For those whose Family Law matters have wound their way through multiple hearings – in pre-trial motions, and the trial itself – they may believe that anytime they are faced with an unfavourable ruling, the automatic answer is simply to launch an appeal.
Because they may be overlooking a little-discussed principle called “deference”.
What is deference?
Deference is a legal concept that refers to the fact that whenever an Appeal Court is asked to review the decision of a trial judge, that Court must show respect for that prior judge’s decision-making process, in connection with certain findings of facts and the law. This is not to say the Appeal Court must show blind reverence or subservience to the trial judge’s ruling; rather, it must gauge the correctness and reasonableness of the earlier trial ruling in accord with established legal principles and standards of review.
It’s an important legal principle and it can come up in many different contexts; for example, the Supreme Court of Canada recently released a trilogy of cases, headed up at the forefront by a decision called Canada (Citizenship and Immigration) v. Vavilov, that squarely addresses this key issue as it relates to the judicial review of administrative tribunal decisions. The Vavilov decision clearly sets out the standard of deference that must be afforded to certain aspects of a tribunal’s ruling, and what the appropriate overall standard of review is.
Significant vs. Substantial Deference
There are two important refinements to be aware of as the concept of “deference” applies specifically to trial-level Family Law rulings that are brought before a Court of Appeal.
1) Support Orders:
For orders by a trial judge awarding spousal or child support, an Appeal Court must show “significant deference”. This was the upshot of the Court’s 1999 ruling in a case called Hickey v. Hickey was summarized in a recent Ontario Court of Appeal ruling in Belanger v. Belanger, as follows:
The Supreme Court of Canada has instructed courts of appeal to accord significant deference to the decisions of trial judges relating to support orders. The discretion involved in making a support order is best exercised by the judge who has heard the parties directly. The deferential standard of review avoids giving parties an incentive to appeal judgments to attempt to persuade the appeal court that the result should be different. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.
An appeal court can therefore only interfere with the trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
2) Findings of Fact:
It has also been confirmed in the Ontario cases of Johnson v. Hinde and Rados v. Rados that an Appeal Court must give “substantial deference” on appeal to a trial judge’s determinations of fact, “especially in family law cases”. This includes a trial judge’s assessments as to the litigant’s credibility. The result is that an Appeal Court can interfere only where the fact-related aspects of the trial judge’s decision in the Family Law matter “exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”.
For Family litigants, the simple takeaway is this: Not all appeals stand the same chance of success. When faced with appeals of certain fact-based rulings by trial judges, Appeal Courts are instructed to disturb or override them in confined circumstances only. This leaves intended Appellants with a higher hurdle to overcome – as well as the prospect of wasting time, effort and money in launching an appeal that will go nowhere.
Full text of the decisions:
Ballanger v. Ballanger, 2020 ONCA 626
Hickey v. Hickey, 1999 691 (SCC),  2 SCR 518
Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374
Johanson v. Hinde, 2016 ONCA 430
Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65