Since the media is so full of Supreme Court of Canada stories recounting overturned criminal convictions or acquittals and Indigenous rights affirmed or denied, you might be surprised to learn that a relatively high percentage of those who apply for leave (permission) to appeal family law cases to the Supreme Court of Canada actually receive such leave to have their day before the highest court in the land. The latest available 2017 stats from the SCC say only 2% of leave applications were in family cases, meaning only about 8 people in Canada (out of a total of 429 leave applications for all subjects) tried to get their family law cases heard by the Court.
While the SCC unfortunately doesn’t explicitly break down numbers of family cases where leave was granted in its online Statistics Report 2017, pulling all 2018 judgments from the SCC shows the Court actually decided two family cases that year (the year when a case receiving leave in 2017 would most likely be heard, though dates could vary plus or minus a year). That would represent an extraordinary leave grant rate of 25% (2 cases out of 8) for family law matters, where the usual rate of granting leave for all types of cases before the SCC is about 1 in 10:
Moore v. Sweet, 2018 SCC 52 - unjust enrichment claim by former spouse to life insurance proceeds decided in her favour against new common law spouse, even though Court of Appeal had ruled against former spouse, with SCC splitting 7-2 on result;
Office of the Children’s Lawyer v. Balev, 2018 SCC 16 - Hague Convention on Child Abduction determination of habitual residence of child removed from other country to Canada, with SCC splitting 6-3 on result.
Even if the math is off a little in assumptions on year leave is applied for versus year cases are heard and judgment is granted, and we round down to a 1 out of 8 appeals heard versus leave applications made for family cases, that still puts the odds for having your family case heard by the Supremes above the average 1 in 10 rate for all types of cases.
Thus if you’ve been unsuccessful in your family law case in the highest court of your province or territory, you’ve definitely got a shot at SCC leave. You need not be deterred by the fact that the SCC only produces one or two family law decisions a year, if only about 8 people throughout all of Canada each year are even asking the Court to hear their family cases. Those aren’t bad odds.
Yes, there will be a lots of family litigants who are exhausted both emotionally and financially from the already long fight up to a provincial court of appeal such that they just will no longer have it in them to ask the SCC to get involved. But for others, there is definitely hope.
Here are my top three tips for family litigants hoping to get to the SCC (or responding to a SCC leave application).
1. Be on Time With Serving and Filing for Leave to Appeal Your Family Case - you’ve only got 60 days from the date of the judgment you’re seeking leave to appeal to serve and file a complete leave to appeal application (NOT just a notice) with the Supreme Court of Canada.
2. Understand Limits of SCC Jurisdiction Over Family Cases - only family law judgments from the highest court of any province or territory can usually be subject to a Supreme Court of Canada leave application. There are a few rare exceptions to this, but generally you need to have exhausted all possible appeals in the provincial or territorial court system before petitioning the Supremes. However, you don’t need a “final” judgment on which to seek leave. An interlocutory temporary order could be just as much the subject of a leave to appeal application.
This means in Ontario, for example, that you if you’re fighting over child custody, and you’re in an “ununified” jurisdiction where the Ontario Court of Justice usually hears those types cases, you might have already had two levels of appeal - to the Ontario Superior Court of Justice and the Court of Appeal for Ontario - prior to getting to the SCC leave stage. Be aware that interlocutory family orders in Ontario have a different appeal route - to the Divisional Court - and tests to meet for being able to appeal, as compared to final orders.
3. Know How to Sell the “Public Importance” Aspect of Your Family Case to the Supremes - the test set out in s. 40 of the Supreme Court Act for granting leave to appeal is “public importance or the importance of any issues or law or mixed fact and law … or is, for any other reason, of such a nature or significance as to warrant decision by” the Court. So sell the issue(s) you’re hoping the Court will hear as novel, as being of importance to all Canadian families, as being subject to conflicting family court decisions throughout Canada (or at least within your province), and generally as having great ramifications beyond your own family circumstances.
Gordon Scott Campbell serves as counsel throughout Canada on Supreme Court of Canada leave to appeal applications and appeals, as well as acting as a required agent with the SCC for lawyers from outside the National Capital Region. Appeals before the Ontario Divisional Court and Court of Appeal for Ontario, as well as transnational proceedings including Hague Convention matters, are focusses of his family law practice. He previously served with the Department of Justice Canada and the Ministry of the Attorney General of Ontario.