Family litigation is not always a swift process and it is not unusual for the Court to make temporary orders pending the final outcome at trial. Temporary orders are called interim orders and they can deal with a variety of matters including parenting arrangements. Often, in BC, interim orders are made by masters of the Court – ie junior judges.
A master’s interim order is subject to review by a higher judicial authority, like a Supreme Court judge. The recent case of P.T. v. K.T. 2015 BCSC 2021 teaches family lawyers how to stickhandle appeals of master’s interim orders on parenting issues.
The usual test on appeal of a master’s interim order is whether the decision is clearly wrong (see Abermin Corporation v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188). If so, the master’s decision is set aside and the appellate Court may substitute its own decision. Thus, the standard is “clearly wrong” and the remedy is a substituted decision.
But where the master’s decision deals with parenting arrangements that may directly impact upon the fundamental issue in dispute, the standard and remedy are different. On appeal, the appellate Court will embark upon a case by case analysis to determine whether the interim decision is likely to have a direct bearing on a fundamental trial issue; this is the standard of review. If the standard is met, the remedy is a rehearing. If the standard is not met, the appellate Court’s decision may be implemented if the interim decision is clearly wrong.
What is not discussed in P.T. v. K.T. is the cost of appealing an interim order. The astronomical cost of litigation is a concern in almost every case, so P.T. v. K.T. is, for most British Columbians, purely academic.
But we can still learn from the case. Effective advocacy involves cost consciousness. If a master’s order is likely to have a fundamental impact on trial issues, counsel should beg for a without prejudice order so as to circumvent the appeal process. This does not solve the problem of creating a new status quo for the children but, assuming appeals are almost always unaffordable, it is better than nothing.
Jeffrey L. Hartman