2021 NLCA 37, 2021 NLCA 37

A.B. (appellant) v. K.B. (applicant/respondent) (21/33) Indexed As: A.B. v. K.B. 2021 NLCA 37 6 C.A.N.L.R. 690 Court of Appeal of Newfoundland and Labrador Welsh J.A. June 22, 2021

Summary: A.B., the father, filed a notice of appeal alleging errors in the applications judge’s decision refusing to make an order regarding shared parenting with K.B., the mother. In response, K.B. filed with this Court an application to strike the notice of appeal. Held: Application granted. Welsh J.A.: As the appeal involved an uncompleted matter, to proceed with an appeal at this stage of the proceedings would not have served the interests of the parties or the children, and would have been an inefficient use of judicial resources. The notice of appeal was struck (paragraphs 4-10). Rules considered: Court of Appeal Rules, NLR 38/16, rules 35 , 7 (

n) Counsel: Kolin P. Kennedy, for the appellant; Melanie R. Del Rizzo Q.C. and Adrienne H.Y. Ding, for the applicant/respondent. The application was heard and decision rendered orally on June 22, 2021 by Welsh J.A. The following memorandum of disposition was filed on June 24, 2021 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] On May 31, 2021, A.B., the father of his two school-aged children, filed a notice of appeal alleging errors by the applications judge in refusing to make an order of shared parenting with the children’s mother, K.B.

In response, on June 4, 2021, the children’s mother filed an application seeking to strike the notice of appeal. [ 2 ] At the hearing, I granted the mother’s application and struck the notice of appeal pursuant to rule 35 of the Court of Appeal Rules , NLR 38/16 , with costs of the application under column 3 of the scale of costs in the Court of Appeal Rules . Background [ 3 ] At the hearing on May 20, 2021, the judge began by stating that the matter was before the court on an interim application filed by the father. The matter was set for a half-hour hearing.

The judge indicated that she had read the three affidavits that had been filed.

However, she went on to emphasize that the parties did not agree as to the facts. Indeed, she concluded that “you agree, literally, on nothing.” In the result, it was impossible for the judge, based on the written material, to make findings of fact or to make a decision regarding shared parenting. Rather, she made an interim order granting the father increased parenting time, but not shared parenting. A case management hearing has been set for July 7, 2021. Analysis [ 4 ] In seeking to strike out the notice of appeal, the mother relies on rule 35 of the Court of Appeal Rules .

That rule applies where an appeal is commenced in an uncompleted matter. Because the order at issue here is an interim order, it satisfies the definition of an uncompleted matter, that is, “a matter where the issues between the parties have not been determined by a final decision or order in the court appealed from” ( rule 7 (n)). [ 5 ] Pursuant to rule 35 , a respondent may apply to have a 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. [ 6 ] As stated by the applications judge, the parties have just begun the process of having parenting of the children determined by means of the judicial process. A case management hearing has been set for July 7. Settlement discussions may prove to be helpful in determining what is in the best interests of the children.

If it appears to be appropriate at some time in the process, an application may be made in the Supreme Court, Family Division to have the matter heard on an expedited basis. [ 7 ] Having considered the written and oral submissions of the parties at the hearing, I was satisfied that the notice of appeal is premature. Even if the appeal was successful, the lack of a factual foundation, which was discussed by the applications judge, would apply equally in this Court. The only possible remedy would be to remit the matter to the Family Division for presentation of the evidence and a decision on the merits.

An appeal at this stage would not be an efficient use of either judicial resources or the resources of the parties. [ 8 ] Further, it could not be expected that this Court would request an expedited trial in the Family Division. While such a request may be made in appropriate circumstances, given the early stage in the proceedings in this case and the lack of a factual foundation, this is not an appropriate circumstance for such a request. [ 9 ] In light of the above considerations, I was satisfied that, pursuant to rule 35, the notice of appeal should be struck.

To proceed with an appeal at this stage of the proceedings would not serve the interests of the parties or the children and would be an inefficient use of judicial resources. [ 10 ] Accordingly, the notice of appeal was struck. K.B. is entitled to her costs of this application under column 3 of the scale of costs in the Court of Appeal Rules . Application granted.