2022 NLCA 35, 2022 NLCA 35

Wilfred Cassell (applicant/appellant) v. Laura Cassell(respondent) (22/22) Indexed As: Cassell v. Cassell 2022 NLCA 35 7 C.A.N.L.R. 675 Court of Appeal of Newfoundland and Labrador Goodridge J.A. May 31, 2022

Summary: Wilfred Cassell sought to appeal a consent order of the Supreme Court, Family Division dealing with various matters, including the saleof the matrimonial home. The order was filed on June 4, 2021. The prescribed 30 day time limit for filing a notice of appeal expired onJuly 5, 2021. On April 8, 2022, Mr. Cassell applied for an extension of the time limit to file a notice of appeal. Held: Application denied. Goodridge J.A.: Mr. Cassell did not demonstrate a bona fide intention to appeal the order within the appeal period.

His actions andcommunications support a conclusion that he was aware of the terms of the order, was compliant with those terms, and did nothing toindicate a bona fide intention to appeal the order within the prescribed time limit (paragraphs 5-8). Mr. Cassell did not provide a reasonable excuse for his failure to comply with the prescribed time limit. Despite having mild cognitiveimpairment as a consequence of Huntington’s disease, Mr. Cassell’s actions and communications during the appeal period supported aconclusion that he was aware of the terms of the order from the outset (paragraphs 9-11).

There was no merit to the appeal that would justify granting leave. At trial, Mr. Cassell confirmed he could hear all that was being said;his counsel advised the Court that he had discussed the terms of the consent order with him and that he had agreed to those terms; andMr. Cassell confirmed that he was satisfied with the agreement when asked by the judge. The trial transcript and Mr.

Cassell’ssubsequent conduct, including the signing of a sale agreement in relation to the matrimonial home and searching for newaccommodations, indicated that he understood and agreed to the terms of the consent order (paragraphs 12-16). Mr. Cassell’s lack of recall of participating in the hearing and agreeing to the consent order did not amount to special or exceptionalcircumstances (paragraph 17). Cases cited: Law Society of Newfoundland v. Fahey, 2000 NFCA 19 K.K. v. Manager of Children and Youth Services, Zone D, 2022 NLCA 13 Stockwood v. Hayden, 2010 NLCA 39, 298 Nfld. & P.E.I.R. 145 Beanland v.

Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.)

Rules considered: Court of Appeal Rules , NLR 39/16, rule 14 Counsel: Matthew J.M. Drover, for the applicant/appellant; Appearing on her own behalf, the respondent. The application was heard on May 24, 2022 before Goodridge J.A. The following judgment was filed on May 31, 2022 by Goodridge J.A. ______________________________________________________________ Goodridge J.A.: [ 1 ] On April 8, 2022, Wilfred Cassell applied for an extension of the time limit for filing a notice of appeal regarding an order of the Family Division of the Supreme Court.

That Family Division order was granted (oral) during a January 28, 2021 court hearing, and filed (written) on June 4, 2021. The prescribed time limit for filing the notice of appeal expired on July 5, 2021 – 30 days after filing. The order addressed various matters but only the part of the order dealing with sale of the matrimonial home is raised in the proposed appeal. [ 2 ] The Court has discretion to extend the time limit for filing a notice of appeal ( Court of Appeal Rules , NLR 38/16, rule 14 ).

The issue is whether this is an appropriate situation for the exercise of that discretion. [ 3 ] In determining whether discretion should be exercised to extend the time limit, four factors that may be considered are: (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 time limit stipulated by the rule; (3) the potential merits of the appeal; and (4) whether there are special or exceptional circumstances justifying or working against the fairness of granting or refusing an extension of time ( Law Society of Newfoundland v.

Fahey , 2000 NFCA 19 , at para. 3 ; K.K. v. Manager of Children and Youth Services, Zone D , 2022 NLCA 13 , at para. 4 ). These four factors are just that – “factors”, not absolute criteria. They need not all be satisfied in every case and they are not exhaustive ( Stockwood v. Hayden , 2010 NLCA 39 , 298 Nfld. & P.E.I.R. 145 , at para. 14 ). [ 4 ] For the reasons that follow, Mr. Cassell’s application for an extension of the time limit is dismissed.

Bona fide intention to appeal within the appeal period [ 5 ] Both parties were represented by legal counsel at the January 28, 2021 hearing; both parties attended the hearing virtually (audio link). After the terms of the order were read aloud, the presiding judge asked if the parties were satisfied with the terms. Mr. Cassell replied, “We are”. [ 6 ] From January 28 to July 5, 2021 (the appeal period), Mr. Cassell’s conduct does not evidence a bona fide intention to appeal. Rather, his conduct evidences an acceptance of the order with no intention to appeal. [ 7 ] At the time the order was made Mr.

Cassell was living in the matrimonial home in Roddickton; he was aware and participated in efforts to sell the home following the January 28, 2021 order. A prospective buyer came forward and a price was agreed. On March 31, 2021, Mr. Cassell signed an agreement for the sale of the home at $130,000, subject to various conditions. The sale did not ultimately close but subsequent correspondence establishes that Mr. Cassell behaved in a manner consistent with acceptance of the terms of the order. On April 6, 2021, Mr.

Cassell’s social worker wrote the Community Support Program on his behalf requesting rental housing because his home was being sold; she noted that his stated preference was “to live in the Deer Lake or Pasadena area” (Application record, tab 11). On April 8, 2021, Newfoundland and Labrador Housing acknowledged receipt of an application for housing that had been signed by Mr. Cassell. On May 5, 2021, a physician who conducted a capacity assessment questionnaire, documented the following answer from Mr.

Cassell, “[My] house is for sale for separation of assets; [there are] minimal rental properties available” (Application record, tab 13). [ 8 ] Mr. Cassell’s actions and communications support a conclusion that he was aware of the terms of the order, was compliant with those terms, and did nothing that would evidence a b ona fide intention to appeal within the appeal period. Reasonable excuse for the failure to comply with the time limit [ 9 ] Mr.

Cassell’s excuse for missing the time limit is that, in consequence of Huntington’s disease, he was unaware of the consent order until “sometime after” June 4, 2021 (Application record, tab 1). [ 10 ] Mr. Cassell has Huntington’s disease; his symptoms include some cognitive impairment; he has difficulty understanding

complex matters (Application record, tab 10). In the May 5, 2021 capacity assessment of Dr. Brandi Iio, M.D., FRCSC, Mr. Cassellreported “mild cognitive impairment on some days” (Application record, tab 13). During the hearing of this application, Mr. Cassell’scounsel explained that his client has the cognitive capacity to make decisions and issue instructions, but that advice needs repeatingmultiple times before he understands. [11] As noted above, Mr. Cassell’s actions and communications during the appeal period support a conclusion that he was aware ofthe terms of the order from the outset.

In the circumstances, Mr. Cassell has not provided a reasonable excuse for his failure to complywith the time limit. Potential merits of the appeal [12] Mr. Cassell challenges the part of the consent order directing sale of the matrimonial home on a basis similar to non est factum –no valid consent because “he did not understand, appreciate, or recall what he was agreeing to …” (Application record, tab 3).

Therelevant part of the consent order, directing sale of the matrimonial home and equal division of the net proceeds, states: The parties agree that the matrimonial home … shall be sold and the proceeds shall be applied to the mortgage and other fees associatedwith the sale … The remaining proceeds shall be divided equally amongst the parties. (Application record, tab 3) [13] The merits of this appeal argument would depend on Mr. Cassell’s cognitive capacity to understand and voluntarily consent as ofJanuary 28, 2021; the merits of the appeal would not depend on Mr. Cassell’s current cognitive capacity or memory.

The memoryproblem that Mr. Cassell describes in his March 3, 2022 affidavit – no current recall of the hearing or the agreement – would not berelevant to assessing the validity of the consent he gave 16 months ago. [14] At the January 28, 2021 hearing, the presiding judge inquired of Mr. Cassell whether he could hear all that was being said; hereplied in the affirmative, “Yes”. Mr. Cassell’s counsel advised the Court that he had discussed the terms of the consent order in advancewith Mr. Cassell and that he had agreed with those terms. Counsel then read the terms into the court record.

After these terms were read,the judge asked, “Are all parties satisfied with the agreement”. In his response Mr. Cassell confirmed, “We are”. The transcript from thehearing, and Mr. Cassell’s subsequent conduct (signing a sale agreement and searching for new accommodations) would indicate that heunderstood and agreed to the terms of the consent order. [15] I am also cognizant of the general rule against disturbing a consent order. This rule was discussed by Green J.A., writing for aunanimous Court, in Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.): [40] ...

The "general rule" as stated by Cameron, J.A., in this court in McLean et al. v. Carr Estate et al. (1996), (NLCA), 142 Nfld. & P.E.I.R. 25, 445 A.P.R. 25; 138 D.L.R. (4th) 541, is that a final decision of a court cannot be reopened. This isespecially so where the order is made on consent because in such circumstances, it is based upon the contract of the parties. ... [16] In the result, I am satisfied that there is no merit to the appeal that would justify granting leave. Special or exceptional circumstances [17] Mr.

Cassell’s current lack of recall of participating in the January 28, 2021 hearing and agreeing to the consent order, do notamount to special or exceptional circumstances. Disposition [18] The application for an extension of the time limit to file a notice of appeal is dismissed. Laura Cassell shall have her costs undercolumn 3 of the scale of costs in the Court of Appeal Rules. Application dismissed.