In the appeal proceeding (after leave has been granted, if required), the party who started the appeal is called the “appellant”. Generally, the other party or parties are called “respondents”.

If served with a Notice of Appeal

If you’ve been served with a Notice of Appeal naming you as a respondent, consider seeking legal advice. You or your lawyer will need to prepare responding materials, serve them on the other parties, and file them with the Divisional Court with proof of service within the deadlines set by the Rules.

See the “Tips on completing forms in Divisional Court” for important information about how to fill out your forms and how to file your documents with the court.

You may decide to serve and file a Respondent’s Certificate Respecting Evidence (Form 61D) either confirming the appellant’s certificate (described in Part two: Starting an Appeal) or setting out any changes you want to make to it.

If you do not serve a Respondent’s Certificate Respecting Evidence, you will be considered to have confirmed the appellant’s certificate. This means that you are considered to agree that only the portions of evidence that they identified are needed for the appeal.

If you decide to prepare a Respondent’s Certificate Respecting Evidence, you must serve and file it with proof of service within 15 days after the appellant served their Certificate on you. For details about service, see “Serving documents in Divisional Court appeals”.

Cross-appeals

Sometimes, the appellant is not the only party who is not completely satisfied with the lower court or tribunal’s order. In some cases, the respondent may also think that something about the result was wrong. For this reason, the respondent may want to ask the Divisional Court to:

  • set aside or vary the order that the appellant is appealing
  • grant other relief or a different disposition (outcome) than the order being appealed, if the Divisional Court allows the appellant’s appeal

In these situations, the respondent can choose to start a “cross-appeal” by serving a Notice of Cross-Appeal (Form 61E) no more than 15 days after the appellant served their Notice of Appeal on the respondent. A respondent who starts a cross-appeal can be called the “cross-appellant” for the purposes of the cross-appeal.

The respondent/cross-appellant must serve the Notice of Cross-Appeal on all parties whose interests may be affected by the cross-appeal and on any person entitled by statute to be heard on the appeal. The respondent who is cross-appealing must file the Notice of Cross-Appeal with proof of service no more than 10 days after service. There is a fee to file a Notice of Cross-Appeal.

The Notice of Cross-Appeal contains:

  • the relief sought
  • the grounds of the cross-appeal

For a brief description of the meaning of these terms, refer to the “Glossary of important terms”.

It is important to think carefully about the relief sought and the grounds of the cross-appeal. You will not be able to raise any new grounds of cross-appeal in your arguments at the hearing or ask the court for different relief, except with leave (permission) of the court. If, after you serve and file your Notice of Cross-Appeal, you realize that you want to make a change, you can amend it by serving and filing a Supplementary Notice of Cross-Appeal (Form 61F) before the appeal has been perfected. If you want to make a change after the appeal has been perfected, you will need to seek leave of the court. 

Responding materials

You must serve and file a Respondent’s Factum. In some cases, you will also need to serve and file a Respondent’s Compendium. These are summarized below, but it is a good idea to read Rule 61.12 of the Rules for more detail. You and the appellant can also agree to file a Book of Authorities together (see “Part four: Perfecting an appeal”). If you and the appellant do not agree, you can instead file a separate Book of Authorities, as described below. There is no fee to file any of these materials.

Respondent’s Factum

The Respondent’s Factum is a bound document containing a short summary of the facts, the law and the arguments you are making in response to the arguments the appellant makes in their Factum. There are limits on how long the Respondent’s Factum can be, as described below. When you file your Respondent’s Factum with the court, you will need to provide an electronic version, even if you are filing in hard copy. If your appeal is before a panel of three judges and you are filing documents in hard copy, you will need to provide three copies.

The Respondent’s Factum must be bound front and back in green covers if you are providing it in hard copy. The Respondent’s Factum must be signed at the end. The Respondent's Factum must consist of the following parts (note that for Parts I through V, you must number each paragraph):

  1. Part I, containing a short overview statement describing what the case is about and the issues.
  2. Part II, containing a statement of:
    1. the facts in the appellant’s summary of relevant facts that the respondent accepts as correct.
    2. the facts in the appellant’s summary of relevant facts that the respondent disagrees with.
    3. a short summary of any additional facts you are going to rely on. Include references to the transcripts of evidence and the exhibits as necessary.
  3. Part III, containing your position on each issue raised by the appellant in their factum, immediately followed by a short argument for each issue. Include references to the law and legal authorities relating to that issue (for example, other court decisions that you are including in your Book of Authorities).
  4. Part IV, containing a statement of any additional issues you want to raise, followed by a short argument for each issue. Include references to the law and legal authorities relating to each issue.
  5. Part V, containing a statement of the order you are asking the Divisional Court to make, including any order for costs.
  6. A certificate containing the following items::
    1. A statement confirming that an order under subrule 61.09(2) (original record and exhibits) has been obtained or is not required.
    2. How much time (in hours or parts of an hour) you think you will need for your oral argument. Do not include the time needed for your reply to the appellant’s response to the issues you raise.
    3. A statement confirming that Parts I to V of the Respondent’s Factum are not more than 9,200 words and also not more than 40 pages. This word limit applies to all words used in Parts I to V, including words used in citations, footnotes, headings or charts, diagrams or other visual aids.
      Note: If you received permission from a judge to file a factum that is longer than these limits, you must attach a copy of the judge’s order giving you permission. You must also state in your certificate that you have respected the limits in the order (instead of the limit in the rules).
    4. The number of words contained in Parts I to V.
    5. A statement confirming that you (or the person signing the certificate if that isn’t you) are satisfied that every authority (legal source) that you refer to in your factum is authentic. 
      Note: You can normally assume that an authority is authentic if it is published on a government website, by a government printer, on the Canadian Legal Information Institute website (CanLII), on a court’s website or by a commercial publisher of court decisions. If you take an authority from another type of publisher or website, you need to check to make sure that it is authentic.
  7. Schedule A, containing a list of the authorities (legal sources, such as other court decisions, etc.) referred to.
  8. Schedule B, containing the text of all relevant portions of statutes, regulations and by-laws that are not included in Schedule B of the Appellant’s Factum.

If you have delivered a Notice of Cross-Appeal, then you are considered the ‘appellant by cross-appeal’ or ‘cross-appellant’. In that situation, in addition to your Respondent’s Factum, you must prepare a factum as the cross-appellant and either:

  • deliver it with your Respondent’s Factum, or
  • incorporate it into your Respondent’s Factum

Book of Authorities

It is of great assistance to the Divisional Court for the parties to file bound volumes containing copies of the cases or other legal materials (such as legislation and academic legal articles) they intend to refer to in their arguments for the appeal. These legal materials are known as “authorities." 

The parties should work together to make one Book of Authorities if possible. If the parties can’t agree on one combined version, then they can file separate Books of Authorities. If you need to file a separate Respondent’s Book of Authorities and you are filing it in hard copy, it must be bound front and back in green covers. 

The Book of Authorities should include a tab for each source (case, statute, etc.) and should include an index of the cases and indicate the tab where the case is reproduced. The tabs can be organized by numbers (1, 2, 3, etc.) or by letters (A, B, C, etc.). You (or the other party, if you are using a joint Book of Authorities) should highlight, underline or put a line in the margin to show the parts of the cases that are relevant to the arguments.

The Book of Authorities should include only the cases that you (or the other party if it is a joint book) have referred to in the Factum(s). The Book of Authorities should be filed, if possible, with the Appellant’s Factum. If this is not possible, then it should be filed no later than the Monday of the week before the hearing of the appeal.

If the appeal is before a panel of three judges and you are filing the Book of Authorities in hard copy, you should file three copies of your Book of Authorities.

The Divisional Court maintains a list of Often-Cited Cases in Divisional Court. If you are referring to a case in this list, you do not need to include the full case in your Book of Authorities. However, you should still include the relevant extracts in your Factum or your Book of Authorities. The list of Often-Cited Cases in Divisional Court is provided for convenience. It should not be treated as an indication of the most important cases on any particular topic.

Respondent’s Compendium

The Respondent’s Compendium is a bound volume(s) that contains documents you have referred to in your Respondent’s Factum that are not already included in the appellant’s Appeal Book and Compendium. If all of the documents that you want to refer to are in the appellant’s Appeal Book and Compendium, you do not have to file a Respondent’s Compendium.

If you decide that you need to file a Respondent’s Compendium and you are filing it in hard copy, it must be bound front and back in green coloured covers. If you file a Respondent’s Compendium in hard copy and your appeal will be heard by a panel of three judges, you will need to file three copies.

The pages of the Respondent’s Compendium must be consecutively numbered, with numbered tabs arranged in the following order:

  1. Table of contents with a description of each document that says what it is and its date.
  2. Copy of any excerpts from a transcript of evidence that are referred to in the Respondent’s Factum.
  3. Copy of any exhibits that are referred to in the Respondent’s Factum.
  4. Copy of any other documents relevant to the hearing of the appeal that are referred to in the Respondent’s Factum.

Remember: Only put documents that are not in the appellant’s Appeal Book and Compendium in your Respondent’s Compendium.

When to file responding materials

Once the appellant has served the Appeal Book and Compendium, the Exhibit Book, the Appellant’s Factum and the transcript (if any), each respondent has 60 days from the date of service to serve the appellant and any other respondents with responding materials and file the documents with the Divisional Court office with proof of service. The responding materials must be served and filed with proof of service within the 60-day limit.

If the appellant and the respondent are filing separate Books of Authorities, the same deadline applies to both of them. If possible, file your Respondent’s Book of Authorities with your Factum. If this is not possible, then it should be filed no later than the Monday of the week before the hearing of the appeal.

Modified timelines for appeals of orders made under the Child, Youth and Family Services Act, 2017

For an appeal of an order made under the Child, Youth and Family Services Act, 2017, there is a modified timeline for the respondent to serve and file responding material, as set out in Rule 38 of the Family Law Rules. Instead of 60 days, the respondent has 30 days from the date they were served with the appellant’s materials to serve the appellant and any other respondents with responding materials and file the documents with the Divisional Court with proof of service.

If appellant fails to perfect on time

If the appellant fails to perfect the appeal on time, a respondent can bring a motion to the registrar of the Divisional Court to dismiss the appeal for delay under any of the following circumstances:

  1. If a transcript is not required and the appellant has failed to perfect within 30 days of the filing of the Notice of Appeal.
  2. If a transcript is required and the appellant has not filed proof that the transcript has been ordered within 30 days of the filing of the Notice of Appeal.
  3. If a transcript is required and the appellant has failed to perfect within 60 days of receiving notice that the transcript is ready (or within 30 days, in the case of a Child, Youth and Family Services Act, 2017 appeal, as set out in Rule 38 of the Family Law Rules).

Before bringing a motion to have the appeal dismissed, the respondent must serve a written notice to the appellant at least 10 days in advance.

If you have started a cross-appeal, be aware that there are also dismissal timelines for cross-appeals. See Rule 61.13(4) and Rule 61.13(5) for details.