To appeal an order made against you in family court, you will need to convince the court to stay the order so as to ensure that the status quo immediately prior to the making of the order is preserved.
When considering whether to stay the order under appeal pending the outcome of the appeal, the court will apply a three-part test as follows:
- Is there a serious issue to be tried?
- Will there will be irreparable harm if a stay is refused?
- Does the balance of convenience favour granting a stay of the order?
1. SERIOUS QUESTION TO BE TRIED
When determining whether there is a serious issue to be tried, you will only need to convince the court that your appeal has some merit and that it is arguable not frivolous.
2. IRREPARABLE HARM
Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured”, usually because one party cannot collect damages from the other. In family law cases, irreparable harm can be found when the best interests of the children involved may be compromised. In cases involving financial issues, where one party is impecunious and the effect of the order could not be “undone” after the hearing of the appeal, then irreparable harm may be found.
3. BALANCE OF CONVENIENCE
When considering the third part of the test, the court ought to consider which of the parties would suffer greater harm from the granting or refusing of the stay pending the appeal.
The three-part test has been used in British Columbia family law cases courts to ensure the best interests of the children are protected (see Harvey v. Pocock, 2018 BCSC 2139) and to ensure the financial status quo is preserved pending an appeal (see Zhou v. Fang, 2019 BCSC 2023), and is important to keep in mind if you are looking to appeal an order made against you in a family law matter.
If you or a loved one are in need of advice regarding appealing an order, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at [email protected] or 778-372-7107.
