Time and again I have discussed the difference between an appeal and a motion to change. This very issue arose recently in the case of Concepcion v. Richards, 2016 ONSC 6984.
In this case, the appellant appealed an order directing the sale of the matrimonial home and requiring him to pay child and spousal support, claiming the original judge failed to consider a number of facts.
The Court found that the appellant essentially sought reconsideration of the order, which was properly decided, and thus an appeal was not available. The alternate, and correct, procedural route in these circumstances was to bring a motion to change based on a material change in circumstances. If no such change is available, then the motion ought to not be brought.
Very often in family law litigants get stuck with orders that they do not like and that do not work for them. This, unfortunately, is a harsh reality of family litigation and a great reason to negotiate or mediate and stay out of court. There is, of course, a time and place for court, but parties to a family law dispute need to think very carefully about the risks versus rewards.
Jeffrey L. Hartman