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It is important to commence legal actions and initiate an appeal in a timely manner in within the applicable deadlines. If a party intends to appeal but misses a deadline, a court may grant an extension of time. However, judges will not automatically grant extensions of time; instead, they will consider the “justice of the case” to determine whether an extension is warranted. Each case will depend on the specific circumstances, and the party seeking the extension must meet the legal test and provide reasonable explanations for the delay.
Appellant Looks to Reinstate his Appeal
In Safieh v. Hamza, the appellant sought to appeal the trial judge’s orders regarding decision-making responsibility, parenting time and child support, as well as a costs award of $100,000 in favour of the respondent. However, the appellant’s appeal was administratively dismissed due to delay in accordance with Rule 61.13(3)(a) of the Rules of Civil Procedure after he missed a deadline that had been agreed to by the parties. The appellant now sought the court’s reinstatement of the appeal and an extension of time. The respondent opposed the motion but, in the alternative, asked the court to address the risk that the appellant might use the delay to dissipate assets needed to satisfy the orders under appeal.
The judge first considered the appellant’s request to set aside the order dismissing his appeal pursuant to Rule 61.16(5). Sickinger v. Sickinger set out the considerations that must be weighed in such a request. Firstly, the appeal’s merits are a primary consideration. But other considerations include:
- The explanation for not perfecting the appeal within the stipulated timelines;
- The length of and explanation for the delay; and
- Any prejudice to the responding party.
However, Justice Paciocco recognized that when weighing these considerations, the analysis into the merits of the appeal “cannot be exacting at this stage in the litigation given the incomplete record available and the consequence of denying the motion, which is the loss of the right to even argue the appeal”.
Court Weighs the Merits of the Appeal
The judge explained that the considerations for setting aside an administrative dismissal are similar to the considerations that would arise on the appellant’s motion for an extension of time to be able to perfect his appeal under Rule 3.02(1). However, the judge acknowledged that the standard for setting aside an administrative dismissal is “more demanding” as those orders can be avoided by seeking an extension of time.
In Guillaume v. Ontario (Animal Care Review Board), the court examined the relevant considerations and identified whether the moving party had formed an intention to appeal within the required deadline and maintained an intention as a relevant factor. That case also highlighted that justice is an overarching consideration in such cases, which involves weighing the merits of the appeal.
Additionally, courts cannot ignore the potential impact on children. In D.G. v. A.F., the court concluded that when orders affect the interests of children, “an important if not overarching consideration is the effect of the orders on the best interests of the children”.
Given all the considerations, the judge in Safieh found that, subject to certain conditions, the justice of the case warranted granting the appellant’s order and that doing so was consistent with the children’s best interests. Looking first to the merits of the appeal, Justice Paciocco recognized that the grounds of appeal raised by the appellant were challenging, as they involved findings of fact made by the trial judge regarding parenting rights and decision-making, and any reviewing court had to give substantial deference to those findings. However, the appellant also challenged the evidentiary foundation for the family violence findings made by the trial judge. In addition, he claimed that the trial judge misapprehended the evidence regarding decision-making authority by failing to consider the parties’ experience with the dispute resolution mechanism in place. The judge acknowledged that an appeal court could find that misapprehension “materially influenced the outcome on decision-making responsibility”. Consequently, Justice Paciocco felt the appeal met the low threshold of having some merit.
Appellant Must Explain the Delay
Moving to the other factors, it was clear that the appellant intended to appeal. There was also an explanation for why he did not perfect the appeal within the required time. He explained that he initially tried to proceed with the appeal without legal representation but realized he would be unable to cope without legal assistance due to the appeal’s complexity. The judge accepted that the “unexpected challenge in preparing the appeal” and the need for the appellant’s new legal counsel to become familiar with the file explained the delay. Additionally, the delay was approximately two months and was not overly long.
The appellant suggested that there was no risk of prejudice to the respondent if the administrative dismissal was set aside and an extension of time granted. However, the judge disagreed with that characterization. Nevertheless, the judge felt the risk of prejudice could be addressed by imposing certain conditions. As long as those conditions were complied with, the appellant did meet his onus of demonstrating that it was in the interests of justice to set aside the dismissal, reinstate his appeal, and grant an extension of time. Yet the respondent noted that judges have discretion to impose terms when granting an extension of time. Rule 3.02(1) permits courts to grant extensions of time “on such terms as are just”.
In this instance, the judge felt that there was a basis to the respondent’s concern that during the period of delay pending the appeal, the appellant could try to protect his assets from the orders under appeal. The respondent’s evidence showed that, during an earlier extension of time granted to the appellant, he sold his home, which was his largest asset, and that he may have misled the children when he claimed to have purchased another home.
Concerns With Party’s Disclosure and Lack of Transparency
In addition, there were transparency concerns. The appellant had refused to provide disclosure resulting from the home sale and also refused to attend an examination where the status of his assets could have been explored. There was also some indication that his current wife and stepchild may have left the country, which raised concern that he may attempt to dispose of assets before leaving. The judge concluded that if the appeal was to be reinstated, conditions needed to be put in place to address those risks.
The decision in Mauldin v. Cassels Brock & Blackwell LLP served as a model for the types of conditions that should be imposed. In that case, the party was required to pay an amount reflecting his interest in the matrimonial home, which struck a balance between the right to an appeal and “the respondents’ interest in ensuring that they may enforce the motion judge’s court order” if the appeal was unsuccessful. Likewise, in Safieh, the appellant was to post an irrevocable letter of credit with the court and provide a written undertaking, in addition to providing the required financial disclosure to the respondent.
Contact Johnson Miller Family Lawyers for Dynamic Representation in Family Disputes in Windsor-Essex
For parties involved in family law disputes, court and appeal deadlines are critical. Failing to comply with procedural rules can jeopardize the right to challenge an adverse decision. At the same time, responding parties must understand their options to protect their interests when an opponent seeks to revive an appeal after missing a deadline.
The family and divorce lawyers at Johnson Miller Family Lawyers advise clients on a full range of family law disputes, including parenting issues, property division, and child and spousal support. To discuss your rights and legal options in a family or divorce-related matter, please contact us online or call 519-973-1500 to book a confidential consultation.
