Ministry of the Attorney General
What is Divisional Court?
Divisional Court
Divisional Court
ISBN 978-1-4868-4551-4
© Queen's Printer for Ontario, March 2021
The information contained in this guide is simply an overview of the relevant legislation and rules of procedure. It is not intended to be a substitute for the Rules of Civil Procedure, which should be examined for specific information. Nothing contained, expressed or implied in this guide is intended as, or should be taken or understood as, legal advice. If you have any legal questions, you should see a lawyer.
Special thanks to the Divisional Court, whose Appeal Information Package provided valuable information for this series of Guides.
Guides are available in English and French at www.ontario.ca/attorneygeneral. Visit this site for information about accessible formats.
Les guides sont affichées en anglais et en français sur le site www.ontario.ca/procureurgeneral. Visitez ce site pour des renseignements sur des formats accessibles.
The Ministry of the Attorney General has a series of guides to Divisional Court procedures which are available at court offices and the Ministry of the Attorney General website at www.ontario.ca/attorneygeneral:
The guide entitled “What is Divisional Court?” includes a helpful overview of Divisional Court services, as well as a glossary of legal terms you may find helpful when reading the other guides.
Content
of forms under the Rules of Civil Procedure is available at the
following website:
www.ontariocourtforms.on.ca. Please note the
forms must be formatted in accordance with the Rules of Civil Procedure.
You can find tips on completing forms at the end of this guide.
The staff behind the counter at any Divisional Court office are helpful. They will answer your questions about Divisional Court procedures, but keep in mind they cannot give legal advice and they cannot fill out your forms for you.
For more detailed information, you should refer to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It is a regulation made under the authority of the Courts of Justice Act. To view the Rules on-line, go to www.ontario.ca/laws and follow these steps:
The Divisional Court is a branch of the Superior Court of Justice of Ontario. It is an appeal court, not a trial court. It hears appeals and applications for judicial review. Please note this series of guides addresses appeals in the Divisional Court. It does not address applications for judicial review.
We encourage you to read this guide if you are thinking of bringing an appeal to the Divisional Court, or if you are already involved in an appeal. It answers questions about the court and provides general information about Divisional Court appeals. For more detailed information about appeal procedures, refer to the list of guides at the front of this guide.
It is your responsibility to ensure the Divisional Court has jurisdiction over your appeal. If you are unsure if your appeal should go to the Divisional Court, you should seek legal advice.
The Divisional Court may hear the following types of appeals:
Under sections 19(1) and 19(1.2) of the Courts of Justice Act, an appeal goes to the Divisional Court from a “final order” of a judge of the Superior Court of Justice:
Interlocutory orders are orders that are not final. Under section 19(1) of the Courts of Justice Act, an appeal from an interlocutory order of a judge of the Superior Court of Justice goes to the Divisional Court only after the party who wants to appeal gets "leave" (permission) of the court to do so. A motion must be brought asking the court for permission to bring the appeal. Refer to Rule 62.02 of the Rules of Civil Procedure. The Guide to Appeals in Divisional Court provides information on how to bring a motion for leave to appeal.
Under section 19(1) of the Courts of Justice Act, an appeal from a final order of a master or case management master goes to the Divisional Court.
Under section 19(2) of the Courts of Justice Act, an appeal to the Superior Court of Justice and an appeal to the Divisional Court within the same proceeding may be combined and heard by the Divisional Court. If an appeal has been started in the Superior Court of Justice, a motion may be brought to transfer it to the Divisional Court for the purpose of a combined appeal.
According to O. Reg. 343/19 Small Claims Court Jurisdiction and Appeal Limit under the Courts of Justice Act, an appeal goes to the Divisional Court from a final order of the Small Claims Court in an action:
The appeals described above are provided for in the Courts of Justice Act. However, other Ontario legislation also provides for appeals to the Divisional Court from the decisions of various tribunals and statutory decision makers. For example:
Many statutes relating to professional disciplinary matters also provide for appeals to the Divisional Court. For example:
It is necessary to read the specific legislation before deciding whether an appeal to the Divisional Court is the correct appeal route.
The Family Court is a branch of the Superior Court of Justice and is located in various centres across the province. A list of the Family Court locations can be found on the Ministry of the Attorney General website at https://www.attorneygeneral.jus.gov.on.ca/english/family/famcourts.php.
Appeals of interlocutory orders of the Family Court go to the Divisional Court. The person seeking to appeal the order must first bring a motion asking the court for leave to appeal the interlocutory order. This is the rule described in section 2, Appeals from Interlocutory Orders, above. Appeals of final orders of the Family Court that are made under provincial legislation only go to the Divisional Court, without the need to bring a motion for leave. Where the order was made under federal legislation (e.g. the Divorce Act (Canada)) or where the order involves interjurisdictional decision-making responsibility, parenting time or contact, including orders made in accordance with the Convention on the Civil Aspects of International Child Abduction, the appeal goes to the Court of Appeal.
In general, the Divisional Court sits in panels of three judges of the Superior Court of Justice. However, in some circumstances, Divisional Court hearings may be held before a single judge. These circumstances can include:
Leave to appeal is the permission of the court to bring an appeal. See the Guide to Appeals in Divisional Court for more information on seeking leave to appeal, including when you need leave before you can bring an appeal.
You must pay a fee to file a Notice of Appeal and for most steps in a proceeding, such as filing a motion or filing a cross appeal. The number of steps in an appeal varies from case to case.
A party—usually the successful party—can ask the court to order the other party to pay his or her costs, including court fees.
A fee waiver process has been introduced for persons who may be denied access to justice because of their financial circumstances. Refer to the Guide to Fees in Divisional Court Appeals for more information about fees and fee waiver.
There are time limits for how long you have to bring an appeal. If you are uncertain about what period of time applies in your case, you should consult a lawyer.
Generally, an appeal of a final order is started by serving the required documents within 30 days after the order that you are appealing was made, unless a statute or rule provides otherwise: see Rule 61.04(1) of the Rules of Civil Procedure. Refer to the Guide to Appeals in Divisional Court for more information about starting an appeal.
The Divisional Court, a branch of the Superior Court of Justice, sits in eight regional centres throughout the province. They are listed in the chart below, which also indicates some of the locations served by each regional centre.
* Note: This list is not intended to be exhaustive.
If the final order you intend to appeal was made by a court or tribunal in a location other than those shown in the chart above, please contact the Superior Court of Justice office nearest you to find out where you should file your documents. Court addresses and phone numbers can be viewed online at www.attorneygeneral.jus.gov.on.ca.
Generally, Divisional Court appeals are filed in the region where the hearing or other process took place. This may not be the case if the parties agree otherwise. See section 20(1) of the Courts of Justice Act.
The court office where you file your appeal documents varies by region according to whether your appeal will take place before a single judge or before a panel of judges. If your appeal will be heard by a single judge, you should check with your local Superior Court of Justice court office to find out where to file your appeal documents. If your appeal will be heard by a panel of judges, you should check with the regional centre court offices listed above to find out where to file your appeal documents.
Where your appeal will be heard varies by region according to whether your appeal will take place before a single judge or before a panel of judges.
Appeals before a single judge of the Divisional Court are heard in the regions at the direction of each Regional Senior Judge as follows:
Appeals before a panel are heard at the regional centres listed in the chart above.
There are a few legal words you will need to understand. At the end of this guide you will find a short glossary which will explain some important terms.
Depending on the nature of your case, any number of statutes or regulations may be important. Ontario’s statutes and regulations are available online at www.ontario.ca/laws.
The Rules of Civil Procedure are contained in a regulation under the Courts of Justice Act. The Rules govern procedure, including required forms, in the Divisional Court.
The content of forms under the Rules of Civil Procedure is available at the following website:
www.ontariocourtforms.on.ca. Please note the forms must be formatted in accordance with the Rules of Civil Procedure. You can find tips on completing forms at the end of this guide.
For appeals of orders made in family law cases, some of the timelines set out in the Rules of Civil Procedure are modified by the Family Law Rules, the special rules of procedure for family law cases. The Family Law Rules are set out in a regulation made under the authority of the Courts of Justice Act.
In Divisional Court, you may represent yourself or be represented by a lawyer. It is recommended that you hire a lawyer or, at a minimum, seek legal advice.
If you wish to consult an Ontario lawyer, you may contact the Law Society Referral Service operated by the Law Society of Ontario. The Law Society Referral Service can provide you with the name of a lawyer in your area, who will provide a free initial consultation of up to 30 minutes to help determine your rights and options. If you would like to be referred to a lawyer, you may submit a request to the Law Society Referral Service by completing the online request form at www.lawsocietyreferralservice.ca. A crisis line is available Monday to Friday, 9:00 am to 5:00 pm. The crisis line is intended for people who are unable to use the online service, such as those in custody, in a shelter, or in a remote community without access to the internet. The phone number for the crisis line is 416-947-5255 (toll free 1-855-947-5255). Information about how to be referred to a lawyer through the Law Society’s Referral Service is available at www.lsrs.info. You may also use the Law Society’s Lawyer and Paralegal Directory, which may be viewed at www.lawyerandparalegal.directory.
If you are not in a financial position to retain the services of a lawyer, you may wish to contact the Legal Aid Ontario office closest to you to see if you qualify for legal aid. For more information you may visit Legal Aid Ontario's website at: http://www.legalaid.on.ca.
An interpreter translates communication from one language to another.
For information about the rights of French-speaking individuals in the Ontario justice system, refer to the brochure Justice in Both Languages, available in French and English on the Ministry of the Attorney General website at: www.attorneygeneral.jus.gov.on.ca.
The court office will pay for "in-court" interpretation in any language other than French only if you apply for and are given a fee waiver certificate. For more information about fee waiver, refer to the Guide to Fees in Divisional Court Appeals.
Translation of written documents from English to any other language and vice versa must be arranged for, and paid by, the party who requires the service.
Section 7 of the Ontarians with Disabilities Act provides:
“Within a reasonable time after receiving a request by or on behalf of a person with disabilities, the Government of Ontario shall make an Ontario Government publication available in a format that is accessible to the person, unless it is not technically feasible to do so.”
If you want to request a publication in a different format, please contact Service Ontario Publications at:
Service Ontario
Publications
50 Grosvenor Street
Toronto, ON
M7A 1N8
Toll Free: 1-800-668-9938
TTY Toll Free: 1-800-268-7095
Here are some key definitions of words you will need to understand if you are making or responding to an appeal in Divisional Court.
| Affidavit |
A written statement or declaration of facts that are sworn or affirmed to be true. |
| Appeal Book and Compendium |
A bound volume(s) that is a collection of the documents relating to your appeal. |
| Appellant |
A person who brings an appeal. The word “appellant” may refer to either party from the lower proceeding (e.g. plaintiff or defendant, applicant or respondent), depending on who appealed the decision. |
| Book of Authorities |
A bound volume(s) of any legal cases or other authorities (e.g. legislation) which are relevant to the appeal. The passages to which the party intends to refer must be marked in some manner by either highlighting, underlining or using sidebars. |
| Certificate of Perfection |
A document certifying that the Appeal Book and Compendium, the Exhibit Book, the transcript (if any) and the Appellant’s Factum have been served and filed. It includes the name, address and telephone number of the appellant(s) and respondent(s) or of his/her lawyer. |
| Certificate of Stay |
A document certifying that an order of a court or tribunal has been stayed (i.e. postponed) by an appeal to the Divisional Court. |
| Deponent |
A person making a statement under oath. |
| Exhibit Book |
A bound volume(s) containing copies of exhibits from the original hearing necessary for the consideration of an appeal. |
| Grounds |
The reasons or basis upon which the appellant claims the appeal should be allowed. |
| Factum |
A bound document containing a concise summary of the facts, the law and the arguments made in support of, or in response to, an appeal. |
| Interlocutory Order |
An order that is not final. An order is interlocutory if it does not finally dispose of the rights of the parties. In family law matters, a temporary order is an interlocutory order. |
| Judgment |
A decision made by a court or tribunal resolving a dispute. |
| Jurisdiction |
The power of the court to hear a particular matter. The Courts of Justice Act provides for the appellate jurisdiction of the Divisional Court. However, provisions of other statutes governing particular litigation may modify the general provisions of the Courts of Justice Act. |
| Motion |
A motion is a court procedure that is used to obtain certain kinds of orders from a judge. Examples include:
|
| Order |
A decision made by a court or tribunal. An order made by a court or tribunal resolving a dispute can also be called a judgment. |
| Party |
A litigant, usually an appellant or a respondent. |
| Perfecting an Appeal |
An appeal is perfected when all the documents necessary for the hearing of the appeal have been served and filed with the court within the time periods set out in the Rules. Once the appeal is perfected, the Divisional Court can list the appeal for hearing. |
| Person |
A human being or an entity (such as a corporation) that is recognized by law as having the rights and duties of a human being. |
| Relief Sought |
What you are asking the court to do. |
| Respondent |
A person who responds to an appeal. In an appeal, the word “respondent” may refer to either party from the lower proceeding (e.g. plaintiff or defendant, applicant or respondent), depending on who appealed the decision. |
| Service/Serving |
Getting a document to another person in the way the rules of court require or allow. |
| Solicitor |
In Ontario, a solicitor is a lawyer and vice versa. |
When calculating timelines in the Rules of Civil Procedure, count the days by excluding the first day and including the last day of the period; where a period of less than seven days is prescribed, holidays (including Saturdays and Sundays) shall not be counted; if the last day of the period of time falls on a holiday, the period ends on the next day that is not a holiday.
Holidays include:
NOTE: If New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday. If Christmas Day falls on a Saturday or Sunday the following Monday and Tuesday are holidays, and if Christmas Day falls on a Friday, the following Monday is a holiday.
These individuals are authorized to commission oaths.
You should come to the commissioner with identification and the unsigned document. The commissioner will ask you to swear or affirm that the information in the affidavit is true and will ask you to sign the affidavit. The affidavit must be signed in front of the commissioner, since they will certify that it was sworn or affirmed in their presence.
NOTE: It is a criminal offence to swear or affirm an affidavit you know is false.