Appeals

You may also choose to file a case book. The case book is a document that contains legal cases that are considered relevant to the appeal issues. The book may be filed jointly by both parties. It should be filed within 14 days of when the appellant files the factum if the appellant is filing a case book on their own. It should be filed within 14 days of when the respondent files their factum if it is filed jointly, or if it is filed by just the respondent.

The time depends on what legislation you are dealing with. You will have to check the statute to confirm the deadline to appeal. For example, the Divorce Act states that you have 30 days to appeal after an order was made under the Act. The Divorce Act also states that you can’t appeal the granting of a divorce itself on or after the date on which the divorce becomes effective.

The Court of King’s Bench Rules state that if you are appealing the decision of a Master, Registrar, or Assessment Officer you only have 14 days to appeal after the order, certificate, or decision is signed.

For information on appeals to the Court of Appeal you should read:

• • The Court of Appeal Act – https://web2.gov.mb.ca/laws/statutes/ccsm/c240e.php
  • Court of Appeal Rules – https://web2.gov.mb.ca/laws/regs/current/_pdf-regs.php?reg=555/88%20R

The Court of Appeal Rules state that a notice of appeal shall be filed:

1. In a case where a judgment appealed from must be filed, within 30 days after that filing,
2. In other cases, within 30 days after the pronouncement of the judgment appealed from, and
3. Appeals arising under any Act shall be started within the time that is set out in that particular Act.

Leave (permission from the court) is needed in certain cases. Leave is needed to appeal a decision that is based on a consent order or that is for an order of costs against a party. If the order of costs is against a lawyer, leave is not required to appeal. If you have to ask for leave, you will need to file a Notice of Motion for Leave to Appeal, an Affidavit, and the reasons for decision of the lower court judge.  You must also serve the motion and affidavit on the other party and will appear before a single judge of the Court of Appeal.

You have to file and serve a Notice of Appeal. The Notice of Appeal should set out which judge and court is being appealed from, the place of the hearing, the date that the order was pronounced (given by the judge), the grounds of the appeal, and the relief being requested. You must also indicate whether oral evidence was given at the hearing.

If you are filing an appeal from a consent order or order of costs you must first file a Notice of Motion and Affidavit asking for leave to appeal before proceeding.

You can find Court of Appeal forms at the following link:

https://web2.gov.mb.ca/laws/rules/regforms_e.php?set=appeal

You must also file an appeal book, factum, and the transcripts. The appeal book is a bound book with an index that has copies of the documents that were filed in court that are relevant to the appeal. Some examples of documents include motions, affidavits, orders, and judgments.

A factum is a document that contains your argument for the appeal. The four parts of a factum are

• • The overview of the appeal issues,
  • The statement of facts,
  • The specific points in issue, and
  • The statement of argument

The factum should also contain the standard of review for each issue and the jurisdiction of the court to decide the appeal. The factum should be less than 30 pages.

What are case books?

You may also choose to file a case book. The case book is a document that contains legal cases that are considered relevant to the appeal issues. The book may be filed jointly by both parties. It should be filed within 14 days of when the appellant files the factum if the appellant is filing a case book on their own. It should be filed within 14 days of when the respondent files their factum if it is filed jointly, or if it is filed by just the respondent.

You should make five copies in total. Three copies of both the appeal book and factum must be filed with the court. You must also serve copies of both documents on the other party. In addition, you should keep a copy of the appeal book and factum for yourself.

The appeal book must be filed 45 days after the filing of the transcript of evidence. If no transcript needs to be filed, then the timeline is 45 days after the Notice of Appeal is filed. You must serve a copy of the appeal book on the other party within five days of filing it.

If the respondent feels that there is evidence missing from the appeal book, then they can file their own appeal book to add the missing information. The same timelines apply as to the appellant’s factum. The respondent must file the appeal book within 45 days of the transcripts of evidence where applicable, and 45 days after the Notice of Appeal where transcripts are not applicable. The factum must also be served within five days of filing it.

Yes. The respondent has 30 days to file a factum after they are served with appellant’s factum, and a further five days to serve the factum on the other party if a transcript is required. If no transcript is required, then the respondent’s factum should be filed and served within 30 days after being served with the appellant’s factum.

You have to apply for an order of extension of time to appeal. You must file a Notice of Motion and Affidavit and appear before a Court of Appeal chambers judge. Your Affidavit must show the court that:

• • You had a continuous intention to appeal,
  • The intention to appeal was within the proper appeal period,
  • You have a reasonable explanation for the delay,
  • There are arguable grounds for appeal, and
  • Any potential harm to the other party can be dealt with by awarding money to compensate.

You can appeal the decision of a Master to a judge of the Family Division by filing and serving a Notice of Appeal from a Master (or Registrar or Assessment Officer) to a Judge within 14 days after the order, certificate, or decision is signed. Your Notice of Appeal must set out what you are asking the court for (relief) and what your grounds are for the appeal.

Next Steps:

1. File a Notice of Appeal (Form 62A) in the court centre where your file is located:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=62A

2. Serve the Notice of Appeal on all the parties whose interests may be affected by the appeal.

3. File an appeal brief and serve it on all interested parties within 60 days after the Notice of Appeal is filed.

4. You must obtain a contested hearing date from the Registrar and file and serve a Notice of Hearing Date (Form 62B) within 30 days of filing and serving the appeal brief: https://web2.gov.mb.ca/laws/rules/form_2e.php?form=62B

A decision of a family court judge must be appealed to the Manitoba Court of Appeal by filing a Notice of Appeal.

Court of Appeal forms can be found here:

https://web2.gov.mb.ca/laws/rules/regforms_e.php?set=appeal

Usually you will appear before three judges. The appellant generally presents first, followed by the respondent. The appellant is given time for a brief rebuttal. However, the Court of Appeal can vary the order in which presentations are made. They may ask for the respondent to speak first or they may have no questions for the respondent. They may just question the appellant or respondent instead of allowing a party to proceed with their argument. Be prepared for interruptions from your prepared argument to respond to questions from the judges or to debate certain issues with the other party when the court asks you to do that.

First you must approach the judge who made the order that you are appealing from and ask for a stay of the order. A stay can be requested right at the hearing after the judge makes the order and when you indicate that you are intending to appeal. If you decide to go ahead with an appeal after the hearing, you can file a Notice of Motion and affidavit requesting a stay, to the same judge. The judge may request that the party go ahead with the appeal within a certain period of time or provide security as a condition of the stay. Security is a deposit of money with the court that guarantees that the other party will be paid.

You must convince the judge that irreversible harm will result if the order is allowed to stand until the appeal is heard. If the trial judge denies the stay application, you may proceed with a Notice of Motion and affidavit to the Court of Appeal chambers judge and make your request for a stay to that court. You must get the written reasons for the trial judge’s refusal of a stay to provide to the chambers judge at the Court of Appeal.

Yes, you can appeal the decision to deny the stay to the full panel of judges at the Court of Appeal.

You can file a Notice of Motion and affidavit for a motion of further evidence. The motion is considered on the day that the appeal hearing is heard. The affidavit that the court reviews should contain information about the general nature of the further evidence that you want to introduce, how the further evidence is likely to settle the issues of the appeal, and why the evidence was not heard at the previous court hearing. A second affidavit should be filed that attaches or identifies the further evidence in a sealed envelope that should only be reviewed by the court if the motion is successful.

The Manitoba Court of Appeal prefers that the parties go ahead with a trial instead of appealing interim orders. The trial judge does not have to follow the interim order and can make a brand new order. The Court of Appeal has said that interim orders are discretionary orders that are made looking at the specific facts involved at that time. This will not be changed on an appeal unless there is a serious error about a principle of law, complete misunderstanding of the evidence, or the decision is so clearly wrong that it amounts to an injustice.

They can set aside the entire order, set aside part of the order, or vary (change) the order upon appeal. They can also substitute their own decision instead of what the lower court ordered.

The Court of Appeal is usually the final level of appeal available. The highest court is the Supreme Court of Canada, but you are not guaranteed an appeal to that court. You must apply for leave (permission) to appeal and demonstrate that your case is of public importance or of a nature or significance that the Supreme Court should hear it. You must file a written application for leave to appeal with the court.

The Supreme Court of Canada has resources and forms for self-represented litigants on their website:

https://www.scc-csc.ca/unrep-nonrep/index-eng.aspx

They can set aside the entire order, just part of the order, or vary (change) the order upon appeal. They can substitute their own decision instead of what the lower court ordered.

A decision of a family court judge must be appealed to the Manitoba Court of Appeal by filing a Notice of Appeal.

The time depends on what legislation you are dealing with. You will have to check the statute to confirm the deadline to appeal. For example, the Divorce Act states that you have 30 days after an order was made to appeal the decision. The Act also states that you can’t appeal the granting of a divorce itself on or after the date on which the divorce becomes effective. The Court of King’s Bench Rules state that if you are appealing the decision of a Master, Registrar, or Assessment Officer you only have 14 days to appeal, after the order, certificate, or decision appealed from is signed. For information on appeals to the Court of Appeal you should look at The Court of Appeal Act and Court of Appeal Rules:

https://web2.gov.mb.ca/laws/statutes/ccsm/c240e.php

https://web2.gov.mb.ca/laws/regs/current/_pdf-regs.php? reg=555/88 R