Boryskiewich v. Stuart, 2014 MBCA 77

Citation: Boryskiewich v. Stuart, 2014 MBCA 77 Date: 20140821 Docket: AF 14-30-08131 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) K. L. WebbDEREK STEPHEN BORYSKIEWICH ) for the Appellant ) (Petitioner) Respondent ) B. R. Murray ) for the Respondent- and - ) ) Chambers motion heard andTARA STUART ) Decision pronounced: ) August 14, 2014 (Respondent) Appellant ) ) Written reasons: ) August 21, 2014 CHARTIER C.J.M. [1] The mother moved to extend the time to perfect her appeal. I granted the motion and gave her until September 4,2014, to do so. I also promised reasons would follow.

These are those reasons. [2] On January 11, 2010, a consent final order was entered into, giving the mother primary care and control over the onechild of the union. On March 28, 2013, the father filed a motion to prevent the child from being relocated from Brandon. He alsomoved for primary care and control. On November 21, 2013, the trial judge delivered his reasons and granted the father’s motion. Heprohibited the relocation of the child to Dauphin and ordered that the father have primary care and control of the child. That judgmentwas filed on February 12, 2014. [3] Pursuant to the Court of Appeal Rules, Man.

Reg. 555/88R, the mother had 30 days from the time of filing thejudgment to file and serve her notice of appeal (see Rule 11(1)). Although the mother was represented by counsel at trial, shecommenced the appeal without counsel. She filed a notice of appeal on March 11, 2014, which was within the above-mentioned 30-dayperiod. The mother then caused the transcripts to be ordered. The transcripts were filed on April 11, 2014.

As stipulated in our Rules,the mother then had 45 days or until May 26, 2014, to file her appeal book and factum. [4] Notice of the May 26, 2014 deadline was sent to the mother by regular mail on April 11, 2014. As the mother did notfile her appeal book and factum within the time limit set out in the Rules, a 30-day notice of deemed abandonment was sent to her onJune 25, 2014. That notice gave her until July 25, 2014, to file a notice of motion to request an extension of time to perfect the appeal.

That deadline was met when recently-retained counsel for the mother filed a notice of motion with a supporting affidavit on July 25,2014. [5] The father opposed the motion to extend the time to perfect the appeal. [6] The criteria for granting an extension of time to perfect an appeal involving child custody proceedings was explainedby my colleague Steel J.A. in A.S.C. v.

S.C., 2011 MBCA 70, 268 Man.R. (2d) 282, where she said (at paras. 4-5, 9-10): The law governing the extension of time to perfect an appeal or serve a notice of appeal is the same as the law applicable to seeking anextension of time to file an appeal. See Branum v. Branum (1998), (MB CA), 129 Man.R. (2d) 142; 180 W.A.C.142 (C.A.), at para. 9, Twaddle, J.A., (in Chambers). The criteria are well known. Applicants must demonstrate that: 1) there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2) there is a reasonable explanation for the delay;

3) there are arguable grounds of appeal; and 4) any prejudice suffered by the other party can be addressed. See Zalizniak v. Zalizniak (2006), 2006 MBCA 161 , 212 Man.R. (2d) 114; 389 W.A.C. 114; 2006 MBCA 161 (in Chambers),and Bohemier et al. v. CIBC Mortgages Inc. (2001), 2001 MBCA 161 , 160 Man.R. (2d) 39; 262 W.A.C. 39; 2001 MBCA161. Even if not all the criteria are satisfied, the court may still grant the extension if it is right and just in all of the circumstances. SeeHunter v. Hunter (2000), 2000 MBCA 134 , 150 Man.R. (2d) 291; 230 W.A.C. 291; 2000 MBCA 134 (in Chambers).

In many civil cases, extensions of time are often granted quite readily, especially where the party seeking the extension was notrepresented by counsel and the delay is not significant or prejudicial. However, in cases involving children, there are some specialconcerns. The question of arguable grounds should be considered within the context of the best interests of the child, a paramount consideration incustody disputes. Delay and uncertainty are of particular concern in child custody proceedings where an expeditious resolution andfinality are in the child’s best interests.

Such a consideration is no different than considering whether prejudice would result to the otherparty, except here, that party is not the opposing party, but the child involved in the case. See Armstrong v. Armstrong (2006), 2006ABCA 228 , 391 A.R. 48; 377 W.A.C. 48; (ON CA), 30 R.F.L. (6th) 279; 2006 ABCA 228, at paras. 40-41(in Chambers) and Hart v. Hart (1997), (BC CA), 92 B.C.A.C. 158; 150 W.A.C. 158 (C.A.), at para. 9 (inChambers). [7] In the present case, the father agreed that the mother had a continuous intention to appeal and that she has areasonable explanation for the delay.

The explanation was that, because there were other matters continuing in the Court of Queen’sBench relating to child support and cost issues, the at-the-time unrepresented mother thought that these related matters had to becompleted before continuing on with her appeal. [8] This leaves the criteria pertaining to whether the appeal has arguable grounds and a consideration of any prejudicewhich may be suffered by the child involved in this custody dispute. [9] I turn first to the issue of arguable grounds. The Supreme Court of Canada recently explained in Sattva Capital Corp.v.

Creston Moly Corp., 2014 SCC 53, what is meant by the test of merit with respect to arguable grounds (see paras. 72-75). Rothstein J.stated that the test will be met where the ground of appeal cannot be dismissed after a preliminary examination of the grounds. Hereminded judges that, at the motion-court stage, while some preliminary consideration of the grounds of appeal and the likely applicablestandard of review are “necessary to determine whether the appeal has the potential to succeed and thus to change the result” (at para.72), it is not appropriate to consider the full merits of a case.

He also added that the “decision-maker is not required to refer to all thearguments, provisions or jurisprudence or to make specific findings on each constituent element” (at para. 75) of each ground underconsideration or “to engage in extensive arguments or analysis about the standard of review” (ibid.).

Simply put, only some preliminaryconsideration of the grounds and some preliminary assessment of the standard of review are necessary when the arguable merits of thegrounds are being considered by the chambers judge. [10] The standard of review with respect to child custody appeals is that an appellate court should not disturb the trialjudgment in the absence of a material error, a serious misapprehension of the evidence or an error of law (see Van de Perre v.

Edwards,2001 SCC 60, [2001] 2 S.C.R. 1014). [11] In this case, the mother argued that the trial judge erred, first, by failing to find a material change that warranted avariation in custody and, second, by seriously misapprehending the evidence. The father responded by stating that it was clear from thefacts that there had been a material change with the mother’s move to Dauphin.

On my preliminary examination of the arguable groundscriterion, I accept the mother’s position that the appeal has the potential to succeed because the trial judge, first, may have focussed onlyon problematic issues surrounding the mother’s life without showing the same attentiveness with respect to the father’s life and, second,may not have properly considered the option of the mother’s return to Brandon to care for the child. [12] On the prejudice issue, the mother stated that there was no evidence of prejudice.

She pointed out that the child waspresently in the father’s care and that the mother had now moved back to Brandon from Dauphin. The father argued that allowing theappeal to proceed might result in the child being returned to the mother. This, he said, would cause the child to suffer prejudice becauseanother change in residence would bring about further disruption in the child’s life.

Basically, he argued that the child deserved finality. [13] While there can be no doubt that an expeditious resolution of a child custody proceeding and finality are in the child’sbest interest, a parent’s right to appeal a trial judge’s decision cannot be disregarded. The at-the-time unrepresented mother had an

unrestricted right to appeal the decision of the trial judge but for having missed the May 26, 2014 deadline (see s. 89 of The Court of Queen’s Bench Act , C.C.S.M., c. C280). This is not a situation where the mother had to first obtain leave to appeal before filing her notice of appeal. The mother has satisfied me that, in the circumstances of this case, she has met the concern relating to prejudice. [ 14 ] The decision to grant an extension of time to perfect an appeal involves weighing all of the above-mentioned criteria.

I believe that allowing a short period of time to perfect her appeal is right and just in all of the circumstances. In the end, and in light of the mother’s continuous intention to appeal and her reasonable explanation for the delay, the inescapable truth of the matter is that, had the mother been able to retain counsel to file the appeal, she would have been able to exercise her unrestricted right of appeal. [ 15 ] For these reasons, I extended the time to perfect the appeal to September 4, 2014. If costs cannot be agreed upon, counsel may speak to the issue. C.J.M.