Frequently Asked Questions
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 Actstates that you have 30 days after an order was made to appeal the decision. 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 Queen’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:
Leave (permission from the court) is only 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. You have to ask for leave from the judge who made the order.
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 must also file an appeal book, factum, and the transcripts. The appeal book is a bound book that has copies of the documentary evidence that is relevant to the appeal. A factum is a document that contains your argument for the appeal. The four parts of a factum are
The factum should be less than 30 pages.
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 the factum, and a further five days to serve the factum on the other party if a transcript is required.
You have to apply for an order of extension of time to appeal. You must show the court that:
You can appeal the decision of a Master to a judge of the Family Division by filing and serving a Notice of Appeal 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.
A decision of a family court judge must be appealed to the Manitoba Court of Appeal by filing a Notice of 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.