2011 NBCA 113, 2011 NBCA 113

COURT OF APPEAL OF NEW BRUNSWICK 117-11-CA LORNE BISHOP GRANT (Respondent) APPELLANT LORNE BISHOP GRANT (Intimé) APPELANT - and - - et - GINA LYNN GRANT (Petitioner) RESPONDENT GINA LYNN GRANT (Requérante) INTIMÉE Grant v. Grant, 2011 NBCA 113 Grant c.

Grant, 2011 NBCA 113 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : L'honorable juge en chef Drapeau L'honorable juge Larlee L'honorable juge Quigg Appeal from a decision of the Court of Queen's Bench: April 14, 2011 Appel d'une décision de la Cour du Banc de la Reine : Le 14 avril 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Motion heard: October 11, 2011 Motion entendue : Le 11 octobre 2011 Judgment rendered: December 15, 2011 Jugement rendu : Le 15 décembre 2011

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L'honorable juge Larlee Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Quigg Souscrivent aux motifs : L'honorable juge en chef Drapeau L’honorable juge Quigg Counsel at hearing: For the appellant: Scott N. Larson For the respondent: Mary Ann G. Holland Avocats à l'audience : Pour l’appelant : Scott N. Larson Pour l’intimée: Mary Ann G. Holland THE COURT The motion is dismissed without costs. LA COUR La motion est rejetée sans dépens. The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] The moving party has applied by Notice of Motion, pursuant to Rule 62.23(1)(

a) of the Rules of Court, for an order quashing the Notice of Appeal or dismissing the appeal on the ground that the appellant did not issue the Notice within 30 days from the date of the judge-made order or decision appealed from as required by s. 21(3) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.) and Rule 62.05(2)(a). The present appeal is not from a formal order made by the Clerk in furtherance of directions from the Court. I.

Issue [ 2 ] The issue before the Court on the motion is whether the time for filing the Notice of Appeal commences from the date of the filing of the written reasons or the date of a subsequent order of a judge of the Court of Queen’s Bench directing judgment. II. Background

[ 3 ] The key events giving rise to this motion may be set out in the following chronology: • On October 18, 2010, after a hearing, a judge of the Court of Queen’s Bench granted a divorce to the petitioner and reserved his decision on the claim for corollary relief and division of assets and debts under the Marital Property Act , S.N.B. 1980, c.

M-1.1. • On April 14, 2011, the judge rendered his written decision with respect to the outstanding issues. • On July 26, 2011, the decision dated April 14, 2011 was filed in the Clerk’s office in Saint John. • On August 16, 2011, the judge signed an order which directed judgment based on the reasons for decision of April 14, 2011. The order states that it was granted after hearing Mary Ann Holland, counsel for the Petitioner, and Lorne Bishop Grant, the Respondent on his own behalf.

Paragraph 10 of the order states that it is effective April 14, 2011. • On August 17, 2011, the order was filed in the Clerk’s office. • The appellant filed his Notice of Appeal on September 8, 2011. He has not appealed the order for divorce. He appeals the August 16, 2011 order with respect to provisions regarding spousal support, an automobile and his pension. III.

Pertinent Legislation and Rules [ 4 ] Section 21(3) of the Divorce Act reads as follows: 21(3) No appeal lies from an order made under this Act more than thirty days after the day on which the order was made. 21(3) Il ne peut être fait appel d’une ordonnance rendue en vertu de la présente loi plus de trente jours après le jour où elle a été rendue. [ 5 ] Rule 62.05(2) refers to the “Commencement of Appeal”. It states: 62.05(2) A Notice of Appeal shall be issued (

a) within 30 days from the date of the order or decision appealed from, or (

b) where leave to appeal is required, within 7 days from the date of the order granting leave. 62.05(2) L’avis d’appel doit être émis

a) dans les 30 jours de la date de l’ordonnance ou de la décision frappée d’appel ou

b) s’il faut obtenir une autorisation d’appel, dans les 7 jours de la date de l’ordonnance accordant l’autorisation. [ 6 ] The following Rule is also pertinent:

60.02 Decision Directing Judgment

(1) Where at a hearing or trial, a judge gives an order or decision directing judgment (

a) the court stenographer in attendance shall file a transcript or copy of the order or decision with the clerk of the judicial district in which the proceeding was commenced, and (

b) unless the judge orders otherwise, the judgment shall be dated as of the date on which the transcript or copy of the order or decision is filed and shall have effect from that date.

(2) Where, subsequent to the hearing or trial, a judge gives a written order or decision directing judgment (

a) he shall file his order or decision with the clerk of the judicial district in which the proceeding was commenced, and (

b) the judgment shall be dated as of the date when the order or decision is filed and shall have effect from that date. 60.02 Décision prescrivant la remise d’un jugement

(1) Lorsqu’à une audience ou lors d’un procès, le juge rend une ordonnance ou une décision prescrivant la remise d’un jugement,

a) le sténographe judiciaire de service doit déposer une transcription ou une copie de l’ordonnance ou de la décision auprès du greffier de la circonscription judiciaire où l’instance a été introduite et

b) sauf ordre contraire du juge, le jugement doit dès lors porter la date du dépôt de l’extrait ou de la copie de l’ordonnance ou de la décision et prend effet à partir de cette date.

(2) Lorsqu’après la tenue de l’audience ou du procès, le juge rend par écrit une ordonnance ou une décision prescrivant la remise d’un jugement,

a) il doit déposer son ordonnance ou sa décision auprès du greffier de la circonscription judiciaire où l’instance a été introduite et

b) le jugement doit dès lors porter la date du dépôt de l’ordonnance ou de la décision et prend effet à partir de cette date. IV. Analysis and Decision [ 7 ] The moving party relies on three cases to support the proposition that the time for filing the Notice of Appeal ceased 30 days after the date on which the trial judge signed the reasons for his decision April 15, 2011. MacBeth v. Davenport , [2006] N.B.J. No. 222 (C.A.) (QL) , was a decision I authored as a single judge and can be easily distinguished from the case at bar.

In MacBeth , the husband moved for an extension of time to file a Notice of Appeal from a divorce judgment, since the Notice was not filed within the thirty days following the filing of the decision. Almost one month after the filing of the decision, the wife unsuccessfully moved to have the original decision amended, under the so-called “slip rule”, because, she argued, the trial judge had omitted to deal with the husband's pension and RRSPs. The husband submitted the 30-day time period in which to file the Notice of Appeal began to run after the decision on the wife's unsuccessful motion was rendered.

This argument did not convince the Court to extend time to file the Notice of Appeal because the husband’s grounds of appeal were related to the original decision and the ruling on the wife's motion had no effect on them. The husband did not explain why the Notice of Appeal was not filed within the 30-day time period and there was no indication that he had an intention to appeal within the prescribed period. There was no serious issue to be appealed and the wife would have been prejudiced if time were extended.

There was also a comment about the formal order: The Record on Motion in this case did not comply with the Rules of Court . It did not include either a copy of the formal order or a copy of the decision sought to be appealed […] Counsel for Ms. Davenport filed a "Responding Document" that contained all the documents required by Rule 62.03(3). [para. 11] In any event, I am highly agnostic that a single judge could bind the Court to any position.

[ 8 ] Armstrong v. Armstrong , 2006 ABCA 228 , [2006] A.J. No. 847 (QL) , was also a motion to a single judge to extend time to appeal. The judge took into account a number of criteria before dismissing the motion. A formal order had not been filed in the case until the day he heard the motion. The judge commented that, in Alberta, “the Divorce Act and the Divorce Rules make time to appeal from any order or judgment run from pronouncement, not entry” (para. 21). [ 9 ] In Canada (Attorney General) v. Clorey , [1997] P.E.I.J.

No. 44 (C.A.) (QL) , the Prince Edward Island Court of Appeal considered the question of when the time for appeal begins to run. Prince Edward Island’s Rule 61.03(1) provides as follows: An appeal to the Appeal Division shall be commenced by serving a notice of appeal (Form 61A) … within thirty days after the date of the filing of the order appealed from, unless a statute or these rules provide otherwise.

In that case no formal order had yet been filed; the time within which an appeal must be commenced had not begun to run and therefore the applicants did not need an extension of time to file their Notice of Appeal. [ 10 ] These cases are not very helpful to us since the case at bar is quite different from the ones cited to us. Here, the appellant appeals from a judge-made order, filed on August 17, 2011, the purpose of which is to direct judgment. Certain paragraphs of that order are specifically attacked in the Notice of Appeal.

The issue is whether the appellant filed his Notice of Appeal in time. [ 11 ] Although it might be interesting to review the Rules of Court in each province to compare when the time to appeal commences, I do not think it is necessary in this case. Two key questions must be answered. The first question is whether there is any inconsistency between the provision contained in our Rule 62.05(2)(

a) and s. 21(3) of the Divorce Act . If there is, by virtue of the doctrine of paramountcy, it could be argued the provision of the Act applies. I am of the view that there is no conflict between s. 21(3) of the Act and the Rule. Recent decisions of this court have referred to the modern approach to statutory

interpretation (see, for example, Lévesque v. New Brunswick , 2011 NBCA 48 , 372 N.B.R. (2d) 202 , in which Drapeau C.J.N.B. refers to using a fair, large and liberal

interpretation (para. 63)). Reading the words of s. 21(3) of the Act and the applicable Rule, there is no inconsistency. That is not a surprising conclusion because the Rules of Court enable the Court to extend time for appeal. Obviously the Rule was written so it would complement s. 21 of the Act . [ 12 ] The second question is whether the “order” under s. 21 of the Act refers to the filing of the reasons for decision or the judge’s order directing judgment in accordance with particulars specified therein, which, as it turns out, respect the reasons for decision.

In deciding the issue of when the time begins to run, where, subsequent to the filing of the decision, an order was signed by the trial judge and filed in the Clerk’s office, one must take into consideration the provisions of Rule 60.02(2)(

a) and (b). In this case, there can be no doubt that since an order was signed by the judge and filed in the Clerk’s office in compliance with Rule 60.02(2)(b), the time for the appeal began to run once the order dated August 16, 2011 was filed in the Clerk’s office on August 17, 2011. Clearly the appellant was within the prescribed period for filing his Notice of Appeal. [ 13 ] With respect to the paragraph in the order specifying that the order is effective April 14, 2011, it has nothing to do with when the appeal period began to run.

I note that under s. 15.1(4) and s. 15.2(3) of the Divorce Act , dealing with corollary relief, the statute states that the court may make an order “for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just” ( s. 15.1(4) ). There is no restriction, for example, as to the date from which the court may order an award of child support to take effect and it is, therefore, open to a judge to enforce obligations that predated an order for support.

Similarly, in the Marital Property Act , in making a division of marital assets and debts, a judge is permitted to “make such other orders or directions as are ancillary thereto” (s. 10). The judge’s declaration that the order is effective April 14, 2011 can only refer to the enforcement of corollary relief. [ 14 ] For these reasons, I would dismiss the motion. As the panel indicated at the hearing, the respondent's failure to comply with the Rules of Court in countering the motion warrants a derogation from the “costs follow the event” principle.

I would accordingly order the parties bear their own costs of the motion.

____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ____________________________________ J. ERNEST DRAPEAU CHIEF JUSTICE OF NEW BRUNSWICK _____________________________________ KATHLEEN A. QUIGG, J.A.