Delichte v Rogers, 2018 MBCA 79

Citation: Delichte v Rogers , 2018 MBCA 79 Date: 20180824 Docket: AF18-30-09072 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) K. L. Delichte karyn lynne delichte ) on her own behalf ) (Petitioner) Applicant ) K. L.

Desjardine ) for the Respondent - and - ) ) Chambers motion heard: brendan noel rogers ) August 2, 2018 ) (Respondent) Respondent ) Decision pronounced: ) August 24 , 2018 mainella JA Introduction [ 1 ] This chambers proceeding concerns the obligation to respect the principle of timeliness in commencing an appeal and the potential negative consequences for failing to do so. [ 2 ] In earlier Family Court proceedings between these parties (see 2017 MBQB 117 ), the judge found the petitioner in contempt of the terms of a consent custody order (the 2007 custody order).

Although aware of the 30-day time limit to file an appeal once the contempt order was entered, the petitioner failed to do so. She now applies for an order to extend the time for commencing her appeal. [ 3 ] For the following reasons the application is dismissed. Background [ 4 ] The parties married in April 1994. Their final separation was in April 2003. They have two children: a daughter born in April 1997 and a son born in April 2001.

The parties were granted a divorce in October 2007, the terms of which, by consent, included several conditions pursuant to the 2007 custody order, three of which the judge found the petitioner in contempt of: (

i) joint custody of the children; (ii) a requirement that the parties communicate and/or consult with one another on all major decisions relating to the children; and (iii) a stipulation that the respondent was to have final decision-making authority in relation to any matter relating to the son’s extracurricular activities if the parties could not agree. [ 5 ] The parties’ family proceedings over the last 14 years have been, as the petitioner puts it, “extensive and contentious.” The petitioner’s proposed appeal would be the fourth time this Court would be asked to adjudicate a dispute between the parties (see 2011 MBCA 50 ; 2012 MBCA 105 ; and 2013 MBCA 106 ).

This is the second time the petitioner has been found in contempt of the terms of a custody order (see Rogers v Rogers , 2008 MBQB 131 ). [ 6 ] The history of this contempt proceeding is set out in detail in the judge’s 26-page written decision pronounced on June 23, 2017. In

summary, the parties could not agree to a regime for co-parenting the children long distance once the petitioner was permitted by this Court to relocate to California from Winnipeg with the children in 2011 (see 2011 MBCA 50 ).

The judge made strong findings of fact that, after the relocation, the petitioner made the conscious decision, over the repeated objection of the respondent, to shut off any information to him about the children’s education and extracurricular activities and unilaterally made all such decisions about the children contrary to the terms of the 2007 custody order. [ 7 ] In her affidavit, the petitioner says that she began to work on her appeal in July of 2017. [ 8 ] On October 27, 2017, the parties met with the judge to settle the terms of the contempt order.

At that time, the petitioner advised that she was spending her time working on a complaint against the judge to the Canadian Judicial Council (CJC). She

also advised that she intended to appeal the finding of contempt. The judge explained to both parties their rights of appeal and that the time limit of when an appeal had to be commenced would run from when the contempt order was entered. He further told the petitioner that the contempt order was not stayed unless she brought a motion for a stay. The petitioner advised the judge that she would take the necessary steps to “file any appropriate appeal documentation or motion to stay following, following the inclusion of that order on the record.” [ 9 ] The contempt order was entered on February 23, 2018.

Given the rules for the calculation of time, the petitioner had to commence her appeal by filing and serving the notice of appeal on or before March 26, 2018. That was not done. The petitioner has not moved for a stay of the contempt order. [ 10 ] On June 8, 2018, the petitioner filed her application to extend the time to commence her appeal. She proposes to raise 47 grounds of appeal (20 errors of law or principle by the judge; 10 misapprehensions of the evidence; 16 examples of a reasonable apprehension of bias; and a challenge to the 2008 contempt finding by a different Family Court judge).

To prosecute these grounds of appeal, she intends to present a motion for fresh evidence to supplement the record, which would go into detail as to the facts of the parties’ family litigation over the last 14 years. [ 11 ] Based on my review of the materials filed by the parties and the opportunity of hearing from the petitioner, I would summarise her position on her application to extend the time as follows: • She has had a continuous intention to appeal right back to the date the reasons were pronounced. • The untimeliness of bringing the appeal is only about two months. • She has a number of demands on her time from being a single parent, completing post-doctoral work to become a licenced clinical psychologist, representing herself on this and other Family Court proceedings, and working on a CJC complaint against the judge. • In February 2018, she developed a sinus condition that affected her ability to prepare her appeal. • The historic nature of the family litigation raises issues relating to the judge and other judges of the Family Court who have been involved in her case. • The law of contempt is complex and there are serious consequences to her professional reputation and liberty of such a finding. • She is self-represented by necessity. • She has been diligent in commencing her appeal. • The Family Court has displayed bias against her in fact finding and has used a double standard in measuring her conduct as opposed to that of the respondent. • The delay has caused no prejudice to the respondent that cannot be remedied. • There is arguable merit to her various grounds of appeal. • It is in the interests of justice to grant the extension of time. [ 12 ] A motion for enforcement of the contempt order is to be heard in Family Court on September 7, 2018.

There is no evidence that the petitioner has complied with the contempt order since it was pronounced or that she is prepared to undertake to do so until her appeal is heard and it has been decided. Discussion and Conclusion The Relevant Rules [ 13 ] Rules 11(1)(

a) and 42 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R, provide as follows: Time for service 11(1) Subject to subrules (2) and (2.1), a notice of appeal shall be filed and served within the following time limits: (

a) in a case where the judgment appealed from is required to be filed, within 30 days after that filing; Extension or abridgement of time 42 Except where these rules otherwise provide, where an application is made, the court or a judge may, by order, extend or abridge the time limits set out in these rules for doing any act or taking any proceeding, and that power may be exercised whether the application is made before or after the expiration of the prescribed time limit. The Relevant Principles

[14] The principle of timeliness recognises that rights of appeal are time-limited. There is a public interest in the closure oflitigation. Time limits on the right of appeal also ensure finality and certainty in litigation for the parties as to their rights (see Arndt vArndt, 1987 CarswellMan 284 at para 9 (CA)).

As Schroeder JA commented in Re Blackwell (1962), (ON CA), 34DLR (2d) 369 (Ont CA) (at pp 378-79): If a time were not fixed at which the right of appeal should cease, the parties would never know what their rights were, and litigantscould not safely deal with the fruits of their judgment because the judgment might still be subject to appeal.

The public interest demandsthat there should be a termination beyond and after which the decision in a suit should be final and unquestionable, a result of theapplication of the maxim interest reipublicae ut sit finis litium. [15] All too frequently, appellants do not respect the principle of timeliness and need to seek relief because of delay in theformalities of commencing an appeal. Rule 42 provides the Court or a judge of the Court with the discretion to grant such relief.

Theunderlying principle as to the exercise of this discretion is well known and was stated long ago by Brett MR in Re Manchester EconomicBuilding Society, [1883] 24 Ch D 488 (CA UK) as follows (at p 497): “I know of no rule other than this, that the Court has power togive the special leave, and exercising its judicial discretion is bound to give the special leave, if justice requires that that leave should begiven.” See also The Children’s Aid Society of Winnipeg v Lambert (4 December 1978), Winnipeg (Man CA), Freedman CJM; andHunter v Hunter, 2000 MBCA 134 at para 6, Scott CJM. [16] Over time, this Court has identified four factors to consider as to whether an extension of time to commence an appealshould be granted: 1. the applicant had a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2. the applicant has a reasonable explanation for the delay; 3. the applicant has an arguable ground of appeal; and 4. any prejudice suffered by the other party if an extension of time is granted can be addressed.

See Klein v Martin, 2011 MBCA 19 at paras 4-5; Child and Family Services of Western Manitoba v G (S W

R) et al, 2014 MBCA 60 atpara 13; and Pimicikamak et al v Manitoba et al, 2016 MBCA 106 at para 7. [17] These factors are not intended to be a rigid straightjacket as to the exercise of judicial discretion. Regardless of whetheror not all four criteria are met, the Court may still grant or refuse the extension of time if it is right and just in all of the circumstances todo so (see Hunter at paras 6, 11; C (

S) v C (AS), 2011 MBCA 70 at paras 4-5; and Boryskiewich v Stuart, 2014 MBCA 77 at para 6). Iagree with the comments of MacPherson JA in Monteith v Monteith, 2010 ONCA 78, that this last consideration is an “umbrella” (atpara 20); the Court must look broadly at the relevant circumstances and do what justice requires.

Application of the Relevant Principles [18] The respondent concedes that the petitioner had a bona fide intention to appeal continuously from a time within theperiod when the appeal should have been commenced. [19] The reasonableness of the petitioner’s explanation for the delay in commencing her appeal is of concern to me. This isnot an inadvertent-slip case where an appeal period is missed by a day or two (see Klein). An appeal that is “well out of time” requiresthe applicant to demonstrate a satisfactory reason for the entire period of delay (Tattrie v Tattrie, 1994 CarswellBC 1741 at para 11(CA)).

The test for the reasonableness of the reason(

s) for the delay is objective. [20] The explanation of the petitioner that she has a busy calendar is not satisfactory. She had nine months to prepare hernotice of appeal from the time when the decision was pronounced in writing until the expiry of the period to appeal (see Bazan v TheAssiniboine South School Division et al, 2013 MBQB 68 at para 31). She used her time, in part, to focus on irrelevant issues such as herCJC complaint. [21] I take no issue with the fact that the law of contempt may be complex in certain cases and, by necessity, the petitioner isself-represented.

However, the rules apply equally to those who are represented by counsel and those who are not (see Bazan at paras67-69). The petitioner is a mature and well-educated person. The quality of her legal materials is more than just intelligible. She wasaware of the time limit to file the appeal. As I will explain, the issues here surrounding contempt are primarily factual as opposed tolegal. [22] I also accept that a finding of civil contempt has significant consequences. The difficulty for the petitioner is herconcerns about the professional consequences of the finding of contempt do not assist her.

In the eyes of the law, she will always be acontemnor because of the 2008 finding that was not appealed. In terms of her liberty interests, the imprisonment sentence the judgeordered was suspended if she complied with the judge’s decision and disclosed information to the respondent about the son until he turns18 next April. It is completely within the control of the petitioner whether her liberty is in jeopardy. [23] The one explanation that the petitioner provides that has something to it is her sinus condition between February andApril 2018.

However, on close examination of the facts, it does not satisfactorily explain the entire period of delay. [24] I accept that the petitioner’s health was impacted and treatment was necessary; however, I have no independentevidence as to the severity of her condition on her abilities day to day for the relevant period. She does not say in her affidavit that shestopped her post-graduate work, commuting two hours each day to work or performing her day-to-day parenting responsibilities.

Whatshe says is fatigue caused by breathing problems left her with “no energy to attend to the legal matters or work late into the night aftermy family obligations were met.” At the same time, she does say she was working on the contempt appeal while ill. At the end ofFebruary 2018, she began to communicate with a law phone-in service to get advice and, in March 2018, she says that, “after having

difficulty identifying specific aspects of the record most relevant to [her] intended appeal” (which suggests she was working on it), shecorresponded with the Chief Justice of the Court of Queen’s Bench about accessing audio recordings of the contempt hearing. [25] Obviously, a health issue affecting a litigant, depending on its nature, can be a satisfactory reason to abridge a legaldeadline in an appropriate case.

While part of the delay in commencing the appeal can be explained by the medical condition that set inas of February 10, 2018, it does not satisfactorily explain the entire period of delay in light of the petitioner having a lengthy period oftime before taking ill to work on her appeal; she was not incapacitated totally in the period from February to April 2018; and noexplanation whatsoever has been provided as to why she did not move immediately to commence appeal proceedings after her healthreturned to near normal in May of 2018. [26] In my view, the petitioner was not diligent in commencing her appeal and the reasons she has advanced for not doing soare not satisfactory. [27] I also have concerns as to the sufficiency of the merit of the appeal despite that factor being a low threshold to meet.

Inexamining the merits of the proposed appeal, my role is not to consider the full merits of the case but, rather, to conduct a preliminaryexamination of the grounds of appeal mindful of the applicable standard of review. If there is an arguable ground of appeal, thethreshold is met (see Boryskiewich at para 9). [28] It is difficult for me to make a preliminary assessment of the merits of the petitioner’s proposed grounds of appealbecause little information has been placed before me by her in support of her application. I have nothing at all as to why she seeks to re-open the 2008 contempt order.

I have no transcripts or other material that support her claims of a reasonable apprehension of bias againstthe judge. I do not have a transcript of the contempt hearing to assess the strength of the alleged grounds of appeal although the partiestold me the hearing was brief.

While the threshold of arguable merit is not a stringent one and it is not necessary for an applicant tocompile the complete record to succeed on an application for an extension of time, an applicant must do more than a bald assertion of“trust me”. [29] I do not share the petitioner’s view that the judge’s decision is “the absolute worst written decision I’ve read during myyears of self-representation.” In a criminal proceeding, a judge is required to provide reasons that explain why the decision was made,provide public accountability for the decision made and permit effective appellate review (see R v REM, 2008 SCC 51 at para 11).

Given the quasi-criminal nature of civil contempt, no less is expected from a judge’s reasons in such a matter. [30] The judge’s reasons set out the nature of the respondent’s contempt motion, the factual background, the test for civilcontempt and the judge’s findings on each of the six allegations of contempt raised by the respondent. The judge also expressed in somedetail his rationale for imposing a sentence of 60 days’ imprisonment to be suspended on clear conditions for the petitioner to complywith.

Viewed through the lens of judicial experience, the judge’s reasons are more than sufficient to explain what he decided and why. [31] The petitioner made clear in her submissions that, while she proposes 47 grounds of appeal, the focus of her appealrelates to errors in the judge’s fact-finding and to him having a reasonable apprehension of bias against her. [32] The applicable standards of review are well known. Findings of contempt, if informed by the correct principles, areentitled to deference on appeal (see G (JD) v G (SL), 2017 MBCA 117 at para 73).

Given the presumption of judicial integrity andimpartiality, the threshold to establish a reasonable apprehension of bias is high (see R v S (RD), (SCC), [1997] 3 SCR484 at paras 112-114; and Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 atparas 20-21).

Finally, to introduce fresh evidence on an appeal, the petitioner will have to meet the criteria discussed in Palmer et al vThe Queen, (SCC), [1980] 1 SCR 759 at 775, and satisfy the panel that it is in the interests of justice to admit the freshevidence. [33] The only conditions the judge accepted that the petitioner was in contempt of were terms from the 2007 custody orderwhich are unambiguous.

The difficulty for the petitioner is that she does not deny that she shut off the information flow to therespondent respecting the children, and prohibited him from having an equal voice in the decision-making, once she relocated toCalifornia in 2011.

She says that the factual-finding errors of the judge relate to his weighing of the evidence on “communication”between the parties by erroneously “focus[sing] on [her conduct] in a negative manner with no attention to the [respondent’s] conduct orrelevant, negative issues.” She argues that, by ignoring the true “context” of the parties’ relationship, the judge made a palpable andoverriding error in his findings over the communication problems the parties had over the children once she relocated to California. [34] The problem for the petitioner is that it is difficult to succeed with such arguments on an appeal given the standard ofreview, nor are such arguments particularly compelling in the assessment of arguable merit absent demonstration of the judge making anobvious material error (see Fishman v Shaward, 1987 CarswellMan 573 at para 5 (CA)). [35] The petitioner’s suggestion that she proposes to take a panel of the Court in detail through the intricacies of 14 years offamily law litigation by her fresh evidence motion is a non-starter given the Palmer criteria.

In my view, such a motion is doomed tofailure. [36] The overall difficulty with the petitioner’s approach in this proposed appeal is that it disregards entirely the order sheagreed to in 2007 and the right of the respondent to demand compliance with it. She had a legal obligation to provide information to therespondent and involve him in decision-making regarding the children regardless of his past, present or likely future conduct. If she didnot think that was appropriate or in the best interests of the children, her remedy was to seek variance of the 2007 order, not to ignore it.

The Family Court, not the petitioner, is the final arbitrator of the respondent’s rights in relation to the parties’ children. To thinkotherwise is to abandon the rule of law. [37] The petitioner could not point me to anything in the record she put forward on her application which would lead me toconclude that there is a reasonable prospect of the petitioner convincing a panel of this Court that the judge made a palpable andoverriding error of fact regarding his findings of contempt.

[38] There are also significant problems with the petitioner’s claim of a reasonable apprehension of bias against the judge. All I have before me is an unsuccessful litigant’s opinion that the judge was subject to, what she called, the “incestuous” influence ofother judges of the Family Court in his decision-making. It is important to remember that such a conspiratorial allegation challengesboth the integrity of the judges in question and the system generally. Such a claim should not be made lightly, particularly in the absenceof any evidence to support it.

The threshold to succeed on such an argument is very high and is based on what a reasonable, informedperson would think about the circumstances, not a dissatisfied litigant. In my view, the allegation of a reasonable apprehension of bias iscompletely devoid of merit on a preliminary examination. [39] The respondent argued that he would suffer prejudice that cannot be addressed if I granted the extension of timebecause the parties’ litigation over child and spousal support proceeded on the basis that the contempt order was final (see 2018 MBQB75).

I have read that decision and am not persuaded that any prejudice to the respondent that granting an extension of time might causecannot be addressed either in this Court or in the Family Court. [40] The final question to consider is what the justice of the case demands.

There is nothing I can see, taking a broad look atthe circumstances, that can compensate for the fact that the petitioner does not have a satisfactory explanation for the entire period ofdelay in commencing her appeal and that there is little, if any, merit to it on a preliminary examination. [41] If anything, I am of the view that the justice of the case would demand refusing the extension of time even if therelevant criteria had been met (see Hunter at para 11). The petitioner has been found in contempt for a second time.

Public confidence inthe administration of justice demands that the rule of law be respected and that parties, particularly in cases involving children, avoidremedies of self-help.

Had the petitioner properly commenced her appeal in time, the fact that she has not purged her contempt, obtaineda stay of the contempt order or given some satisfactory undertaking that would instill confidence in this Court that its order would berespected if she was unsuccessful, would be good reason to not hear the appeal at all because it would be an abuse of process (see PaulMagder Furs Ltd v Ontario (Attorney-General) (1991), (ON CA), 85 DLR (4th) 694 at 698-99 (Ont CA), leave toappeal to SCC refused, [1992] SCCA No 92; and Dickie v Dickie, 2007 SCC 8).

Disposition [42] In the result, the application is dismissed with costs on a tariff basis. Because of the lengthy delay that resulted in thefinalization of the certificate of decision of the parties’ last appearance in this Court (see 2013 MBCA 106), approval of the form of myorder is dispensed with. JA