2019 NLCA 58, 2019 NLCA 58

A.M. (applicant/respondent) v. R.M. (respondent/appellant) (19/47) Indexed As: A.M. v. R.M. 2019 NLCA 58 5 C.A.N.L.R. 59 Court of Appeal of Newfoundland and Labrador Goodridge J.A. September 10, 2019

Summary: R.M. filed a notice of appeal of an order that transferred the hearing of an originating application to vary a parenting order from the judicial centre of St. John’s to another judicial centre. In the notice of appeal, R.M. alleged that the judge erred in granting the order to transfer the matter to another judicial centre without providing R.M. with an adequate opportunity to be heard.

A.M. applied to have the notice of appeal struck on the basis that hearing the appeal before the matter was completed would result in delay, inconvenience and inefficient use of judicial resources, or alternatively, that the appeal was without merit. Held: Application granted. Goodridge J.A.: The circumstances justified granting the application to strike out the notice of appeal pursuant to rule 35(1) (

b) of the Court of Appeal Rules . Hearing the appeal before the completion of the hearing of the original application would result in unreasonable delay that would not be in the best interests of the parties’ children. The appeal had remained inactive since R.M. filed a notice of appeal. There would be no major inconvenience to R.M. in having the matter transferred to another judicial centre, or in having the notice of appeal struck (paragraphs 3-8). Rules considered: Court of Appeal Rules , NLR 38/16, rule 35 Counsel: Desmond Jagger-Parsons, for the applicant; No appearance by the respondent.

The application was heard and judgment rendered orally on September 10, 2019 by Goodridge J.A. The following memorandum of disposition was filed on September 17, 2019 by Goodridge J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Goodridge J.A.: [ 1 ] This is an application by A.M. seeking to have a Notice of Appeal struck on the basis that hearing the appeal before the matter is completed would result in delay, inconvenience or inefficient use of judicial resources ( rule 35 of the Court of Appeal Rules ), or

alternatively, on the basis that the appeal is without merit ( rule 36 ). [ 2 ] The appeal relates to a decision of a Family Division judge, made by endorsement, transferring an Originating Application (seeking to vary a consent order dealing with the parenting of two children) from the Judicial Centre of St. John’s to the Judicial Centre of Gander. The Notice of Appeal alleges, inter alia , that the Family Division judge erred in law in granting the order without affording R.M. an adequate opportunity to be heard.

The two children, who are the focus of the Originating Application, currently reside with their mother, A.M., in Gander. The father, R.M., resides in St. John’s. [ 3 ] Rule 35, dealing with applications to strike appeals on uncompleted matters, provides as follows: Challenging an appeal in an uncompleted matter 35.

(1) Where an appeal is commenced in an uncompleted matter, a party may apply to have the notice of appeal struck on the basis that the appeal should not proceed until the matter has been completed because (

a) prejudice to a party may result if the appeal is heard before the matter is completed in the court appealed from; (

b) hearing the appeal before the matter is completed in the court appealed from would result in delay, inconvenience or an inefficient use of judicial resources; or (

c) there is good reason for delaying an appeal until the matter has been completed.

(2) Striking a notice of appeal under this rule does not prejudice the right of the appellant to include the same issues in an appeal when the matter has been completed in the court appealed from. [ 4 ] Hearing this appeal before completion of the hearing on the Originating Application will result in an unreasonable delay, and that would not serve the best interests of the children. The Originating Application is proceeding expeditiously in the Judicial Centre of Gander with the next appearance date set for September 24, 2019.

It is possible that a hearing date on the substantive issue will be set at that time. [ 5 ] The appeal has remained inactive since the Notice of Appeal was filed on May 17, 2019, excepting for an application by R.M.’s counsel to withdraw. Even if R.M. becomes proactive, it is likely to be a few more months before the appeal is perfected, and the parties are in position to request a hearing date for the appeal. [ 6 ] There is no major cost or inconvenience to R.M. in having the matter transferred to Gander since the courts usually permit litigants in family matters to participate by video link.

In addition, there is no major prejudice to R.M. since he may still raise this same issue in a fresh appeal after the Originating Application has been completed. [ 7 ] In the circumstance, the application is granted. Pursuant to rule 35(1)(

b) the Notice of Appeal is struck on the basis that the appeal should not proceed until the matter has been completed because the hearing of the appeal, before the matter is completed, would result in delay; the best interests of the children favours proceeding on the substantive issue without delay. [ 8 ] Costs were not sought in this matter. Under the circumstances, there is no order as to costs. Application granted.