1. An appellant is the person appealing a decision of the Provincial Court. The respondent is the other party in the original application.

Transcription

1 AJustice Court Services Instructions: Appealing a Provincial Court Order Family Law Act This Instruction sheet provides general information only. You should speak to a lawyer for legal advice about your own situation BEFORE YOU BEGIN ANY PAPERWORK Consider discussing this matter with a lawyer A lawyer may give you options for solutions that you may not have considered. If you do not have a lawyer, you must put in the time and effort. You will be doing the work of a lawyer without a lawyer s training. GENERAL INFORMATION ABOUT APPEALS 1. An appellant is the person appealing a decision of the Provincial Court. The respondent is the other party in the original application. 2. An appeal of a Provincial Court decision is brought in the Court of Queen s Bench located in the judicial district where the order to be appealed was made. 3. To appeal, you must do the following within 30 days of the date the order was made: order the transcript of the Provincial Court hearing; file the notice of appeal with the clerk of the Court of Queen s Bench; and serve the respondent with a filed notice of appeal. Only in very rare cases will the court allow an appeal to be started after that time. Note that time runs from when the judge makes the decision, not from when the order is filed. 4. The Court of Queen s Bench will generally not look at new evidence for an appeal. They will only look at the documents that were filed in the Provincial Court in the original application and the transcript of the hearing in Provincial Court. 5. If you believe that circumstances have changed since the order was granted, you should apply to vary or change that order rather than appealing the order. A. Order the Transcript of the Provincial Court Hearing 6. Contact Transcript Management Services: In Edmonton: John E. Brownlee Building, 5 th Floor, Street, phone (780) In Calgary: Calgary Courts Centre, Suite 1901-N, th Street SW, phone (403) Outside Edmonton and Calgary: Red Deer Court House, Avenue, phone (403) The fee for the transcript will vary depending how long the transcript is. The fee is payable by cash, visa, mastercard or debit. 8. Tell the Transcript Management office that the transcript is for the purpose of an appeal, so they can prepare 3 official copies of the transcript for filing. 9. You will need a copy of the Request for Transcript form and a receipt when you file the Notice of Appeal as proof that you ordered the transcript. NCN1080 (Rev 04-Mar-2008) Page 1 of 4

2 B. Complete the Notice of Appeal 10. You must describe why you want the decision to be reconsidered in Grounds on which the appeal is based : list any errors you think were made in the granting of the order; be specific just saying the order is wrong is not sufficient. 11. Describe what you are asking the Court of Queen s Bench to do in the Nature of Order or other relief sought. The Court of Queen s Bench may do one or more of the following: confirm the order of the Provincial Court; set aside the order of the Provincial Court; make any order that the Provincial Court could have made; direct the Provincial Court to conduct a new hearing. C. File and Serve the Notice of Appeal 12. File the Notice of Appeal with the clerk of the Court of Queen s Bench located in the judicial district where the Provincial Court hearing took place. Give the clerk a copy of the Request for Transcript form and the receipt you obtained from Transcript Management Services. If you do not have a lawyer, the clerk of the Court of Queen s Bench will set an initial appearance date for you and the respondent to attend before a Queen s Bench Justice (within 40 days of filing the Notice of Appeal) to address any preliminary issues which may need to be decided before the hearing of the appeal. 13. The Notice of Appeal must be served on (given to) the respondent in one of the following ways: personally, by leaving the document with the respondent; by prepaid registered mail to the respondent s address for service; or as directed by the Court of Queen s Bench. Make sure that you record the date and location that each person was served and the method of service used. 14. Prepare and file an Affidavit of Service at the Court of Queen s Bench. D. Attend the Initial Court Appearance (if set for you by the clerk) 15. At the initial court appearance the Queen s Bench Justice may: set a date and time for the appeal hearing; provide further direction regarding the manner in which the appeal will be heard; and address any other preliminary matters which may need to be decided prior to the appeal hearing, including the evidence the court may allow the parties to present at the hearing. You should also be prepared to give an estimate of the time you will need to present your position on the appeal hearing date. E. File and Serve the Transcript 16. Once you receive your copies of the transcript, file the transcript with the Court of Queen s Bench and serve a copy on the respondent. 17. Prepare and file an Affidavit of Service at the Court of Queen s Bench. IMPORTANT NOTE: If you have not filed and served the transcript within 3 months of filing the Notice of Appeal, your appeal will be dismissed, with or without costs against you, without further notice to you. NCN1080 (Rev 04-Mar-2008) Page 2 of 4

3 F. Scheduling the Appeal Hearing 18. If a Queen s Bench Justice has not already set a date for the appeal to be heard, once the court receives all necessary documents, the clerk will set a date for the appeal and will send out notice of the date to all parties by registered mail at the addresses provided in the Notice of Appeal. All parties must inform the Queen s Bench Clerk s office of any change of address. G. Memoranda 19. No later than noon on the 14 th day before the appeal date, the appellant must prepare, file at the Court of Queen s Bench, and serve on the respondent an appeal memorandum setting out: the facts in brief; the relief sought; the argument and authorities on which the appellant intends to rely; and references to the evidence to be discussed. 20. No later than noon on the 7 th day before the scheduled hearing date, the respondent must prepare, file at the Court of Queen s Bench, and serve on the appellant an appeal memorandum setting out: the respondent s position on the relief sought by the appellant; any relief sought by the respondent; the argument and authorities on which the respondent intends to rely; and references to the evidence to be discussed. 21. Each party must prepare and file an Affidavit of Service at the Court of Queen s Bench. H. Attend the Appeal Hearing 22. Bring with you all of your paperwork and documents, including copies of the documents you have filed with the court; pen and paper to take notes. 23. On the appeal hearing date, the Queen s Bench Justice will hear the appeal on the basis of the material filed with or forwarded to the Court of Queen s Bench and any further evidence that the court requires or permits to be given. 24. The Justice may confirm the order (or refusal), set aside or vary the order made, make any order the Provincial Court could have made in the hearing before it, or direct the Provincial Court to conduct a new hearing. Remember to keep the Queen s Bench Clerk s office informed of any change of address for you or the Respondent(s), as absence of such information may result in you not receiving notice of the hearing date and the appeal proceeding in your absence. NCN1080 (Rev 04-Mar-2008) Page 3 of 4

4 HELP IS AVAILABLE 1. Lawyers LAWYER REFERAL SERVICE (ALBERTA) & DIAL-A-LAW Tel: (403) Lawyer Referral, Calgary Tel: (403) Dial-A-Law, Calgary Toll Free: LEGAL AID SOCIETY OF ALBERTA Tel: (403) * - Calgary Tel: (780) * - Edmonton ALBERTA LAW LINE Toll Free: Tel: (780) Edmonton 2. Family Justice Services FAMILY LAW INFORMATION CENTRES FAMILY MEDIATION SERVICES Tel: (403) * - Calgary Tel: (780) * - Edmonton Tel: (780) * - Grande Prairie Tel: (403) * - Lethbridge Tel: (403) * - Red Deer Tel: (403) * - Calgary Tel: (780) * - Mediation, Edmonton Tel: (403) * - Elsewhere in Province 3. Websites * call any of the numbers toll-free through the RITE line by dialing Check your courthouse for more detailed information about services available in your area. NOTES NCN1080 (Rev 04-Mar-2008) Page 4 of 4

5 Family Law Act Appeal to Court of Queen s Bench Within 30 days following the date the order is pronounced (or notice of the order is received by the appellant) [ARC R (2)]. Complete Notice of Appeal setting out the grounds of appeal and the nature of the order or other relief sought. Order and pay for a transcript of Provincial Court hearing [ARC R (1)]. Retain a copy of the Request for Transcript and proof of payment. Within 30 days of the date the order is made, file the Notice of Appeal with the Court of Queen s Bench located in the judicial district where the Provincial Court order was made [ARC R (1)(a)], and provide the clerk a copy of the Request for Transcript and proof of payment for the transcript [ARC R (1)(b)]. For self-represented appellants, the clerk will fix an initial appearance date (within 40 days of the filing date) for the parties to appear before a Queen s Bench Justice. Not more than 30 days after the order is made, the appellant must serve a copy of the filed Notice of Appeal on the Respondent(s) personally, by prepaid registered mail to the address for service, or as directed by the Court [ARC R (1)(b)]. Promptly upon receipt of the Notice of Appeal, the clerk of the Court of Queen s Bench shall give a copy of the Notice of Appeal to the clerk of the Provincial Court location where the order was made, and the clerk of the Provincial Court shall immediately forward the order appealed from, together with the filed documents relating to the order, including exhibits, to the Court of Queen s Bench [ARC R ]. If an appeal hearing date has not been fixed by the Court, the clerk of Court will schedule the hearing of the appeal once all necessary documents, transcripts and affidavits of service have been received by the Court. The clerk will notify the parties by registered mail of the time and place of the appeal hearing at least 30 days before the date set for the hearing [ARC R ]. If the parties were directed to attend an initial court appearance, the presiding Justice may set a date for the appeal hearing, and provide directions to the parties regarding any further preliminary matters. Unless otherwise ordered by a Queen s Bench Justice, if the appellant has not filed a copy of the transcript and served a copy on the respondent within 3 months of the filing of the Notice of Appeal, the appeal shall be dismissed, with or without costs, without further notice to the appellant [ARC R ]. Appellant must file and serve appeal memorandum no later than noon on the 14 th day before the appeal hearing. Respondent must file and serve appeal memorandum no later than noon on the 7 th day before the appeal hearing [ARC R ]. Appeal is heard by the Court of Queen s Bench on the appeal hearing date, as an appeal on the record. No other evidence shall be considered, unless ordered by the Court [ARC R ]. Court of Queen s Bench may confirm or set aside the order, make any order the Provincial Court could have made, or direct the Provincial Court to conduct a new hearing [ARC R ]. Revised 04-Mar-2008

6 QB COURT FILE NUMBER Clerk s Stamp PC DOCKET NUMBER COURT Court of Queen s Bench of Alberta JUDICIAL CENTRE APPELLANT RESPONDENT DOCUMENT Notice of Appeal Provincial Court Order (Family Law Act) ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT Appellant s Name Full address ( ) NOTICE TO THE RESPONDENT(S) The appellant has filed an appeal in this matter. You are a respondent. You have the right to state your side of this matter before the Court. To do so, you must be in Court at the initial court appearance as shown below: COURT DATE:,, 20. Weekday Month Day Year TIME: WHERE: Time of Day Courtroom (if known), Street address of courthouse BEFORE WHOM: Justice in Family Chambers At the initial court appearance, the Court will set a date for the appeal to be heard, provide further direction regarding the manner in which the appeal will be heard, and address any other preliminary matters which the parties may wish to raise with the Court in advance of the appeal hearing, including any evidence the Court may permit or require to be given. Go to the end of this document to see what else you can do and when you must do it. Notice of Appeal Family Law Act Revised January, 2011

7 - 2 - Nature of the appeal to be put before the Court 1. The appellant appeals to the Court of Queen s Bench of Alberta, the decision of Provincial Court Judge, sitting at, Name of Judge City/Town Alberta, who on, 20, made a Order. Date of Provincial Court Hearing Type of Order e.g. parenting Grounds on which the appeal is based 2. (specify) Nature of order or other relief sought 3. (specify) 4. In addition to the appeal of the decision of the Provincial Court Judge, the appellant will also request an order for the following other relief: (Specify, for example, a stay of execution of the order appealed pending the hearing of the appeal; permission to introduce new evidence, etc.) Evidence to be used in support of this appeal 5. The record of the evidence taken, including the transcript, and all other material in the possession of the Provincial Court that pertains to the matter being appealed. Notice of Appeal Family Law Act Revised January, 2011

8 Any further evidence that the Court may require or permit to be given, including: (specify) WARNING If you do not come to Court either in person or by your lawyer, the Court may give the appellant what the appellant wants in your absence. You will be bound by any order that the Court makes, or another order might be given or other proceedings taken which the appellant is entitled to without any further notice to you. If you want to state your side of this matter before the Court, you or your lawyer must attend in Court on the date and at the time shown above. If you intend to ask the Court for permission to introduce new evidence when the appeal is heard or considered, you must give reasonable notice of your intention to the appellant. Notice of Appeal Family Law Act Revised January, 2011