R. v. L.R., 2019 NLCA 67

C.R. (appellant) v. L.R. (applicant/respondent) (18/89) Indexed As: C.R. v. L.R. 2019 NLCA 67 5 C.A.N.L.R. 116 Court of Appeal of Newfoundland and Labrador O’Brien J.A. October 15, 2019

Summary: C.R. wanted their child to attend school Y instead of school X during the 2018-2019 school year. L.R. was opposed. The applications judge determined that C.R. was not entitled to change the child’s school during the 2018-2019 school year, as C.R. failed to comply with the consultation and notice requirements of a 2016 Parenting Order. C.R. appealed the order that the parties’ child was to remain in school X for the 2018-2019 school year. L.R. subsequently applied to this Court to have the notice of appeal stuck out, with costs. Held: Application granted.

O’Brien J.A.: C.R. advised during the hearing of the application to strike the notice of appeal that he did not intend to proceed with the appeal. As a result, it was ordered that the notice of appeal be struck out pursuant to rule 36 of the Court of Appeal Rules (paragraphs 10- 13). L.R. was awarded costs pursuant to rule 18(2), which applies when an appeal is discontinued (paragraphs 14-17). Cases cited: C.R . v. L.R., 2018 NLCA 58 Rules considered: Court of Appeal Rules , NLR 38/16, rules 17 , 18 , 36 , 42 Counsel: Appearing on his own behalf, the appellant; Alexandra Kindervater, for the applicant/respondent.

The application was heard and decision rendered orally on October 8, 2019 by O’Brien J.A. The following memorandum of disposition was filed on October 15, 2019 by O’Brien J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION

O'Brien J.A.: [ 1 ] The Applicant/Respondent, L.R., brought an application requesting that the Notice of Appeal filed in this matter by the Appellant, C.R., be struck, with costs to be awarded to L.R. [ 2 ] The appeal was from a September 28, 2018 order of a judge of the Supreme Court of Newfoundland and Labrador, Family Division, wherein the judge determined what school the parties’ child (whom I will refer to as

A) would attend. [ 3 ] Prior to the 2018-2019 school year, A had attended school X.

C.R. wanted A to attend a different school (school Y), commencing in September 2018. [ 4 ] A 2016 Parenting Order in force in this matter gave C.R. the right to change A’s school provided that C.R. consulted with L.R. and with school officials and education professionals involved in A’s education before deciding to make such a change (the consultation requirement), and provided also that C.R. gave L.R. 30 days written notice of any decision to change schools (the notice requirement). [ 5 ] L.R. opposed C.R.’s decision to change A’s school, and made an application to the Family Division challenging the decision.

The applications judge determined that C.R. was not entitled to change A’s school during the 2018-2019 school year, as C.R. had not complied with the consultation and notice requirements of the 2016 Parenting Order. [ 6 ] As a result, the applications judge ordered, on September 28, 2018, that A “ shall remain at [school X] for the 2018-2019 school year.” [ 7 ] Also on September 28, 2018, C.R. filed a Notice of Appeal in this Court, appealing the applications judge’s order that A remain at school X for the 2018-2019 school year. [ 8 ] On October 1, 2018, C.R. applied for a stay of enforcement of that order, pursuant to rule 42 of the Court of Appeal Rules , NLR 38/16 .

On October 9, 2018 C.R.’s application for a stay of enforcement was dismissed by Justice Welsh of this Court, with “costs in the cause” ( C.R . v. L.R , 2018 NLCA 58 ). [ 9 ] No further steps were taken by C.R. to move the appeal forward or perfect the appeal. No transcript, appeal book or factum was filed with the Court , as required by the Court of Appeal Rules . [ 10 ] On September 20, 2019, L.R. filed an application seeking an order striking out the Notice of Appeal and requesting costs. The application was filed pursuant to rule 36 of the Court of Appeal Rules , which states: 36

(1) A party to an appeal may apply at any time before or at the hearing of the appeal for an order (

a) striking out the notice of appeal … … on the grounds that … (

e) the appellant has unduly delayed the preparation and perfection of the appeal; [ 11 ] The application to strike out the Notice of Appeal was heard on October 8, 2019. At that time, C.R. advised the Court that he did not intend to proceed with the appeal. C.R. explained that, while he was not permitted to change A’s school for the 2018-2019 school year, he was permitted to make the change for the 2019-2020 year, as he had subsequently satisfied the consultation and notice requirements of the 2016 Parenting Order.

C.R. had thereby complied with a provision of the September 28, 2018 order dealing with the 2019-2020 school year, which stated: For the 2019-2020 school year, provided he follows both the notice requirement and the requirement to consult with professionals involved in [A’s] education, as set out in the Parenting Order dated May 9, 2016, [C.R.] is permitted to change [A’s] school in accordance with the terms of the Parenting Order. [ 12 ] C.R. further advised that as A was presently attending school Y, which was the school C.R. preferred, there was no reason to continue with the appeal. [ 13 ] In light of the circumstances, it was ordered that the Notice of Appeal be struck out pursuant to rule 36 . [ 14 ] L.R. also sought costs.

Costs is a discretionary matter under the Court of Appeal Rules , in that the “Court may make such order as to costs as it considers appropriate” (rule 58). There is discretion to award, or decline to award, costs when a notice of appeal has been struck out. [ 15 ] Notably, the Rules indicate specific costs consequences when an appeal has either been deemed abandoned (rule 17) or discontinued (rule 18).

The Rules state that a respondent “shall be entitled to costs”, unless waived, in a deemed abandonment (rule 17(7)) or in a discontinuance (rule 18(2)). [ 16 ] While an order striking out a notice of appeal is neither a deemed abandonment nor a discontinuance, the result is the same. Although an award of costs is not specifically mandated by the Court of Appeal Rules when a notice of appeal is struck out, there is some internal logic and consistency in awarding costs in such instances unless the circumstances are such that judicial discretion should be

otherwise exercised. As such, the Rules and costs consequences relating to a deemed abandonment and a discontinuance can inform a decision to award costs when a notice of appeal is struck out, without fettering the Court’s overall costs discretion in rule 58. [ 17 ] In this case, L.R . was successful in both the stay of enforcement application and the application to strike out the Notice of Appeal. As there was nothing to indicate that an award of costs would be otherwise inappropriate in this circumstance, it was ordered that L.R. be awarded costs relating to both applications under Column 3 of the Scale of Costs in the Court of Appeal Rules . Application granted.