Family law appeals: Simplify the process

I have previously written about the complexities of family law appeals. I would certainly agree with those who  argue that such appeals should be discouraged but let’s all agree that there are times when lower court results are not entirely in accord with accepted jurisprudence and family law litigants should have access to the appeal process to address legitimate concerns.

My friends (in more than the perfunctory court sense) Michael Zalev and Aaron Franks of Epstein Cole, LLP in their highly respected “This Week in Family Law” commented recently on the appeal process in Ontario:

“The appeal routes in Ontario are incredibly convoluted and frustrating, with appeal routes depending on such things as the statute under which the order appealed from was made; whether the order being appealed is final or interlocutory; whether the order being appealed from is from a Unified Family Court, the Superior Court of Justice or the Ontario Court of Justice; the monetary amount being appealed …” All true, of course. This complexity does not benefit the courts nor family law litigants. It is a legal minefield waiting to blow up in the face of the not fully informed self-represented litigant or family law counsel. Remember it was not too long ago that a distinguished Appeal Court Justice led his support for amendments of these rules and not too long ago that these rules were indeed amended. With no disrespect to those involved, more simplification must now be done and must be done right away. It is largely an access to justice issue. There is not a week that goes by that I don’t either get a request for an appeal opinion with concerns about correct process or more usually just a call from family law counsel seeking my advice on the proper appeal route for a matter. I do not ignore some of the complexities in sorting out these rules but surely, a committee of lawyers and judges, smarter than this writer, could and should come up with a focused, family law solution to this problem with a single articulated route to the appeal process. This will not encourage appeals as some might argue but instead reduce cost and streamline the process for all. The right of appeal is an essential piece in the rule of law mosaic. Simplifying the process strengthens the rule of law.