Osmond v. Osmond, 2011 NLCA 35

Date: 20110531 Docket: 11/31 Citation: Osmond v. Osmond, 2011 NLCA 35 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: GREGORY COLIN OSMOND APPLICANT AND: BEVERLEY DALE OSMOND RESPONDENT Coram: Welsh, J.A. Application Heard: May 31, 2011 Decision Rendered: May 31, 2011 (Orally) Memorandum of Disposition Filed: June 1, 2011 Counsel for the Appellant: Self Represented Counsel for the Respondent: Donald Gallant MEMORANDUM OF DISPOSITION Welsh, J.A.: [1] Gregory and Beverley Osmond were married on September 2, 1988. They separated on August 9, 2006 and are divorced.

There are two children of the marriage born in July 1993 and December 1995. As an incident of the parties’ divorce, a consent order,dated May 20, 2008, was filed dealing with the division of matrimonial property. Almost three years later, on March 11, 2011, Mr.Osmond filed an application in this Court for an extension of time to file a notice of appeal with respect to the consent order. Theapplication was set to be heard on May 31, 2011. At that hearing, I denied Mr. Osmond’s application.

Following are the reasons for thatdecision. [2] The law regarding the extension of time in which to file a notice of appeal in proceedings under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, is discussed in detail in Fitzgerald v. Foote (2003), 2003 NLCA 25 , 225 Nfld. & P.E.I.R. 64 (NLCA). Thecriteria to be considered in assessing such an application, gleaned from the provisions of the Divorce Act and the Rules of the Supreme

Court, 1986 , together with the case law, include: (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 exceptional or special circumstances justifying or working against the fairness of an extension. [ 3 ] In this case, Mr. Osmond contends that the consent order was not properly dealt with by his counsel in that she did not follow his instructions as to signing and filing the document.

He admits that he was aware of this issue at least by the summer of 2008. His main reason for failing to initiate an appeal is that he did not know that he could appeal a consent order. This is not a persuasive reason. Mr. Osmond owns a business and has had many dealings with the courts regarding his divorce. He made no effort to contact the registry of this Court or to seek advice on the point from a lawyer. [ 4 ] An important consideration in assessing the equity of granting an extension of time to file a notice of appeal in this case is the prejudice to Ms. Osmond. Ms.

Osmond has shouldered a significant financial burden as a result of the divorce. Most importantly, she has complied with her obligations under the consent order, even in the face of Mr. Osmond’s failure to do so. Three years have passed since the consent order was filed. In the circumstances, if Mr. Osmond had wished to challenge the order it was incumbent on him to take action much sooner, particularly since he based his appeal on an allegation that his counsel had, to his detriment, failed to follow his instructions.

A challenge of this sort, which goes to the root of the consent order, must be raised at the earliest opportunity to permit the other party to the agreement to respond and to protect her own interests. [ 5 ] In the result, Mr. Osmond’s application for an extension of time to file a notice of appeal was dismissed. ________________________________ B. G. Welsh, J.A.