Brooks v. Soto, 2013 NSCA 7

NOVA SCOTIA COURT OF APPEAL Citation: Brooks v. Soto , 2013 NSCA 7 Date: 20130110 Docket: CA 405761 Registry: Halifax Between: Gloria Jean Brooks Appellant v. Michael Soto Respondent Judge: The Honourable Justice Peter M. S. Bryson Motion Heard: January 3, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion to extend time for appellant to file the notice of appeal is dismissed. Counsel: Patrick H. MacMillan, for the appellant Respondent, in person Decision : [ 1 ] Ms. Brooks wants to appeal the December 15, 2011 decision of the Honourable Justice R.

James Williams, by which sole custody of her (now 13-year-old) son was awarded to his father, Michael Soto. Mr. Soto lives in New Hampshire. Ms. Brooks lives in Halifax. Their child has resided with Mr. Soto since March 24, 2011 when the Honourable Justice Moira C. Legere Sers ordered the child returned to his father ’ s care. [ 2 ] Chambers proceeded with Mr. Soto on the telephone from New Hampshire. Although he opposed the motion, he did not file

any materials with the Court. He said that things are financially tight for him and he can’t afford legal counsel. I infer that it would bedifficult for him to afford to appear in court in Nova Scotia. I asked questions of Mr. Soto, including when he became aware of Ms.Brooks’ intention to appeal. He says he learned of it a couple of weeks ago. I allowed counsel for Ms. Brooks to ask Mr. Soto questionsas well. I then advised counsel and Mr. Soto that I would reserve my decision. [3] Civil Procedure Rule 90.37(12)(

h) describes a judge’s authority to extend time to appeal: 90.37

(12) A judge of the Court of Appeal hearing a motion . . . may order any of the following: (

h) that any time prescribed by this Rule 90 be extended or abridged before or after the expiration thereof. [4] In Bellefontaine v.

Schneiderman, 2006 NSCA 96, Bateman J.A. described how the discretion is usually exercised: [3] A three-part test is generally applied by this Court on an application to extend the time for filing a notice of appeal, requiring thatthe applicant demonstrate (Jollymore Estate Re (2001), 2001 NSCA 116 , 196 N.S.R. (2d) 177 (C.A. in Chambers) at para.22): (1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of whichbeing that there is a strong case for error at trial and real grounds justifying appellate interference. [4] Where justice requires that the application be granted, the judge may allow an extension even if the three part test is not strictlymet (Tibbetts v.

Tibbetts (1992), (NS CA), 112 N.S.R. (2d) 173 (C.A. in Chambers)). [5] Although courts most commonly allude to the three-part test in Jollymore, supra, the ultimate question is whether justicerequires that an extension be granted: Farrell v. Casavant, 2010 NSCA 71, at para. 17 and Cummings v. Nova Scotia (CommunityServices), 2011 NSCA 2, at para. 19. Accordingly, the three-part Jollymore test is an appropriate guide for the exercise of the court’sdiscretion but it is not an exhaustive description of that discretion. 1.

Bona fide intention to Appeal when the right to appeal existed: [6] In support of her motion, Ms. Brooks has filed an affidavit in which she deposes that: 8. It has been my intention to appeal the Honourable Justice J. Williams’ decision since the hearing of the custody trial. My counselat the time, Joyce Ruck De Peza, requested a written decision from the Honourable Justice J. Williams at the conclusion of the trial. Ibelieve that the written decision was issued at approximately the same time as the aforementioned Order.

Attached hereto as Exhibit“B” by the Barrister swearing me to this my Affidavit is a true print out of the Honourable Justice J. Williams’ written decision. . . . 10. I retained my previous lawyer, Joyce Ruck De Peza, through Legal Aid Nova Scotia, and she in fact worked out of Legal Aid’sHalifax North office. In order to bring forward an appeal, however, I was issued a certificate to retain a lawyer in the community.

11. The certificate was only to gain an opinion on the merits of an appeal. I retained my current counsel, Patrick MacMillan, to gain an opinion. 12. It then took me a number of more weeks to obtain approval for this appeal. 13. I have moved as quickly as I could in order to file this appeal in a timely fashion. I wanted the assistance of a lawyer and did not think that I could represent myself adequately. For that reason I chose not to file a Notice of Appeal on my own behalf. [ 7 ] Mr. MacMillan concedes that the appeal period expired on May 30, 2012. [ 8 ] Ms.

Brooks ’ affidavit is striking for what it does not say. Although she says she formed an intention to appeal immediately after Justice Williams made his decision in December 2011, the first public expression of that intention is her affidavit of August 10, 2012 in support of her motion to extend time. Nothing suggests that Mr. Soto or his trial counsel had been informed of Ms. Brooks ’ intention to appeal prior to that. Ms. Brooks ’ trial counsel works for Nova Scotia Legal Aid. Her current counsel is working on a legal aid certificate. One

interpretation of her affidavit is that Ms. Brooks would only appeal if she could have legal counsel. That is not an unqualified intention to appeal. Ms. Brooks ’ delay gives me doubt about her expressed intention to appeal between December of 2011 and May of 2012. Nevertheless, for the purposes of this motion, I will assume that Ms. Brooks had a bona fide intention to appeal during the appeal period. Excuse for Delay: [ 9 ] In para. 8 of her affidavit, Ms. Brooks suggests that Justice Williams ’ decision was not issued until April 2012.

In fact, the written decision was issued on January 12, 2012. [ 10 ] The order implementing Justice Williams ’ December 2011 decision was issued April 25, 2012. There is no explanation for this four-month delay. Ms. Brooks ’ current counsel was not aware of why there was such a delay. Whether or not this delay had anything to do with Ms. Brooks or her trial counsel, it had the effect of extending the appeal period for Ms. Brooks by at least three months. She does not appear to have made good use of this time. [ 11 ] Ms.

Brooks first attempted to bring this motion in August 2012 when her current counsel, Patrick MacMillan, served the motion on Mr. Soto ’ s trial counsel. Mr. MacMillan was advised that trial counsel ’ s retainer was terminated at the conclusion of trial. Mr. Soto was then personally served and the motion was originally scheduled to be heard on December 20th. Mr. Soto phoned the court to indicate that he was not able to come but that he opposed the motion. Accordingly, the December 20th motion was rescheduled for January 3rd with Mr. Soto participating by telephone. [ 12 ] Ms.

Brooks ’ present counsel informs me that he was retained in May 2012. From her affidavit, it appears that an opinion was required on the potential merits of an appeal before current counsel was authorized to move forward with an appeal on Ms. Brooks ’ behalf. Nevertheless, there is still no explanation of why a notice of appeal was not filed, either by counsel or by Ms. Brooks, with the assistance of counsel. It is understandable that Ms. Brooks would want the assistance of counsel in prosecuting her appeal, but that is not an explanation or an excuse for not filing a notice of appeal within the appeal period.

Ms. Brooks had access to two lawyers for that purpose – her trial counsel, Ms. Ruck De Peza, and her current counsel, Mr. MacMillan. It is common for litigants to file a notice and seek counsel later. But in this case, Ms. Brooks had access to counsel at all times, even if she could not be sure of assistance on the appeal itself. Moreover, there should have been ample time after filing a notice of appeal to ascertain whether counsel would be available to Ms. Brooks on appeal. The Civil Procedure Rules allow 80 days to perfect the appeal after the notice of appeal has been filed. [ 13 ] Even after securing Mr.

MacMillan as her counsel, there was a four-month delay in bringing a proper motion for extension before the court. Mr. Soto ’ s residence was known. It should not have taken four months to serve him and set the motion down.

[ 14 ] I am not satisfied that there was a reasonable excuse for the delay in filing the notice of appeal. Nor am I persuaded that Ms. Brooks proceeded expeditiously after the appeal period expired. 3. Exceptional circumstances/grounds for appeal: [ 15 ] With respect to the grounds of the proposed appeal, Ms. Brooks deposes: 9. It is my belief that I have viable grounds of appeal for the following reasons: i. The Honourable Justice J.

Williams made unreasonable findings of fact based on the facts before him, including placing unreasonably little weight to the Respondent’s criminal past including domestic violence; ii. The Honourable Justice J. Williams failed to grant, or reasonably consider, my requests for adjournment to allow for additional evidence and witnesses to brought forward. Unreasonable Findings of Fact: [ 16 ] Unreasonable findings of fact require that an appellant establish that a trial judge made “ palpable and overriding ” errors of fact. This means that the errors must be clear and material to the result.

The only elaboration in Ms. Brooks ’ affidavit is that “ unreasonably little weight ” was placed on Mr. Soto ’ s criminal past including domestic violence. [ 17 ] The trial judge commented on Mr. Soto ’ s brushes with the law as follows: [ 18 ] Mr. Soto and his partner, Ms. Bates, reside in Plymouth, New Hampshire. He is far from perfect. His past includes a series of criminal offences and allegations of domestic violence . These concerns have not been present in the last three or four years. He and Ms. Bates have been together since December of 2008. He works regularly.

It appears that they have some financial issues and are economically "tight", but by and large appear to get by. Ms. Bates does not work outside the home. She is available to help care for Dillon when he is not in school and Mr. Soto is working. Dillon takes the bus to school. [Emphasis added] [18] The weighing of evidence is for the trial judge and appeal courts show great deference to a trial judge ’ s findings. It is clear that Justice Williams considered Mr. Soto ’ s criminal past, allegations of domestic violence, and took that into account in his decision. Ms.

Brooks has not led any evidence that would suggest a “ strong case for error at trial ” with respect to the judge ’ s factual findings. [ 19 ] Under s. 18(5) of the Maintenance and Custody Act , R.S.N.S. 1989, c. 160, a child ’ s welfare is primary consideration: 18

(5) In any proceeding under this Act concerning care and custody or access and visiting privileges in relation to a child, the court shall apply the principle that the welfare of the child is the paramount consideration. The jurisprudence treats this similarly to “ best interests of the child ” : Gibney v. Conohan , 2011 NSSC 268 ; McInroy v. Saarloos , 2012 NSSC 415 ; Godin v. Godin , 2010 NSSC 365 ; V.H. v. B.L. , 2010 NSSC 202 ; Gillespie v. Paterson , 2007 NSSC 368 . [ 20 ] Justice Williams was guided by this

section in his decision, citing Justice Walter R. E. Goodfellow ’ s non exclusive criteria in

Foley v. Foley (1993), (NS SC), 124 N.S.R. (2d) 198 (N.S.S.C.). With respect to her son’s welfare, Justice Williamshad this to say about Ms. Brooks: [11] Ms. Brooks is a person who is attempting to look after herself. Between November of 2010 when Dillon came back to her care,and March of 2011, she had financial problems. She was evicted from her home; she had difficulties with neighbours and socialassistance. She threatened to burn down her home. She threatened to take care of neighbours with a baseball bat. Dillon was present forsome of this. Police were involved and interviewed him.

I conclude that he was traumatized by these events. . . . [13] Ms. Brooks had telephone access with Dillon after the interim order. She last called him in April of this year (2011). I concludethat in the last such call she indicated to Dillon that she would not call again and that he should “have a nice life” or something to thateffect. I conclude that such comments are and were harmful to Dillon. . . . [15] Ms. Brooks has difficulties with relationships. She has, it appears, little or minimal contact with her own family.

She does notappreciate the impact had on someone of Dillon’s age of statements she makes (like “you are going to a orphanage”, “I will burn thishouse down”, “I will not call you again”, “have a good life”). She expressed some concern that Mr. Soto was alienating Dillon fromher. There is little evidence of that. Nothing could alienate Dillon from Ms. Brooks more than her own behaviour and statements. [21] With respect to their son’s progress in Mr. Soto’s care, Justice Williams said this: [20] Dillon has resided with his father and Ms. Bates since the March 24, 2011 Interim Order.

Dillon is doing exceptionally well inschool, especially when one considers the number of and nature of the moves he has been subjected to over the last two to three years. He sees a counsellor weekly. He appears to be thriving. His report card has marks between 73 and 100; most of the marks are in the80’s and 90’s. Comments on his report card are that he is self-motivated, works hard, is an excellent student. Both Mr. Soto and Ms.Brooks should be proud of him. [22] In contrast, the trial judge described their son’s fear of Ms.

Brooks: [28] It is not necessary for this Court to conclude whether actual physical abuse of Dillon took place at the hands of Ms. Brooks. It isclear, however, that Dillon fears being with his mother. It is clear that she, and she has acknowledged this on occasion, has said thingsthat are, in a word, “hurtful” to Dillon. [23] A bare allegation of errors of fact by a trial judge in light of these compelling findings do not give rise to “exceptionalcircumstances” or a strong case for error at trial.

Some evidence should be led to substantiate such a vague ground of appeal (N.L. v.Nova Scotia (Community Services), 2010 NSCA 84, at para. 17). [24] In his brief, Ms. Brooks’ counsel argues that: ...Ms. Brooks has changed counsel so the particulars of the appeal will have to [be] flushed out upon receipt of the trial transcripts. Nevertheless, it is respectfully submitted that there are prima facie grounds for finding there is a strong case for error at trial and realgrounds justifying appellant interference. With respect, there has been ample time to identify allegedly “unreasonable findings of fact”. If Ms.

Brooks does not know what they are– and she should – her trial counsel should. There has been ample opportunity to consult trial counsel for this purpose.

Adjournment: [ 25 ] Ms. Brooks also complains in her proposed notice of appeal that the trial judge failed to grant an adjournment or allow additional evidence and witnesses to be brought forward. But Ms. Brooks does not explain why she needed an adjournment. Who were the witnesses she wanted to call? What evidence would they give? Why was it important? Why weren ’ t they at trial? Justice Williams rejected these requests: [7] At the end of the March 24, 2011 Interim Hearing this matter was scheduled for trial. Trial dates of December 13, 14 and 15, 2011 were set.

On September 13th, 2011 a pre-trial occurred in this proceeding. Filing dates were set. Ms. Brooks did not meet those filing dates. She filed her affidavit just the week before this trial. At the outset of this trial on December 13th, Ms. Brooks asked her counsel to request that the matter be adjourned so she could “get witnesses”. Mr. Soto had travelled from the U. S. for the trial. The matter had obviously been set down for a lengthy period of time (since March of 2011). The time for Ms. Brooks to get witnesses had long passed.

I declined her request for the adjournment. [ 26 ] A trial judge ’ s decision to grant or refuse an adjournment is highly discretionary. Unless incorrect principles are applied or an injustice would result, the Court of Appeal will not intervene: Moore v. Darlington , 2012 NSCA 68 ; Sharpe v. Abbott , 2007 NSCA 6 . Justice Williams ’ decision says that Ms. Brooks failed to meet deadlines and failed to adequately prepare for trial when ample time had been afforded her to do so. His refusal to grant an adjournment in those circumstances does not suggest an error in the exercise of his discretion and Ms.

Brooks ’ s affidavit and proposed notice of appeal do not disturb that impression. [ 27 ] Outside the Jollymore criteria is a catch-all discretion to do “ what is just ” . In this case, that should embrace the principle of the child ’ s best interests (or the paramountcy of the child ’ s welfare per 18(5) of the Act ). [ 28 ] Justice Williams considered the child ’ s best interests. Mr. Soto says that Ms. Brooks has made no attempt to write or contact her child as permitted by Justice Williams ’ decision. According to Mr. Soto, the child is doing very well, which accords with Justice Williams ’ decision.

There is nothing in the motion materials filed by Ms. Brooks which directly addresses her child ’ s best interests. Rather, she argues that the trial decision means that she will have to bring a variation application in a “ foreign jurisdiction ” . Ms. Brooks has lived in the United States and is a member of Indian Brook First Nation. The file materials do not disclose whether she is also an American citizen. But her inconvenience in making a court application does not speak to her son ’ s best interests. Conclusion: [ 29 ] I am not satisfied that Ms.

Brooks has a reasonable excuse for her delay in pursuing an appeal. Nor has she shown that “ exceptional circumstances ” or justice warrant an extension of time to appeal. [ 30 ] Ms. Brooks ’ motion to extend time to file her notice of appeal is dismissed. Bryson, J.A.