2016 NLCA 59, 2016 NLCA 59

S.M. (intended appellant) v. J.B. (intended respondent) (16/99) Indexed As: S.M. v. J.B. 2016 NLCA 59 1 C.A.N.L.R. 209 Court of Appeal of Newfoundland and Labrador Harrington J.A. October 26, 2016

Summary: Application for leave to appeal an interlocutory order of a Supreme Court Family Division judge regarding which school the parties’ child will attend. Held: Application for leave to appeal granted. Harrington J.A.: The matter was heard after the coming into force of the new Court of Appeal Rules, NLR 38/16. According to rule 60, the new rules apply to all matters ongoing at the time of their coming into force.

Under the new rules, the requirement for leave to appeal for interlocutory matters was removed, subject to the right of the respondent to file an application pursuant to rule 35 asking for the appeal to be heard only once the matter is completed. In addition, rule 9 provides that the Court will prioritize appeals concerning children. Because the respondent did not file an application pursuant to rule 35, leave was not required and the appeal should proceed without delay. Counsel: Randell L. Wellon, for the intended appellant; Appearing on his own behalf, the intended respondent.

The following Memorandum of Disposition was filed on October 26, 2016 by Harrington J.A. ___________________________________________________________ Harrington J.A.: [ 1 ] This is an application for leave to appeal a decision of a Trial Division judge regarding which school the parties’ child will attend. Under rule 57 of the Rules of the Supreme Court, 1986 , leave was required because the appeal related to an interlocutory order. [ 2 ] Since the application was filed, rule 57 was replaced with a new set of rules, cited as the Court of Appeal Rules, NLR 38/16.

These Rules came into effect on October 17, 2016, the day before the hearing of the application. The new rules contain a transition provision, rule 60, which provides in subsection (1): Proceedings commenced, but not completed, prior to the coming into force of these rules shall be governed by these rules without prejudice to anything lawfully done under the former rules. It follows from this rule that the new Rules apply to this application.

[ 3 ] This is an important consideration because the new Rules made a fundamental change to the requirement for leave to appeal interlocutory orders, such as the order that is the subject of this application. Under the new Rules, orders in “uncompleted matters” (as interlocutory matters are now called) may be appealed as of right. However, under rule 35, the responding party may apply, following the filing of the appeal, to have the notice of appeal struck for reasons which are set out in the rule.

Rule 35(1) provides: 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. [ 4 ] Because the new Rules apply to this case, leave to appeal is not necessary, though rule 35 would apply. [ 5 ] Rule 9 sets out special requirements where an appeal involves a child. Practice Note No. 3, authorized under rule 4 of the Rules, directs that where an appeal involves a child, counsel should strive to work cooperatively to perfect the appeal and should take all steps needed to expedite the preparation of any necessary transcripts and the filing of the transcript, appeal book and factum in accordance with

Part 7 of the Rules. This Court gives priority to cases in which rule 9 is engaged. [ 6 ] Accordingly, I disposed of the application for the reasons set out in this Memorandum of Disposition. The appeal should proceed without delay in accordance with rule 9 of the new Rules which governs appeals involving children. Application allowed.