2017 NLCA 51, 2017 NLCA 51

Donald Tizzard (applicant) v. Jacqueline Tizzard (respondent) (17/61) Indexed As: Tizzard v. Tizzard 2017 NLCA 51 2 C.A.N.L.R. 163 Court of Appeal of Newfoundland and Labrador Hoegg J.A. August 8, 2017

Summary: The parties were parents to two children. Their 15-year-old son was autistic and, at the time the application was heard, had been under the care and treatment of a specialist physician for around two years. After the parties’ separation, the parties’ son eventually went to live with his father, who did not support his son’s care and treatment regime, and allegedly influenced him against it. The mother sought an ex parte emergency interim order to have the son returned to her custody so as to facilitate the continuation of his treatment regime.

An interim order was granted and the parties subsequently entered into a consent order which confirmed that Jacqueline Tizzard had sole custody of the parties’ son and granted reasonable access to Mr. Tizzard. The Consent Order also provided that Mr. and Mrs. Tizzard have joint custody of their daughter. The father filed an application to vacate the interim order and to request sole custody of both children. He also filed an application for an extension of time to appeal with a draft notice of appeal. Held: Application dismissed. Hoegg J.A.: With the consent of Mr.

Tizzard, the Court treated his application to vacate the interim order as a notice of appeal respecting that order, and effectively merged it with a subsequently filed draft notice of appeal, which was submitted with his extension application.

The factors to be considered in deciding an application to extend the time for filing a notice of appeal include: whether the appellant had a bona fide intention to appeal within the appeal period; whether there is a reasonable excuse for the failure to comply with the rule; the potential merits of the appeal; and the presence of any exceptional or special circumstances justifying or working against the fairness of an extension. In this case, Mr. Tizzard did not offer a clear explanation or excuse for not seeking to appeal the interim ex parte order in time.

The grounds for the appeal were neither clearly defined nor shown to be connected to the terms of the interim ex parte order. There were other factors working against the fairness of an extension which justified dismissal of Mr. Tizzard’s application. Because the terms of the interim ex parte order were confirmed following an inter partes hearing and modified only with respect to specifying the reasonable access Mr. Tizzard had to his son by a consent order, in effect, Mr. Tizzard was seeking to appeal an order to which he had consented. Rule 34 stipulates that leave is required to appeal a consent order.

No leave was sought in this case. Moreover, the order was moot and could change further before custody of the children is resolved. Even if Mr. Tizzard had filed his appeal on time, these circumstances might be good reason for delaying it until the litigation had been completed. The application was dismissed. Cases cited:

Fahey v. Law Society of Newfoundland and Labrador , 2000 NFCA 19 , 95 A.C.W.S. (3d) 1011 Counsel: Appearing on his own behalf, the applicant; Sarah Clarke, for the respondent. This application was heard and decision rendered orally on July 14, 2017 by Hoegg J.A. The following reasons for decision were filed on August 8, 2017 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [ 1 ] Donald and Jacqueline Tizzard are the parents of Joseph Daniel Tizzard (Joey), aged 15, and Olivia Dawn Tizzard, aged 14.

Joey is autistic, and as a consequence, the Tizzard family has been extensively involved with Child, Youth and Family Services for several years. Since 2015, Joey has been under the care and treatment of a specialist physician. [ 2 ] In February 2017, Mr. and Mrs. Tizzard separated. Joey did not cope well with this change to his family life. After running away from home several times, he was admitted to the Waterford Hospital where he stayed for three weeks.

He was released to his mother’s care, and the plan was for him to continue his treatment with the specialist doctor. [ 3 ] Joey subsequently decided to live with his father. Mr. Tizzard does not support Joey’s care and treatment regime, and allegedly has influenced Joey against it. It has also been alleged that Mr. Tizzard refuses to comply with the doctor’s recommendations when Joey is in his care and custody. Since Joey decided to reside with his father in late April, he came to dislike and mistrust his doctor, with whom he previously had had a good relationship. [ 4 ] On May 3, 2017, Mrs.

Tizzard sought an ex parte emergency interim order to have Joey returned to her custody so as to facilitate the continuation of Joey’s treatment regime. A Family Division Justice granted the order, and set the matter for an inter partes hearing on May 10, 2017. On May 10, 2017, the Emergency ex parte Interim Custody Order granting sole custody of Joey to Jacqueline Tizzard was confirmed and reasonable access to Joey was granted to Mr. Tizzard. The Interim Order also provided that Mr. and Mrs. Tizzard have joint custody of Olivia. The matter was set for a case management hearing (CMH) on June 19, 2017.

Prior to June 19, 2017 Mr. Tizzard subpoenaed witnesses to give evidence at the CMH despite being advised by court staff that evidence is not taken at CM hearings. On June 19, 2017, the subpoenaed witnesses were excused and a consent order was entered into by Mr. and Mrs. Tizzard. The Consent Order provided that Mr. Tizzard shall have access to Joey on Tuesday and Thursday afternoons and every second weekend, and confirmed all other terms of the May 10, 2017 Interim Order. The matter is scheduled for a further CMH on September 15, 2017. [ 5 ] On June 27, 2017 Mr.

Tizzard applied to this Court for an “Order to Vacate the Interim Order … of May 3, 2017” and “an Order granting Sole Custody of both children of the Marriage” to him. He also applied to be “exempted from the payment of fees and charges” relating to proceedings in this Court. On July 5, 2017 he applied for an extension of time to appeal the May 3, 2017 order. [ 6 ] Mr.

Tizzard’s June 27, 2017 application to “Vacate the Interim Order” of May 3, 2017 was supported by his affidavit describing that Joey had requested to live with his father upon his release from hospital and that Joey had been forced to leave his home on May 3, 2017. In his July 5, 2017 application for an extension of time to appeal, Mr. Tizzard submitted a “draft” notice of appeal which states his grounds of appeal to be “violations of the Canadian Charter of Rights and Freedoms as set out in

section 7 of the Act ”, “violations of the Personal Health Information Act as well as the Privacy Protection Act ”, and “violation of the Privacy Act, 1981, C 6 as amended which is a tort, actionable without proof of damage and evidence submitted was in violation of the Privacy Act ”. [ 7 ] I heard Mr. Tizzard’s applications on July 14, 2017. With his consent, I treated his application to vacate the May 3, 2017 interim order as a notice of appeal respecting the May 3, 2017 order, and effectively merged it with the draft notice of appeal submitted with his extension application of July 5, 2017. Mr.

Tizzard withdrew his June 27, 2017 application for exemption of fees and charges during the hearing, and I dismissed his application for an extension of time to appeal the May 3, 2017 Order. My reasons follow. [ 8 ] The factors to be considered in deciding an application to extend the time for filing a notice of appeal were set out in Fahey v.

Law Society of Newfoundland and Labrador , 2000 NFCA 19 , 95 A.C.W.S. (3d) 1011 at para. 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. [ 9 ] In this case, Mr. Tizzard did not offer a clear explanation or excuse for not seeking to appeal the May 3, 2017 Interim ex parte

Order in time. As well, the grounds for Mr. Tizzard’s appeal, as described in his draft notice and expanded upon in his oral submission, were neither clearly defined nor shown to be connected to the terms of the May 3, 2017 Interim ex parte Order. Regardless, there were factors working against the fairness of an extension which justified dismissal of Mr.

Tizzard’s application. [ 10 ] The terms of the Judge’s May 3, 2017 Interim ex parte Order were confirmed following an inter partes hearing on May 10, 2017, and following the inter partes hearing, the terms of the Judge’s May 10, 2017 order, modified only with respect to specifying the reasonable access Mr. Tizzard had to Joey, were confirmed by a Consent Order. In effect, Mr. Tizzard was seeking to appeal an order to which he had consented. Rule 34 stipulates that leave is required to appeal a consent order.

No leave was sought in this case and there is nothing about this consent order that suggests leave to appeal would be granted. [ 11 ] Even if it could be said that Mr. Tizzard did not fully understand what he was consenting to on June 21, 2017, the May 3, 2017 ex parte Order was an interim one which has been overtaken by subsequent events and therefore moot and may change before custody of the children is resolved. The litigation between Mr. and Mrs. Tizzard respecting Joey’s custody and how it relates to his care and treatment, which appears to be the main issue of concern to Mr.

Tizzard, is ongoing, and there is another CMH scheduled for mid- September at Family Division. Mr. Tizzard will therefore have ongoing opportunity at the Family Division to seek to amend the interim order currently in force and voice his concerns about Joey’s custody and how it relates to his care and treatment. [ 12 ] Even without the Consent Order, it would not be appropriate for Mr. Tizzard to appeal the Interim ex parte Order of May 3, 2017.

Appealing the terms of the May 3, 2017 Order, which have already been slightly modified and which are subject to ongoing and/or additional modification, would permit tandem proceedings in two different courts on the same issues. Aside from being costly, inefficient, and quite possibly unnecessary, such a situation could well render appeal proceedings in this Court futile or moot. Even if Mr. Tizzard had filed his appeal on time, these circumstances might be good reason for delaying it until the litigation had been completed (Rule 35(1)(c)). [ 13 ] Accordingly I dismissed Mr.

Tizzard’s application for an extension of time to appeal the May 3, 2017 Interim ex parte Order. I make no order as to costs. Application dismissed .