Bungay v. Bungay, 2012 NLCA 63

Date: 20121002 Docket: 12/42 Citation: Bungay v. Bungay , 2012 NLCA 63 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: DELAVAN BUNGAY INTENDED APPELLANT AND: BRENDA BUNGAY INTENDED RESPONDENT Coram: White J.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 200905T0136 Application Heard: September 25, 2012 Decision Rendered: October 2, 2012 Counsel for Intended Appellant: Self-Represented Counsel for the Intended Respondent: Joseph S. Twyne

White J.A.: [ 1 ] This is an application pursuant to Rule 57.05 by the intended appellant, Delavan Bungay, for an extension of time to file his appeal. Mr. Bungay filed an Interlocutory Application (“Application”) with this Court applying for an order that: “cancels alimony, refund alimony paid, receive payment for car, pay expenses for house, repay $14,400 for rent, refund my $12,000, pay $40,000 for court costs, refund $4,500 support paid for my son”.

BACKGROUND [ 2 ] A five-day trial was completed before a judge of the Unified Family Court (“UFC”) on November 15, 2011, at which time the UFC judge gave an oral decision. His decision is unreported. No transcript of the trial has been prepared. [ 3 ] An Order After Judgment (“Order”) was filed on March 21, 2012.

The Order grants the divorce and also orders joint custody of an adult disabled child, access, no child support arrears, disposition of contents of the matrimonial home, transfer of an automobile, funds to be held in trust for expenses related to an adult disabled child, sale of real estate, a lump sum payment in relation to arrears of spousal support, and future spousal support. [ 4 ] At trial, Mr. Bungay and the intended respondent, Brenda Bungay, were represented by counsel. [ 5 ] Approximately four and one-half months elapsed between the date of the oral decision of the UFC judge and the filing of the Order.

Some two and one-half months elapsed between the filing of the Order and July 4, 2012 when Mr. Bungay filed the Application. [ 6 ] Counsel for Ms. Bungay and Mr. Bungay representing himself both acknowledged at the hearing that the Application would be dealt with as an application for an extension of time to file an appeal. ANALYSIS [ 7 ] The Divorce Act , RSC 1985, c. 3 (2nd Supp.) provides under

section 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.

(4) An appellate court or a judge thereof may, on special grounds, either before or after the expiration of the time fixed by subsection (3) for instituting an appeal, by order extend that time. [ 8 ] In Fitzgerald v.

Foote , 2003 NLCA 25 , 225 Nfld. & P.E.I.R. 64, Welsh J.A. determined that there was no inconsistency between the Divorce Act requirements and those of rule 57.05 of the Rules of the Supreme Court, 1986 which allows the Court to grant an extension where “in the opinion of the Court, refusal to do so would create an injustice”. [ 9 ] The four factors to be considered by the Court in formulating its opinion are set out in Fahey v.

Law Society of Newfoundland , 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 special or exceptional circumstances justifying or working against the fairness of the extension. - bona fide intention and reasonable excuse [ 10 ] As to the first two factors from Fahey, Mr. Bungay was represented by experienced counsel during a five-day trial.

He stated during his oral submission that he did not discuss a time limit to appeal with his counsel after hearing the decision of the UFC judge on November 15, 2011. Further, he put forward no excuse other than his statement that he did not discuss a time limit with his trial counsel. [ 11 ] I am unable to conclusively determine (from his written and oral submissions) whether or not Mr. Bungay was advised by his trial counsel relative to the appeal period, or was otherwise aware that there was a statutory requirement to commence an appeal within 30 days. I would note that during his oral submission Mr.

Bungay acknowledged that he has, on two occasions, been back to UFC seeking a variation of terms since the UFC judge’s oral decision in November of 2011. These applications took place in February 2012 and in May 2012. While I am not able to come to any conclusion with respect to the first two factors, it appears that Mr. Bungay has some familiarity with the provisions of the Divorce Act . - potential merits [ 12 ] As to the potential merits of the appeal, Mr. Bungay in his written and oral submissions refers to numerous findings of the trial judge.

All appear to be based on evidence before the UFC judge in a fully contested proceeding where both parties were represented by counsel. [ 13 ] In particular, in his oral submission, Mr. Bungay says the UFC judge made three errors of law: 1. He was not allowed to get legal aid.

2. Support was ordered for his son despite his son being over the legal age of majority. 3. Funds received by his wife were not properly considered. Mr. Bungay stated: “When [the UFC judge] made his November, 2011 order he knew Brenda received and spent thousands of dollars of government funding … the court must not allow her to order me to pay arrears to her after she had all this money over $80,000 and spent it …”. When asked by the Court if this matter was put before the UFC judge, Mr.

Bungay said that he told his lawyer that she shouldn’t be allowed the money “but he didn’t do his homework and actually go and find the right regulations to show it wasn’t supposed to happen”. [ 14 ] While not being aware of the reasons for Mr. Bungay being denied legal aid, this matter would not have been a matter for determination by the UFC judge and, therefore, could not be an error of law. [ 15 ] Support for a child of the marriage does not, in all circumstances, cease by operation of law when the child attains the age of majority. It was not disputed that Mr. Bungay’s son is disabled.

By virtue of the definition of “child of the marriage” under

section 2 of the Divorce Act , the UFC retains jurisdiction to make an order of support under section 15(1) of the Act. In ordering support for Mr. Bungay’s son, the UFC judge could not have erred on this basis. [ 16 ] The only one of these submissions which could possibly amount to an error of law is the third one. That said, it is clear from his written and oral argument that Mr. Bungay was fully involved in the trial and engaged with his counsel.

It would be speculation to conclude that an argument which might have affected quantum of support was not made (if it was not) or why, if made, it might have been rejected or otherwise dealt with by the UFC judge. Accordingly, I do not find that there is potential merit in this submission. - special or exceptional circumstances [ 17 ] As to the presence of any special or exceptional circumstances justifying the fairness of extending the time, Mr. Bungay did not suggest any other than by reviewing his present circumstances and emphasizing his dissatisfaction with the outcome of the trial.

The result of extending the time would be a hearing by a full panel of this Court. The factual determinations as set out by Mr. Bungay in the Application (and which the UFC judge dealt with in the Order) would be challenged by Mr. Bungay. If an extension were granted, Ms. Bungay, who also went through a five-day trial, would now be put through an appeal. The appeal would amount to nothing more than an airing of Mr. Bungay’s dissatisfaction with the factual findings and determinations of the UFC judge.

CONCLUSION [ 18 ] Considerable deference is to be given to a trial judge, particularly in family matters where the need for finality is significant. On the information before me I find no reason to conclude that there are potential merits to an appeal or that it would be anything more than an attempt to reargue those outcomes from trial with which Mr. Bungay is dissatisfied. Nor are there any special or exceptional circumstances justifying the fairness of the extension. I also note that Mr.

Bungay had been aware of the terms of the decision of the UFC judge for some six and one-half months prior to filing the Application with the Court. That he accessed UFC, representing himself, to seek a variation on two occasions gives some indication of familiarity with the provisions of the Divorce Act . DISPOSITION [ 19 ] I find no grounds for granting an extension of time to file a notice of appeal. The application pursuant to Rule 57.05 is dismissed. [ 20 ] The trial judge did not order costs. On this application counsel for Ms. Bungay seeks costs.

As I have not found any justification to extend the time, I award costs to Ms. Bungay on a party-and-party basis to be taxed on Column 3 of the Scale of Costs. _______________________ C.W. White J.A.