Can You Appeal An Interim Parenting (Access) Order?

The BC Court of Appeal recently considered the circumstances under which a parent can appeal an interim parenting order, in the case of Hammond v. Hammond 2020 BCCA 314.

The general rule is that if the interim order is made pursuant to the Divorce Act, there is an appeal as of right, but if the order is made under provincial legislation, the Family Law Act, “leave” or permission to appeal must be applied for in the Court of Appeal.

In Hammond the parents were married for 10 years, separating in 2018, two years after the birth of their son. In 2019 they entered into a consent order which included the following term:

” The child of the marriage shall, for the time being, continue to reside primarily with the Claimant mother. Provided however, the parties acknowledge their intention is to work toward an equal shared parenting regime so long as that objective meets the physical and emotional needs of the child. The parties further agree to review parenting time annually each September, or more frequently if agreed upon by the parties and circumstances warrant such a review.”

As an aside, terms such as this one are frequently inserted into agreements where one parent is of the view that shared parenting is not in a child’s best interests at the time the agreement is under negotiation. It is intended to provide some comfort or security to the other parent that his or her desire to be a fully involved co-parent is on the horizon. However, in my experience these terms suggesting an expansion of parenting time, rarely result in agreement, and most frequently, end up in court. Nonetheless, if a review term is the only way to provide an open door, it is better than nothing.

Mr. Hammond’s application to vary the consent order to expand his parenting time to an equal schedule was dismissed in July 2020. The court’s rationale was that the child’s anxiety, as alleged by the mother, had not subsided since the 2019 consent order and therefore, increased parenting time was not in the child’s best interests. Interesting that Mr. Hammond’s application was a variation application, which requires a material change in circumstance, and not a “review” as indicated in the consent order, which does not.

Unfortunately the judge’s reasons and the court order did not specify whether the dismissal order was made under the Divorce Act or the Family Relations Act, a fact central to the question of whether the appeal was allowed as of right. Mr. Hammond’s counsel also could not identify the applicable legislation.

As a practice point, if counsel is acting for a legally married litigant, the authority for an interim parenting order, in fact any interim order, should always be the Divorce Act. Of course, principles from the Family Law Act are relevant, as are cases, but the Notice of Application is rendered confusing if counsel cites the Divorce Act, as well as the provincial legislation. In marriage-like relationships the applicable legislation is the Family Law Act, thus eliminating any right to appeal an interim order.

Query if the distinction is fair to parents in marriage-like relationships? Of course, it is not….I wonder why this has not yet been addressed by legislators?

The reason it is unfair is because of the high bar that must be met to convince the Court of Appeal to grant leave to appeal an interim order. The criteria are as follows:

(1) whether the point on appeal is of significance to the practice; 

(2) whether the point raised is of significance to the action itself; 

(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and 

(4) whether the appeal will unduly hinder the progress of the action. Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.

The appeal court has said on several occasions that it is only “in the most extreme circumstances” that leave will be granted to appeal family law interim orders. Munro v. Munro 2015 BCCA 530.

Twenty-four years ago, Madam Justice Proudfoot declared that access order are rarely final orders, because variations are applied and granted. She also said:

“…one could only imagine the number of access appeals that would arrive in this Court if leave were not required.” A.L.J. v. S.J.M. (1996), 81 B.C.A.C. 268.

Lawdiva aka Georgialee Lang

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