grounds there were errors of law, the Court did not accept that claim. Specifically, the appellant complained about the income that was imputed to her and the valuation of the respondent’s business. However, as the Court pointed out, the trial judge gave reasons for the amount of income that was imputed. Also, on the issue of the business valuation, the trial judge preferred the evidence of the respondent’s expert over the appellant’s, and the judge was entitled to make that decision. Ultimately, the appellant was merely challenging the factual findings that the judge made and it was not their role to re-find facts. Without a clear error in principle, the Court refused to interfere with the trial judge’s findings.

Judges Need to Give Adequate Reasons for Their Decisions

In the family law context, the Supreme Court of Canada has indicated that appellate courts should “give considerable deference” to the findings of trial judges. However, in some cases, a deferential standard cannot be maintained, for example, when an order is made without adequate reasons. In Lawson v. Lawson, the Court explained that judges have a duty to give reasons underlying a decision and an appellant is entitled to these reasons so they may know why issues were decided against them.

The Court also suggested that there is a tension between the right to adequate reasons and the need for deference. But, when an order is made without adequate reasons, “unless the reasons are implicit or patent on the record, an appellate court has no access to the underlying reasons for the order and cannot afford it deference”.

What Happens if a Trial Judge’s Reasons Are Not Sufficient?

This was an issue in Phelps v. Childs where the parties proposed different values for property that was owned on the date of marriage and on the valuation date. The appellant suggested the respondent understated the value of property that he owned on the date of marriage and overstated the value of property that the appellant owned. According to the appellant’s net family property calculations he was owed $3,410.17 for equalization, while the respondent’s indicated she was owed the sum of $20,775.23. The trial judge agreed with the respondent.

The appellant argued that the trial judge failed to conduct an analysis or explain why he found in favour of the respondent. On appeal, the Court agreed. While the trial judge discussed the disparity in the parties’ positions, the decision concerning their calculations was only three paragraphs. Ultimately, the trial judge’s reasons were not sufficient to enable the reviewing court to “know whether the applicable legal principles and evidence were properly considered”. Consequently, the appeal was allowed on that issue.

An Appeal is Not a Rehearing of a Case

It is important for parties to understand that an appeal is not an opportunity to conduct a new trial or complete rehearing of a case. Further, the degree of deference that an appeal court gives a trial judge’s findings can impact the likelihood of an appellant’s success on an appeal. Parties who are thinking about an appeal should consider the possible costs and time involved in pursuing an unsuccessful appeal.

Contact the Toronto Family Lawyers at NULaw for Advice on Family Law Disputes and Litigation

The skilled family litigation lawyers at NULaw in Toronto help clients throughout the Greater Toronto Area develop a strategic approach to their separation and divorce needs. We take a client-centered approach and ensure our clients have cost-effective options regardless of their circumstances. We work closely with clients to help them understand their options and empower them to make informed decisions at every step of the process. Whether you are contemplating a separation or have questions about appealing an existing order, contact us online or call us at 416-481-560 to learn how we can assist you.

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