2021 NLCA 6, 2021 NLCA 6

M.K. (applicant/intended appellant) v. J.P. (respondent) (20/64) Indexed As: M.K. v. J.P. 2021 NLCA 6 6 C.A.N.L.R. 360 Court of Appeal of Newfoundland and Labrador O’Brien J.A. January 13, 2021

Summary: M.K. applied for an extension of time to file a notice of appeal. The parties had been in a common law relationship and have one childtogether. Since the separation, the child had been living with J.P. M.K. filed an application for interim access in the Supreme Court ofNewfoundland and Labrador, Family Division. The application was denied. M.K. filed a notice of appeal of that decision, but the noticeof appeal was filed beyond the time limit for commencing an appeal. M.K. proceeded to file an application for an extension of time tofile a notice of appeal. Held: Application dismissed.

O’Brien J.A.: M.K. had a bona fide intention to appeal and had a reasonable excuse for failing to file a notice of appeal within the 10-daytime frame in the Court of Appeal Rules (paragraphs 7-9). The potential merits of the appeal do not support granting an extension of time. M.K.’s sole ground of appeal – that he was deniedprocedural fairness – was not supported on the record (paragraphs 10-17). There were several exceptional or special circumstances working against the fairness of an extension.

One, there was a potential forcircuitous litigation given that the likely result of a successful appeal would be remitting the matter to the Supreme Court ofNewfoundland and Labrador, Family Division, where issues regarding parenting had not yet been adjudicated. Two, it would still beopen to J.P. to file an application to strike the notice of appeal even if the application for an extension of time was granted. Three, therewas a suggestion that parenting arrangements could be reached by consent (paragraphs 20-24).

On balance, the factors to be considered upon an application for extension of time militated against extending the time for filing a noticeof appeal (paragraphs 25-26). Cases cited: Law Society of Newfoundland v. Fahey, 2000 NFCA 19 Stockwood v. Hayden, 2010 NLCA 39 Steele v. Rendell, 2016 NLCA 37 Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) Rowe v. Newfoundland and Labrador, 2017 NLCA 17 Tizzard v. Tizzard, 2017 NLCA 51

Rules considered: Court of Appeal Rules , NLR 38/16, rules 14 , 8(2) (b); 35 Counsel: Appearing on his own behalf, the applicant/intended appellant; Riley Moss, for the respondent. The application was heard on December 1, 2020 before O’Brien J.A. The following memorandum of disposition was filed on January 13, 2021 by O’Brien J.A. _____________________________________________________________ MEMORANDUM OF DISPOSITION O’Brien J.A.: [ 1 ] This is an application by M.K. (Mr.

K) for an extension of time to file a notice of appeal. [ 2 ] Mr. K and J.P. (Ms.

P) had been in a common law relationship and have a child together. Ms. P left the relationship, with their child, and went to live at a transition house for women in March 2020, at which time Mr. K’s access to their child ceased. The parties continue to live apart, with their child living exclusively with Ms. P. [ 3 ] Mr. K filed an application in the Supreme Court of Newfoundland and Labrador, Family Division, seeking interim access to their child. The Family Division Judge denied the application for interim access and Mr. K filed a notice of appeal in this Court.

However, the notice was filed beyond the time limit for commencing an appeal. As such, Mr. K applied for an extension of time to file the notice of appeal. [ 4 ] Authority to extend the time to file a notice of appeal is found in rule 14 of the Court of Appeal Rules , NLR 38/16 , which states that this “Court may extend… any time prescribed by these rules before or after the expiration of that time.” [ 5 ] In Law Society of Newfoundland v. Fahey , 2000 NFCA 19 , at para. 3 , this Court identified factors to be considered when an application is made to extend the time for filing a notice of appeal .

They include: 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. [ 6 ] These factors “need not all be satisfied in every case and they are not exhaustive” ( Stockwood v. Hayden , 2010 NLCA 39 , at para. 14 ; see also Steele v. Rendell , 2016 NLCA 37 , at para. 11 ).

The factors identified above will be considered in the context of the present application. Bona fide intention to appeal [ 7 ] In the present application, Mr. K clearly had a bona fide intention to appeal the decision within the appeal period. Counsel for Ms. P also agreed that there was an intention to appeal.

Reasonable excuse for the failure to comply with the rule [ 8 ] Regarding whether there was a reasonable excuse for not filing the notice of appeal in the required time period, it is noted that this was an appeal of an interim decision, which is considered an “uncompleted matter” under the Court of Appeal Rules ( rule 8(2) (b)). As such, a notice of appeal must be filed within 10 days after the order appealed from has been filed, as opposed to 30 days for completed matters. [ 9 ] Mr. K explained that, although he was represented by counsel in the Family Division application, he filed the notice of appeal

himself and was unaware of the 10-day filing deadline. He stated in his application: “I didn’t realize that I only had ten days”. The noticeof appeal was filed shortly after the 10-day period had expired. In the circumstances, there is a reasonable excuse for failing to meet thefiling deadline. Potential merits of the appeal [10] With respect to the potential merits of the appeal, Mr. K’s submission is that he was denied procedural fairness because he didnot have a proper opportunity to be heard and make submissions before his interim application for access was dismissed.

He states in thenotice of appeal: “I wish to appeal and be given the opportunity to speak”. [11] The record indicates that there was a hearing in the Family Division, via teleconference, and that Mr. K and his counselparticipated in the hearing and made submissions regarding the request for interim access. [12] The hearing occurred on two dates. The matter was first called on September 2, 2020 and Mr. K and Ms. P participated in theproceeding on that date, along with their respective legal counsel. Both Mr. K and Ms. P addressed the Court directly with respect to theapplication, as did their counsel.

The matter was adjourned so that a social worker with the Department of Children Seniors and SocialDevelopment, who had been identified as having worked with the parties and who was familiar with the matter, could be subpoenaed togive evidence. [13] The application continued on September 9, 2020. Mr. K and Ms. P both participated and both continued to be represented bycounsel. The social worker who had been subpoenaed in the matter testified and expressed safety concerns regarding access. In the socialworker’s view, Mr.

K had significant anger management issues, was confrontational and unable to self-regulate his emotions or controlhis anger. The social worker testified regarding her understanding of physical acts of aggression in the relationship, Ms. P’s fear of Mr.K, and police involvement. Counsel for both parties questioned the social worker at some length regarding her testimony and concerns,and both counsel made submissions regarding interim access. Additionally, the record indicates that Mr. K spoke directly to the Courtabout his request for interim access.

He specifically addressed the testimony and concerns raised by the social worker, and indicated thatmuch of the social worker’s testimony was inaccurate and one-sided. Having heard the evidence and submissions, the Judge made thedecision to dismiss the application for interim access. [14] In deciding the matter, the Judge observed that what he was being requested to consider was an interim application.

As such, andunless the matter is resolved, the Judge noted that there would be a hearing on the matter in future, with an opportunity to call furtherevidence before a final determination would be made regarding parenting. At this interim stage, the Judge observed that there wereserious allegations in respect of the relationship between Mr. K and Ms. P and that, in the circumstances, he was “not prepared to orderaccess at this time”. The Judge indicated that that the matter was to “proceed through the normal course”, and directed Ms.

P to file aresponse to the application, setting out her position regarding access. He further noted that, should the parties agree, they could initiatesupervised access on a consensual basis. However, in light of the information provided and the concerns expressed, the Judge indicatedthat he would not order interim access. [15] Mr. K argues that he was denied procedural fairness on the interim application. As noted by Green J.A. in Beanland v. Beanland(1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld.

C.A.), the requirements of procedural fairness must be consideredin the context of the proceedings in question: [11] … it must be recognized that issues of procedural fairness are not determined in a vacuum, but in concrete fact situations wherecompeting interests of the parties must constantly be balanced against each other. The rules of court and other principles of adjective laware manifestations of this balancing process.

Accordingly, it is to the specific procedural principles applicable to the particular proceduralstage that is involved to which a court must first turn for guidance to ensure that fairness issues are determined in this balancing context. … [16] Considered in the particular context of this interim hearing, where both parties participated and were represented by counsel, andwhere both parties had the opportunity ask questions and make submissions to the Judge before the matter was decided, the record doesnot support an alleged denial of procedural fairness or natural justice. [17] This is the sole ground of appeal.

Without conclusively determining the potential merits of this procedural fairness argument, forthe purposes of this application the argument cannot be considered to be compelling or strong in light of the record. As such, thepotential merits of the appeal in this circumstance would not be a factor supporting an extension of the time for filing the notice ofappeal.

Any exceptional or special circumstances justifying or working against the fairness of an extension [18] In assessing this factor, while the Court of Appeal Rules certainly provide for an appeal from an interim order, the application toextend the time to file the notice of appeal in this circumstance must be considered in the context of the ongoing litigation in the FamilyDivision. Counsel advised that the matter has been set down for a case management hearing in the Family Division.

Ultimately ahearing on the merits of the matter will be required in the Family Division to determine the parenting issues, unless some agreement isreached. As well, the Court was advised that a separate application for access has been commenced by Mr. K’s mother, and that thisapplication had not yet been heard. [19] In this context, this Court must consider the potential impact and effects of an appeal of the interim Family Division decision. Ifthe application is granted, and the time to file the notice of appeal is extended, an appeal would be held in this Court.

This would requirethe parties to shift their focus and resources from the Family Division in order to meet the requirements of an appeal, including preparingand filing a transcript, a factum for each party, and an appeal book. The time and expense involved in perfecting the appeal and attendingat an appeal hearing is relevant. [20] This is especially so as, ultimately, even if the appeal was heard and Mr. K was successful in his argument that proceduralfairness was denied, the most likely result would be that the matter would be remitted to the Family Division. As the issues regarding

parenting have not yet been adjudicated in the Family Division, it would be unlikely and extraordinary for this Court to make a first- instance, substantive order in this regard. Of course the making of any order by this Court would depend on success on the merits of the appeal, which, as discussed above, is clearly not a foregone conclusion ( see Rowe v.

Newfoundland and Labrador , 2017 NLCA 17 , at para. 16 ). [ 21 ] The additional time and resources required to prosecute an appeal of this interim decision (which, even if successful, would likely result in the matter being returned to the Family Division, where the issues would be considered further), must be assessed. The context and the interplay between what this Court would be asked to deal with on an appeal, and what the Family Division is already dealing with, does not support an extension of time to file the notice of appeal.

An appeal at this stage may be the start of a circuitous, lengthy and expensive route back to the Family Division, where the matter is already being considered. This would not be the most productive use of time or resources in the present context. An appeal would not fast-track the matter, and may have the opposite result. [ 22 ] Additionally, even if the appeal had been brought within the required time limit (and this Court’s consent to extend the time for filing a notice of appeal was not required), nothing would foreclose Ms.

P from making an application under rule 35 of the Court of Appeal Rules to have the notice of appeal struck. Rule 35 permits a party, through an application, to request that an appeal in an uncompleted matter not proceed, in circumstances where hearing the appeal of the uncompleted matter would result in delay, inconvenience or an inefficient use of judicial resources. These considerations also feature in the present application ( see Tizzard v. Tizzard , 2017 NLCA 51 , at para. 12 ). [ 23 ] Finally, at the application before this Court, counsel for Ms. P advised that Ms. P was open to having Mr.

K exercising access by consent, provided Ms. P’s concerns and the concerns of the social worker were addressed. This would likely involve having access supervised by a third party agency, and having Mr. K participate in programming and services related to anger management and counselling. Ms. P maintained the same position in her written response filed in the Family Division. [ 24 ] In light of this, this Court agreed to reserve the decision on this application for a period of time to allow the parties to explore whether an agreement could be achieved.

The Court was subsequently advised that an agreement had not been reached. However, given Ms. P’s stated position that she is not opposed to an agreement permitting supervised access, this might be explored further, either as part of the ongoing Family Division proceedings or otherwise. [ 25 ] In

summary, while Mr.

K has shown a good faith intention to appeal and has provided a reasonable excuse for failing to file the notice of appeal within the required time limit, the potential merits of an appeal are not strong and the particular circumstances of this case, namely the context of the ongoing proceedings in the Family Division and the potential impact and consequences of an appeal in that context, do not support an extension of time in this instance. [ 26 ] Considering all the factors I conclude that, on balance, the factors militate against extending the time limit for filing the notice of appeal in this circumstance.

As a result, the application is dismissed. There is no order as to costs. Application dismissed.