2019 NLCA 63, 2019 NLCA 63

Darin LeBlanc (applicant/appellant) v. Danyelle LeBlanc (respondent) (19/53) Indexed As: LeBlanc v. LeBlanc 2019 NLCA 63 5 C.A.N.L.R. 76 Court of Appeal of Newfoundland and Labrador Welsh J.A. September 25, 2019

Summary: Darin LeBlanc filed an application for an extension of time to appeal an order requiring him to pay Danyelle LeBlanc child and spousal support. Ms. LeBlanc applied, in the event that the application for an extension of time was allowed, to have the notice of appeal struck out. Held: Application for an extension of time allowed; application to strike the notice of appeal allowed. Welsh J.A.: In the absence of legal counsel, Mr. LeBlanc mistakenly believed that he had 30 days to appeal when, in fact, he had only ten days because the appeal is of an uncompleted matter. Mr.

LeBlanc had a bona fide intention to appeal within the appeal period and had a reasonable excuse for failing to comply with the rule. Accordingly, his application for an extension of time to file the notice of appeal was allowed (paragraphs 2-4). After the order under appeal was issued, the parties again appeared before the Supreme Court, Family Division and orders were made regarding Mr. LeBlanc’s obligation to pay child and spousal support. In the circumstances, multiple proceedings should be avoided.

Determinations regarding child and spousal support, including the possible variation of the support awards, should be completed in the Family Division prior to an appeal to this Court. Ms. LeBlanc’s application to have the notice of appeal stuck was allowed (paragraphs 5- 8). Cases cited: Law Society of Newfoundland v. Fahey , 2000 NFCA 19 Rules considered: Court of Appeal Rules , rules 8(2)(

b) and 35 Counsel: Appearing on his own behalf, the applicant/appellant; Keri-Lynn Power, for the respondent. The application was heard on September 24, 2019 before Welsh J.A. The following judgment was filed on September 25, 2019 by Welsh J.A. ______________________________________________________________

Welsh J.A.: [ 1 ] This matter involves two related applications. First, Darin LeBlanc applies for an extension of time to file a notice of appeal. In response, if the extension of time is granted, Danyelle LeBlanc applies to have the notice of appeal struck out. [ 2 ] Regarding the first application, the test to be applied in determining whether to grant an extension of time to file a notice of appeal has four prongs ( Law Society of Newfoundland v.

Fahey , 2000 NFCA 19 ): [ 3 ] … 1. whether the appellant had a bona fide intention to appeal within the appeal period; 2. whether there is a reasonable excuse for the failure to comply with the rule; 3. the potential merits of the appeal; and 4. the presence of any exceptional or special circumstances justifying or working against the fairness of an extension. [3] As applied in this case, there is a sufficient basis on which to conclude that the first two criteria are satisfied. The order under appeal is dated May 17, 2019. When the notice of appeal was filed on June 13, 2019, Mr.

LeBlanc believed he had thirty days within which to file the notice. However, in the absence of legal counsel, he failed to recognize that his appeal relates to an uncompleted matter which requires a notice to be filed within ten days (rule 8(2)(

b) of the Court of Appeal Rules ). In the circumstances, I am satisfied that Mr. LeBlanc had a bona fide intention to appeal within the appeal period and that he had a reasonable excuse for failing to comply with the rule. [ 4 ] Regarding the third and fourth criteria, there is limited information. However, in order to preserve Mr.

LeBlanc’s right to appeal the order of May 17, 2019, in which arrears of child and spousal support were ordered, with support to continue until July 31, 2019, I would allow an extension of time within which to file the notice of appeal. [ 5 ] However, for the following reasons, I would allow Ms. LeBlanc’s application to strike the notice of appeal pursuant to rule 35 of the Court of Appeal Rules . As noted above, this appeal relates to an uncompleted matter. Rule 35 provides:

(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. [ 6 ] In this case, a relevant consideration is the number of court appearances and orders made this year in the Supreme Court, Family Division and the state of affairs in June when the notice of appeal was filed. The Court was advised that the amounts of child and spousal support ordered on May 17, 2019 have already been paid to Ms. LeBlanc from monies held in trust from the sale of matrimonial property.

The Court was further advised that, to address support payable commencing August 1, 2019, the parties attended at case management in the Family Division in August, during which issues related to disclosure of assets by Mr. LeBlanc were considered. The parties returned to the Family Division in September 2019. The Court was advised that an order was made on September 20 th regarding Mr. LeBlanc’s obligation to pay child and spousal support commencing August 1 st . A copy of that order was not provided to this Court. Mr. LeBlanc indicated that he does not agree with the order. Further, it is unclear whether Mr.

LeBlanc intends to pursue an application for variation of child and spousal support. [ 7 ] In the circumstances of this case, convenience and the efficient use of judicial resources, and of the resources of the parties, lead to the conclusion that determinations regarding child and spousal support, including the possible variation of support orders, should be completed in the Family Division prior to an appeal to this Court. Multiple proceedings in this Court would thereby be avoided. [ 8 ] Accordingly, Mr.

LeBlanc’s application for an extension of time within which to file an appeal against the May 17, 2019 order is allowed. However, the notice of appeal is struck out pursuant to Ms. LeBlanc’s application under rule 35 of the Court of Appeal Rules . Based on her success in striking out the notice of appeal, Ms. LeBlanc shall have her costs under column 3 of the scale of costs in the Court of Appeal Rules . Application for an extension of time allowed; application to strike the notice of appeal allowed.