Can You Appeal If You Haven’t Followed Court Orders?

In the emotionally charged and often complex world of litigation, it’s not uncommon for parties to feel that a trial decision was unjust or failed to consider important facts. But what happens when the person seeking to appeal the decision hasn’t complied with court orders leading up to the trial?

The answer may surprise many:

The court can quash an appeal due to non-compliance with prior court orders.

The Legal Foundation: Disobedience Can End Your Appeal Before It Begins

Under section 134(3) of Ontario’s Courts of Justice Act, the Court of Appeal has the authority to quash or dismiss an appeal where a party has failed to comply with lower court orders.

This principle was confirmed in several key cases, including:

Cosentino v. Cosentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8 - This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders

Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346 - Juriansz J.A. recognizes the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach. However, my colleague says that the rule is subject to an exception where, as in this case, "the appellant seeks to attack the jurisdiction of the court below to make the contempt order and impose a sentence against him"

Nowacki v. Nowacki, 2015 CanLii 41092 (Ont. C.A.) - The decisions of foreign courts do not sanction a refusal to comply with orders made validly by Canadian courts: see Hughes v. Hughes, 2014 BCCA 196, 376 D.L.R. (4th) 197, at paras. 104-105

Martyn v. Martyn, 2010 ONCA 730 - When the appellant failed to comply with any of the provisions of a previous order and stopped making child support payments, the appeal was stayed until the appellant complied

What Factors Will the Court Consider?

The court won’t automatically quash every appeal where there’s been non-compliance, but it will carefully assess whether an appeal should be heard in the face of disobedience. The relevant factors include:

1. The wilfulness of the breach – Was the party deliberately ignoring the order?

2. The seriousness of the breach – How much was left unpaid or unfulfilled?

3. Any explanation for the breach – Were there legitimate reasons, like financial hardship or misunderstanding?

4. Efforts made to correct the breach – Has the party tried to catch up or comply in good faith?

The Court has emphasized that not allowing an appeal is a discretionary decision and must be guided by fairness and the interests of justice. Still, respect for court process and orders is paramount.

Why This Matters: The Appeal Court Is Not a Fresh Start

Appealing a judgment is not a do-over. It’s a request for a higher court to review legal or factual errors. But courts will not reward parties who have shown disregard for prior orders—especially where non-compliance undermines the very fairness of the trial process.

In Dickie v. Dickie, the Ontario Court of Appeal (per Laskin J.A., dissenting) took the position that litigants who “thumb their noses” at the system should not benefit from its protections. While the Supreme Court of Canada ultimately overturned that decision on procedural grounds, the underlying principle remains influential: equity demands clean hands.

Bottom Line: Compliance Matters

If you’re considering an appeal but have ignored or failed to comply with prior court orders—whether related to support, disclosure, or procedural compliance—your appeal may be at risk of being quashed before it's ever heard.

To protect your right to appeal:

1. Comply with all orders fully and on time

2. Communicate proactively if compliance becomes difficult

3. Take steps to cure any non-compliance before filing the appeal

4. Seek legal advice early to avoid procedural pitfalls

At Judd Law, we help clients assess the viability of their appeals and guide them through the strategic, procedural, and substantive issues that can make or break their case. Appeals aren’t just about being right—they’re about doing things right.

This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.