J.F. v. T. P. S., 2011 NLCA 70

Date: 20111028 Docket: 11/68 Citation: J.F. v. T. P. S., 2011 NLCA 70 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : J.F. APPELLANT AND : T.P.S. FIRST REPONDENT AND : DIRECTOR OF CHILD, YOUTH AND FAMILY SERVICES SECOND RESPONDENT Coram: Green, C.J.N.L., White and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200502U0822 Application Heard: October 18 and 20, 2011 Judgment Rendered: October 28, 2011 Reasons for Judgment by Green, C.J.N.L. Concurred in by: White and Hoegg, JJ.A. Counsel for the Appellant: Averill Baker Counsel for the First Respondent: Bob Buckingham Counsel for the Second Respondent: Cynthia Janes

Green, C.J.N.L.: [ 1 ] The appellant, J.F., and the second respondent, Director of Child, Youth and Family Services (“Director”) applied to re- instate a notice of appeal and notice of cross-appeal, respectively, both of which had been deemed abandoned under rule 57.20(4) of the Rules of the Supreme Court, 1986, because of the passage of over 12 months since the last step taken in the appeal. The Appeal [ 2 ] The appeal and cross-appeal relate to a decision of a Family Division judge awarding custody of a (then) three and a half year old child to his biological father, the first respondent.

The child was apprehended at birth by the Director and the court subsequently made a temporary care order in favour of the Director. The father applied for custody of the child. The mother opposed the application and sought sole custody herself. The Director placed the child in the care of the father’s parents, allowing the father unsupervised access.

Subsequently, the court ordered the child remain in the care of his paternal grandparents with the father having only supervised access. [ 3 ] After a lengthy trial, the Family Division judge awarded custody of the child jointly in favour of the father and the child’s paternal grandmother, even though the grandmother was not a party to the proceeding. The father’s parenting role was made subject to a number of conditions including counseling, parent coaching and reporting. The mother was allowed “closely supervised” access to the child.

The Director was ordered to “monitor the child and the family environment” until the child turned five years old and started to attend school, with supervision thereafter potentially reducing until the child reached the age of eight or in some cases, twelve. [ 4 ] The mother appealed the order, seeking a new custody hearing or alternatively that sole custody be granted to her. Among other grounds, she submits that the trial judge misapprehended the evidence and failed to properly take account of and deal with the fact that the father was a convicted sex offender.

She also submits the trial judge erred in her treatment of the expert evidence at trial. [ 5 ] The Director cross-appealed, arguing that the trial judge erred in law in making the type of supervision order she did. The Director submits the judge had no legal authority to make such an order without the Director’s consent. [ 6 ] The reasons for decision filed by the trial judge were released on June 3, 2009. The notice of appeal was filed on June 15, 2009 and the cross-appeal was filed on July 16. The transcript was prepared and delivered in the month of October 2009.

The mother filed her factum on August 12, 2010 but did not file an appeal book. The Director and the father have still not filed a factum. No other steps to move the appeal forward have been taken. [ 7 ] Both the appeal and the cross-appeal were deemed abandoned by notice issued by the Deputy Registrar on August 16, 2011.

The Applications to Re-instate [ 8 ] The mother’s application to re-instate her appeal claims that: there is merit in her appeal; she has always had and continues to have an intent to appeal; she has a reasonable excuse for not proceeding more expeditiously; she acted in a timely manner in applying for re-instatement; and there will be no prejudice to any other party if re-instatement were to be granted.

Both the Director and the father oppose the re-instatement. [ 9 ] The Director’s application for re-instatement is based on the assertion that the issue on the cross-appeal is “a straightforward and singular legal issue” that has importance beyond the scope of this particular case, because it involves the rationalization of the interplay between provisions of the Children’s Law Act , RSNL, 1990, c.C-13 and the Child, Youth and Family Services Act , SNL 1998, c. C-12.1 It will have little impact on the other parties or the child. The Director submits that delay on her

part is related to the delay by the mother as appellant, since the Director was dependent on the appellant to prepare the appeal book, a document that was required before the Director could prepare her factum in response to the appellant’s case on appeal. Neither the mother nor the father opposes the Director’s application. Applicable Principles [ 10 ] Rule 57.20(8) allows the Court to re-instate an appeal that has been deemed abandoned “on such terms as the Court deems just”.

The basis upon which this power will be exercised has been determined to be “whether, considering the merits of the case and all other relevant matters, it is in the interest of justice that the appeal be re-instated or left [abandoned]”: Fahey v. Law Society of Newfoundland , 2003 NLCA 8 at para. 13 . [ 11 ] In considering the justice of the case the Court will consider a non-exhaustive list of factors: (

i) whether there is an arguable case on the appeal; (ii) whether, prior to the abandonment, the appellant had a bona fide intention to proceed with the appeal; (iii) whether the appellant has a reasonable excuse for the failure to proceed with the appeal; (iv) whether the appellant acted in a timely manner in applying for re-instatement upon becoming aware of the deemed abandonment; and (

v) the presence of any exceptional or special circumstances, including prejudice to a party, justifying or working against the fairness of re-instatement: Stacey v. Stacey and Chafe , 2009 NLCA 50 , interpreting the Fahey case. See also, Warren v. Warren , 2010 NLCA 25 and Canada Bay Lumber Company Limited v.

Business Investment Corporation , 2009 NLCA 53 . [ 12 ] The theme running through the jurisprudence in this Court relating to re-instatement issues is that the Court should attempt to achieve “procedural fairness to and between the parties” ( Fahey , para. 8 ) and that because deemed abandonment results from administrative action rather than judicial determination, a “low threshold” in respect of “any factor that did not involve prejudice to another party” or “did not include demonstrably deliberate delaying tactics by the applicant” would be indicated ( Fahey , para. 14 ).

Where, on the other hand, injustice to a party would result from re-instatement, the threshold should be much higher and could well be insurmountable. [ 13 ] Normally, prejudice is considered from the point of view of the impact on the parties to the litigation. In family cases, however,

the notion of prejudice must be expanded to include the impact on any third parties, especially children involved in the case. In N.G. v.R.E. (2010), 2010 NLCA 56 , 300 Nfld. & P.E.I.R. 267 (NLCA), a case concerning whether an application to the Chief Justiceunder rule 57.31(4) to have a case decided by a single judge of the Court reheard by a panel of three judges, I noted that the test whichhad been formulated in previous litigation involved consideration of “the interests of all parties to the litigation” [italics added].

As thecase under consideration was a child custody dispute, I observed: [10] … In the context of a family law dispute involving child custody – as in the current case – the considerations … should be modifiedto recognize that it is not only the interests of the parties to the dispute that should be considered but also the interests of the child whomay be the subject of the dispute. In fact, it could be said that inasmuch as the interests of litigating parents are subordinated to the bestinterests of the child in a custody dispute, the interests of the child should be the paramount consideration in such a case.

See also, L.T. v. Director of Child, Youth and Family Services (No. 2), 2011 NLCA 1 where, on an application to extend time for filing anotice of appeal, in which many of the Fahey factors, including “the presence of any exceptional or special circumstances justifying orworking against the fairness of the extension” are also applicable, I stated, in relation to that factor: [6] … one of the matters to be considered is the possibility of prejudice – and its relative extent - to the parties if the extension weregranted or denied.

In cases involving the welfare of children, it is worth noting that the focus on “special circumstances” means that it isnot only prejudice to the interests of the actual parties to the litigation that must be considered but also the potential prejudice to andinterests of children affected by the decision that must be weighed in the balance. [14] I would adopt the foregoing statements of principle and apply them in the context of an application for re-instatement of anotice of appeal when considering the balancing of all applicable factors in determining the justice of the case, especially whether issuesof prejudice are relevant in balancing the interests involved.

General Observations [15] Before proceeding to a consideration of the specific Fahey factors, I am compelled to make a general observation about theway in which this case has been handled and dealt with. Cases involving child custody or child protection merit special attention in thecourt system. By their very nature family relationships are dynamic. Life does not grind to a halt just because an appeal is filed in theCourt.

An appeal that takes an inordinate amount of time to process, no matter how it ultimately turns out, may not be in accord with thereality of the current situation, which may have taken a different turn since the trial. In fact, an appellate decision that no longer reflectsthe reality on the ground, so to speak, and disrupts newly developed relationships and conditions, may be productive of considerableinjustice.

Even where circumstances have not changed significantly since the time of the original decision, existing relationships mayhave become more solidified and greater bonding may have occurred so that a delayed appeal, if successful, may have a greater impacton disrupting those relationships than otherwise.

The longer it takes, therefore, for an appeal in a case involving a child to be heard anddecided, the greater is the likelihood that it may no longer be of benefit to the parties or the child involved. [16] Accordingly, there is a duty on all participants in the system to be vigilant to ensure that no delays, except those that areabsolutely necessary, occur in processing an appeal involving a child. Counsel are to be expected to go out of their way to take steps tomove the case forward.

If it means that, to obtain a transcript in a long trial quickly, transcribers must be engaged to work overtime or ondouble shift, so be it. If it means that steps should be taken to pare down the preparation of the appeal book so that it only contains thedocuments and exhibits necessary to process the appeal, instead of all documents used at trial, so be it. If it means that counsel mustdecide their case handling priorities so that the cases involving children are always dealt with first, so be it.

If counsel cannot dischargethese responsibilities adequately, they should find other counsel who can and, after fully briefing them, retire from the case. [17] I will now turn to a consideration of the Fahey factors. Analysis of Factors (

i) Merits of the Appeal [18] Although it cannot be said that the grounds of appeal are frivolous or without merit, they are not without their challenges. Thethrust of the appeal is to challenge the trial judge’s assessment of the evidence and the result achieved.

Counsel for the mother candidlyconceded that “it may be slightly unrealistic to envisage a complete reversal of custody” and suggested instead the main concern wasensuring continuing contact between the child and the mother. [19] As to the cross-appeal, there is only one point to be argued: that the judge erred in law in ordering the Director to monitor theparenting of the father for a period of time longer than the Director had consented to do when giving her consent to be involved in themonitoring under s. 40 of the Children’s Law Act.

The issue is whether, as the judge accepted, the parens patriae jurisdiction of thecourt allowed the court to override the temporal limits placed on the Director’s consent and to order a longer monitoring period, andwhether s. 40 itself allows the Director, when giving consent, to place temporal limits on it at all. I agree that this is a legitimate issue toraise in an appropriate appellate case. Indeed, it appears that at the trial level views different from those expressed by the trial judge inthis case have been advanced. See Newfoundland & Labrador (Director of Child, Youth & Family Services) v.

R. (G.), 2009 NLUFC 35. [20] That said, it cannot be said that, from a reading of s. 40 the trial judge is clearly in error.

Section 40 could be made the subjectof differing

interpretations, including the one adopted by the trial judge to the effect that, once the Director has given her consent inprinciple to monitoring, it is up to the judge to tailor the conditions of the monitoring to suit the circumstances of the particular case,rather than to be hamstrung by a priori limitations dictated by the Director. [21] Counsel for the Director submitted that the legitimacy of the cross-appeal issue and the importance of resolving the point forfuture cases were strong arguments for re-instatement. [22] Neither the mother nor the father took any position with respect to the Director’s appeal or its possible re-instatement.

It islikely, therefore, that if the Director’s cross-appeal were to be re-instated there would not likely be a strong (if any) contrary position

argued. It is obviously better for a controversial point to be resolved in the context of a true lis . [ 23 ] It is also appropriate to observe at this point that the inquiry into the merits of the appeal does not stop once it is determined that there is some discernible merit disclosed. While it is true that an appeal that is regarded as frivolous or without merit should not be re-instated, it does not follow that if the merits meet the minimum threshold, the appeal should automatically be heard.

The court’s perception of the strength of the appeal is still relevant in the balancing exercise that has to be undertaken after all the factors have been analyzed. As I observed in L.T. v.

Director of Child, Youth and Family Services (No. 2) , in an application to extend time for appealing, where the factors to be considered are essentially the same: [21] It is important to appreciate that the existence of potential merit, and the degree of its potential strength, is a “factor” to be considered and balanced against the other considerations in the case; it is not a hurdle of a fixed height which, if cleared, will render its further consideration unnecessary in the determination of whether there ought to be an extension.

The stronger the apparent merit of the case, the greater effect it may have in assessing the other considerations in the case; conversely, the weaker the apparent merit, the more likely it may be for other factors to be determinative. [ 24 ] We must therefore come back to the issue of appeal merits again later in the analysis. (ii) Intention to Appeal [ 25 ] Little evidence that an intention to appeal continued during the year of inactivity was presented either by the mother or the Director. [ 26 ] Counsel for the mother, speaking as an officer of the court, assured the court that during this time her client in fact made numerous contacts with her office to inquire as to the progress of the appeal.

She also pointed to two letters written by her in October, 2010, one to the Family Division relating to exhibits and one to the Newfoundland and Labrador Legal Aid Commission concerning completion of the factum, as indicating that she was moving forward with the appeal. [ 27 ] With respect to the Director’s continuing intention to cross-appeal, counsel referred to contact made by her with counsel for the mother, in early September, 2010 to inquire about the status of the appeal book.

She also received a telephone call from counsel for the mother in mid-October, 2010 regarding counsel’s request to the Family Division for copies of exhibits.

Counsel for the Director essentially relies on her assertion that it was agreed with counsel for the mother that she would not be expected to file her factum until after the appeal book was filed, as explaining the lack of any further action on her part that could be taken as indicative of a continuing intention to appeal. [ 28 ] After a “quick passing reference” to the case when counsel met in Provincial Court on another matter in early 2011, to the effect that counsel for the mother was still working on preparing the appeal book, the record falls silent.

Approximately six months later, the appeal and cross-appeal were deemed abandoned. [ 29 ] While the degree of inactivity in this case in the last six months prior to deemed abandonment comes close to a situation where one might be able to infer an intention to abandon the appeal, I am not prepared to reject the applications for re-instatement on this basis alone.

The degree of procedural inattention is nevertheless a consideration to be taken into account in balancing all factors in the determination as to whether it is “just” to re-instate. (iii) Reasonable Excuse for delay [ 30 ] In this case there appears to have been an almost cavalier attitude taken toward the processing of this appeal on a timely basis. It has now been two and a half years since the delivery of the trial decision and the appeal is still not perfected. After the preparation of the transcript in October 2009, it took counsel for the appellant 10 months to prepare and file a factum.

Both the Director and the father have yet to file their facta. [ 31 ] I recognize, of course, the difficulty busy counsel, especially a sole practitioner, may have in trying to “fit in” time among other court appearances, research and office consultations to engage in the type of reflection and analysis that is often necessary to digest a lengthy trial transcript and voluminous trial exhibits before composing a well-crafted written legal argument. Counsel for the mother candidly acknowledged to the Court that “these things tend to be put at the bottom of the list”.

But, it is that very notion of “fitting in” the case that presents the type of danger, resulting in delay, to which I have earlier referred. In this case, counsel for the mother was counsel at trial. This is not a case, therefore, where a significant portion of time had to be taken by newly-appointed appellate counsel to review and familiarize herself with the file. [ 32 ] Curiously, the appellant has not filed an appeal book. Counsel claims that because she “did not think it was necessary to make reference to any trial exhibits”, she “chose not to file the appeal book unless absolutely necessary”.

Of course, an appeal book contains more than the transcript and the exhibits. It contains the pleadings and all other documents pertaining to the trial that give structure to the case and enable the appeal court to comprehend what occurred. Rule 57.14 requires an appellant to file an appeal book unless the court, by order, dispenses with its filing or the parties by agreement, or the court by order permits them to, file an abridged book.

Where an appellant is of the view that an appeal book is not required or should be abridged, counsel should engage opposing counsel in discussion at an early date to attempt to resolve those issues and if agreement cannot be reached, seek directions from the court.

The decision cannot be unilaterally reached by appellant’s counsel alone. [ 33 ] Counsel deposes that when she ultimately determined that counsel for the Director did not agree with dispensing with the filing of an appeal book (at the point where she made inquiries as why the Director had not filed a factum), she requested the Family Division to provide copies of all exhibits from the trial but that delays were experienced in their responding to this request.

Counsel for the Director says, however, that she offered to provide copies of the exhibits she had to counsel for the mother to facilitate the preparation of the appeal book. Counsel for the appellant did not accept this offer. Nothing has been indicated as to why delays were experienced at the

court and that attempts were made to press the court, through contact with the court staff, to expedite the process. Nor is there anyindication that any attempt was made by all three counsel to attempt to reach agreement on filing an abridged appeal book. [34] In any event, counsel for the appellant was able to obtain copies of all trial exhibits by November 17, 2010. The appeal bookwas still not filed by the time the appeal was deemed abandoned on August 16, 2011.

Ironically, an appeal book of sorts (but notcontaining all of the trial exhibits nor the trial pleadings) was submitted for filing within days of the appeal having been deemedabandoned. No satisfactory explanation has been furnished for this further delay. [35] Counsel for the mother submitted that because the definition of “appeal” in rule 57.01(

a) includes a cross-appeal, there is anequal obligation, in cases involving a cross-appeal, for a cross-appellant to file an appeal book. She cited Langer v. Yorkton SecuritiesInc. (1986), (ON CA), 57 O.R. (2d) 555 (C.A.) and Dallas v. Dallas (1964), (BC CA), 50 W.W.R.570 (B.C.C.A.) in support of the proposition that the cross-appellant “may be the person expected to prepare and file exhibits”.

Thosecases, however, recognized that the “general position” (Langer, para. 10) should be, or “in the absence of special circumstances” (Dallas, para. 10), that one appeal book that includes material relevant to both the appeal and cross-appeal should be filed and while the partiescould make other arrangements, that would require agreement between them. I agree with this approach. [36] In this case, however, there was little or nothing, relative to the cross-appeal, that would have to go into an appeal book beyondwhat would be included in relation to the main appeal.

There was, in any event, no agreement among the three parties to depart from thegeneral expected practice in this case, except in relation to preparation of the transcript, which counsel for the Director undertook toarrange.

With the exception of the offer of counsel for the Director to make copies of certain exhibit material available to counsel for themother relative to preparation of the appeal book, there is very little evidence of any attempt by the parties at adopting a cooperativeapproach to having the appeal brought forward for hearing. [37] The explanation of the mother for the delay in this case is therefore not acceptable. [38] I also consider counsel for the Director’s explanation for her delay in proceeding with her cross-appeal unacceptable.

She saysthat she was waiting for counsel for the mother to file her factum and the appeal-book before proceeding. She says, in fact that there wasagreement with counsel for the mother (but apparently not the father) that she would not have to file her factum until the appeal book wasfiled. The reality, however, is that because the cross-appeal is on a narrow point of law, there was little or no need for having access tothe exhibits and transcript of the evidence to enable the cross-appeal factum to be prepared.

As well, it is not clear why the Director (asopposed to the father) would want to, in effect, take the lead in responding to the appeal, since the case related to a private custodydispute between father and mother. Regardless of whether the main appeal proceeded, I understand the position of the Director to be thatshe wishes the legal issue relating to the

interpretation of s. 40 to be resolved in the interests of clarifying the law for future cases. In sucha circumstance it does not make sense to stand by and allow the cross-appeal to lapse simply because of inaction on the part of otherparties in relation to matters that do not affect the cross-appeal. [39] The Director cannot hide behind delays and inaction by opposing parties as an explanation for not acting if there are things shecan do to move the case forward.

As I have noted above, all counsel must be proactive in an appeal involving children. (iv) Timeliness of Application for Re-instatement [40] The mother’s application for re-instatement was filed on August 16, 2011, fourteen days after the appeal was deemedabandoned. The Director did not make any formal application for re-instatement until October 3, 2011 when she filed a response to themother’s application. [41] While not opposing the Director’s application, the father nevertheless submits that the mother could have acted sooner and thatthe application is not therefore timely.

I am not prepared to give any weight to this submission. While undoubtedly the application, in aperfect world, might have been filed with more alacrity, it was not so inordinately tardy as to be indicative of a lack of interest inproceeding with the appeal. [42] The Director’s delay in making her application for re-instatement is more significant. It hardly comports with the Director’ssubmission that the legal point raised in the cross-appeal is of importance and needs to be resolved for the benefit of guidance in futurecases.

The delay in this respect is therefore a factor to be considered in the ultimate disposition. (

v) Special or Exceptional Circumstances [43] The special circumstance to be considered in this case is the impact of these events on the child who is the subject of thedispute. As noted, the child was apprehended from the mother at birth. The Director, after obtaining a temporary care order from thecourt, placed the child with the father’s parents. As a result, the child has had contact with the father.

The mother had sporadic andirregular access to the child up to and including the time of trial. [44] Since the filing of the trial judgment in June of 2009, the mother has had no contact with the child at all despite the fact that thejudgment specifically contemplated supervised access on a weekly basis. This is not entirely the fault of the mother. [45] The Court was informed by counsel that a disagreement arose between counsel for the Director and counsel for the mother asto the meaning and effect of the trial judge’s order.

It provided that the access was to be “closely supervised” and was to occur “at aplace to be determined by the Director”. It also provided that decisions as to variation of the access

schedule were to be made “inconsultation with the Director” and that the mother “during access visits, shall comply with any direction(

s) given to her by the Directoror her agents” to effect compliance with the arrangements made for access. [46] The Director, on the advice of counsel, took the position that she was not required to supervise the access visits. Counsel basedthis position on the fact that the access being exercised was access that arose out of a private custody/access dispute and not out of a childprotection proceeding where the Director had care of the child. In private custody/access disputes, she submitted, the Director had no roleto play in supervising access. The parties would be expected to work out the access arrangements themselves and to agree on supervision

by some mutually acceptable person, paying that person if necessary. She pointed out that in a private custody/access dispute, s. 40 of the Children’s Law Act only enables the court to require the Director to engage in supervision if the Director’s consent is first obtained, and that had not happened in this case. Counsel advised the Court that she was “confident” in her

interpretation of the order and that if she felt there was any realistic possibility of the order stipulating differently, she would have cross-appealed on that point also. [ 47 ] Counsel for the mother took the opposite view and asserted in several exchanges that the Director did have an obligation to arrange the visits and to supervise them. She threatened a contempt application. The Director did not change her position. [ 48 ] Given that the judge’s order stipulated that the location of the visits had to be determined by the Director; that variation in the access

schedule involved consultation with the Director; and that the mother was required to comply with directions from the Director or her agents “during access visits”, it cannot be said that the position taken by the mother’s counsel was a completely unreasonable one. I say this, not to suggest that I necessarily agree with that

interpretation but simply to indicate that it is not outside a range of reasonably defensible positions. None of the parties apparently considered it appropriate to try to resolve the issue by seeking directions from the court, even though the trial judge expressly stipulated in her judgment that the parties “including the Director of Child, Youth and Family services” could apply for further directions in respect of the order she made. [ 49 ] Regardless of whose

interpretation is correct, however, the fact remains that the result of this unresolved dispute was that the child has not seen his mother for nearly two and a half years. The spirit and intent of the judge’s order, that the mother have weekly supervised access, has been completely frustrated, indeed, subverted. A custody/access regime ordered by a judge is usually intended to operate as an integrated, interdependent whole.

When it is not followed in its entirety, the complete parenting package contemplated by the court does not achieve its intended purpose and the result may, in fact, be counterproductive to the interests of the child. [ 50 ] Access is the right of the child. Parents and others in his life should be expected to facilitate it. The tragedy of this case is that in the middle of the acrimony of a mother-father custody dispute and a debate over legal

interpretation, the interests of the child, as contemplated by the court order, appear to have been forgotten. The simple expedient of applying for directions was not taken. Nor was any attempt made by the parents to work out access arrangements. [ 51 ] The fact remains, however, that the mother and her child have had little or no opportunity to bond in the six years of his life. The situation presented on this appeal, if were to be re-instated, would be entirely different from what was contemplated by the judge, in terms of mother-child contact, at the time of giving judgment.

If the mother were to be successful on the appeal, it would be highly unlikely, given the intervening events, that an order would be made awarding custody to her without a careful up-to-date assessment of the current parental relationships. If, on the other hand, the father’s custody were set aside and a new trial ordered, the whole case would have to be re-litigated taking into account events that have occurred post-trial. [ 52 ] The Court was told by counsel that the child appears to be doing well with the current custodial arrangement involving the father and grandmother, with monitoring by the Director.

Counsel for the Director assured the Court that, notwithstanding the concerns expressed by the trial judge about the father’s past history, there have been no incidents involving the father since the trial that have caused the Director any concern. The appeal, if re-instated and ultimately successful, could only have the effect of creating a severe disruption in the child’s life, which at the moment appears to be stable.

To the extent that the events post-trial and the mother’s current situation should be taken into account in relation to the future of the child, the mother still has the right to re-apply to the Family Division to settle access and, upon showing a material change in circumstances, even to vary custody.

If she truly believes it would be in the child’s best interests that he have meaningful access to her, I would encourage her, at the very least, to have the access relationship defined for the future. [ 53 ] The current situation involving this child must be of major concern in deciding whether to re-instate the mother’s appeal. (vi) Balancing the Factors [ 54 ] Our appellate system operates on the basis that a litigant who files an appeal within the stipulated appeal period and actively works toward perfecting the appeal is entitled as of right to have that appeal heard and determined regardless of any weakness in the merits of the appeal (subject, of course, to a possible interlocutory application to strike out the appeal on the grounds that it is frivolous). [ 55 ] This right may be lost, however, when the appellant does not take steps to continue the appeal on a timely basis.

In such circumstances, the appeal will be deemed to be abandoned in accordance with rule 57.20. Once deemed abandonment occurs, the appellant no longer has a right to access the appellate system. He is in essentially the same position as a person who has missed the appeal period and is seeking an extension of time to file a notice of appeal. He or she has the burden of convincing the Court that it is “just” to be allowed to proceed.

That involves a consideration and balancing of the Fahey factors that are relevant to the justice of the case. [ 56 ] In this case, with respect to the mother’s application, when the acknowledged weaknesses in her appeal, coupled with the degree of unexplained inactivity on the file are considered against the potential impact on the child if the appeal were re-instated and allowed, it does not appear just to re-instate the appeal.

Any proper determination of the future parenting arrangements of this child cannot depend, at this juncture, solely on the results of this appeal but must also take account of the child’s current situation. That is better dealt with by appropriate applications to the Family Division where the current circumstances can be properly assessed.

I would therefore deny the mother’s application to re-instate. [ 57 ] As to the Director’s application, I acknowledge that there is certainly an arguable issue to be dealt with on the appeal and that resolution of the issue posed might be of benefit as guidance for future cases.

Nevertheless, given the apparent lack of interest on the part of the mother and father in addressing this point, I am not convinced that the current case provides a proper venue for full consideration of the issues that are engaged. [ 58 ] When coupled with the Director’s failure to move the cross-appeal forward on a timely basis to have the issue she is concerned about resolved and the lack of much of an indication of a continuing intent to appeal, I am not satisfied that she has met the burden of satisfying the Court that it is just to allow the cross-appeal to move forward.

When the end of the one-year deemed abandonment grace

period was approaching, the Director could, and should, have moved to file her cross-appeal factum regardless of any prior understanding counsel may have had about filing a response to the appellant’s factum and the cross-appeal factum together. The cross- appeal was on a discrete issue and was not dependent in any way on what happened to the main appeal. That simple expedient of filing would have preserved the cross-appeal.

Failure to make an application to re-instate for almost two months after deemed abandonment and almost five weeks after the mother had made her application for re-instatement is indicative, at most, of only a tepid interest in having the issue resolved at this time. Disposition [ 59 ] I would dismiss the applications for re-instatement of the appeal and cross-appeal, respectively. [ 60 ] I would make no order as to costs. J. D. Green, C.J.N.L. I concur: C. W. White, J.A. I concur: L. R. Hoegg, J.A.