During the course of your family court case, there may be many points at which a judge issues a ruling that you may not like.
- Your ex got awarded sole custody of your children pending the trial, whereas you wanted custody to be joint. You want to appeal that outcome because you want to remain involved in the lives of your children.
- You and your ex are divorcing and are fighting over the amount of spousal support you must pay. You are currently out of work, but the court has ruled that your unemployment is deliberate, and that you should be responsible for paying spousal support as if you were still working. You feel that this is unfair.
This list can go on – there are many issues and sub-issues that a court can rule on in a Family Law matter.
In the face of any unfavourable ruling, you may be wondering whether you should “fight it” – which typically involves bringing a formal appeal. This could be an appeal of a ruling on a motion or application, or it might be an appeal of a ruling, or an aspect of it, after the ultimate trial itself.
Regardless of the litigation stage you are at, the first questions you should ask yourself are: What is the cost? And what is the benefit?
To answer those questions, you must consider not only the immediate costs and benefits, but the long-term consequences as well. Here are some of the factors to think about as you make your decision.
Think About the Timing
Sometimes, the answer may depend on where the unwanted ruling fits into the overall course of the litigation.
For example, if the ruling is on an interim matter, let’s say the temporary amount of child support that you need to pay to your ex, it may not make sense to launch an appeal because the issue will be fully and finally determined at a later date. The months that it will take between the interim hearing and the ultimate determination may not justify the hassle.
This is especially true if the amount that you are ordered to pay is not significantly different than the amount that you think you should pay; often a negligible difference can be eaten up by the time, expense and hassle to fight the issue on appeal. Plus, the court presiding over the later hearing can make retroactive adjustments to the overall support amount, if necessary.
Think About the Impact
The nature of the issue you want to appeal is also a key consideration, particularly where your child would be affected. If you succeed in appealing a short-term ruling and it means that your child’s present living arrangements, standard of living or routines will be affected, then you may end up with a short-term victory that has a longer-term negative impact on your child.
On the other hand, if the matter is significant both in time and overall litigation strategy – for example, an unfavourable ruling in connection with your pension entitlement, or an unequal division of your Net Family Property – then it may indeed be worth the time and cost to launch an appeal.
Think About the Costs
The other aspect to consider, is the question of costs. It is a basic principle in Canadian litigation that costs are generally awarded to the successful party. This means that if you have lost once and are not successful a second time on appeal, you will essentially be hit with costs a second time – and these can include some portion of the legal costs incurred by your ex as well as the fees you incurred.
Think About Why You Want to Do It
The final consideration is a more personal one: You should consider your true motivation behind fighting a ruling that does not go in your favour.
Are you doing it because you genuinely believe the outcome was not grounded in proper legal concepts, was based on an incorrect view of the facts, or was legally unfair?
Or do you simply view this unwanted ruling as a personal loss or setback, and you want to “get even” with your ex?
Divorce can be very emotional, but don’t let your emotions drive you to do something that won’t actually benefit you (and perhaps your children) after the divorce has been finalized.
Remember, you may not succeed on appeal. And even if you do, the time and expense may water down your sense of vindication. Family litigation can span for years if couples continue to fight. There can be some inherent value in bringing an end to the acrimony and moving on with your life.