McMullin-Mullin v. Henley, 2013 NSCA 85

NOVA SCOTIA COURT OF APPEAL Citation: McMullin-Mullin v. Henley , 2013 NSCA 85 Date: 20130709 Docket: CA 415995 Registry: Halifax Between: Terra McMullin-Mullin Appellant v. Trevor Gerald Henley Respondent Judge: The Honourable Justice David P.S. Farrar Motion Heard: June 19, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion dismissed without costs.

Counsel: Appellant in person Respondent in person Decision : Background [ 1 ] The proposed appellant, Terra McMullin-Mullin appeared before Justice Mona Lynch of the Nova Scotia Supreme Court (Family Division) on April 11, 2013 to respond to the proposed respondent, Trevor Henley’s application to vary child support. The Conference Memorandum sets out what occurred on that date: 1. Matter scheduled this date with respect to Mr. Henley’s Application to Vary with respect to child support effective February 2012. At the time the matter was called to the courtroom, Mr.

Henley had not arrived – court dismissed his application. 2. Mr. Henley arrived approximately ten minutes late and requested the court hear the application. Court determined it would proceed. 3. Ms. McMullin-Mullin then asked for an adjournment to seek counsel and to possibly file a response to Mr. Henley’s application. 4. Court grants the adjournment. Matter to be heard on June 11, 2013 from 10:00 a.m. – 12:30 p.m.

[2] The remainder of the Memorandum sets out the filing deadlines. [3] Ms. McMullin-Mullin wishes to appeal the Conference Memorandum on the following grounds: 1. THAT the Honorable [sic] Justice Lynch erred in scheduling a hearing for a future date after having dismissed the application. She lacked jurisdiction after she dismissed the application and was functus. [4] In her proposed Notice of Appeal Ms.

McMullin-Mullin asks “that this Conference Memorandum appealed from be reversedand that the matter stand dismissed and that the hearing date be vacated”. [5] The adjourned hearing was originally scheduled for June 11th, 2013. It is now rescheduled for September 5th, 2013. [6] In her Notice of Motion Ms. McMullin-Mullin does not reference the Rule upon which she relies, however, I will assume thatit is Rule 90.37(12)(

h) which gives a judge of this Court authority to extend any time period prescribed for filing of an appeal. [7] In her affidavit she explains the delay in failing to appeal saying that she received incorrect advice in the time limit for filingan appeal and as a result was out of time. She said it was always her intention to appeal the Conference Memorandum. [8] I heard Ms. McMullin-Mullin’s motion in chambers on June 19th, 2013. At the conclusion of argument I dismissed the motionwith reasons to follow. [9] These are my reasons. [10] Recently, Beveridge, J.A. in Farrell v. Casavant , 2010 NSCA 71 undertook a helpful

summary of the law which must guidethis Court’s consideration of a request to extend time to file an appeal.

He explained the approach to be taken with respect to suchrequests as follows: [17] Given the myriad of circumstances that can surround the failure by a prospective appellant to meet the prescribed time limits toperfect an appeal, it is appropriate that the so called three-part test has since clearly morphed into being more properly considered asguidelines or factors which a Chambers judge should consider in determining the ultimate question as to whether or not justice requiresthat an extension of time be granted. (See Mitchell v.

Massey Estate (1997), 1997 NSCA 9 , 163 N.S.R. (2d) 278; Robert HatchRetail Inc. v. Canadian Auto Workers Union Local 4624, 1999 NSCA 107.) From these, and other cases, common factors considered tobe relevant are the length of delay, the reason for the delay, the presence or absence of prejudice, the apparent strength or merit in theproposed appeal and the good faith intention of the applicant to exercise his right of appeal within the prescribed time period. Therelative weight to be given to these or other factors may vary.

As Hallett J.A. stressed, the test is a flexible one, uninhibited by rigidguidelines. (My emphasis) [11] It is within this context that the appellant’s motion must be analyzed. [12] For the purposes of this analysis I will assume that Ms. McMullin-Mullin had a good faith intention to exercise her right ofappeal; that the delay is not so inordinate as to cause prejudice to Mr. Henley; and, there are valid reasons for the delay.

In my view, thismotion fails because the applicant has not shown there are circumstances present which would warrant an extension of time, inparticular, she has not shown that there is a strong case for error at trial and real grounds of appeal justifying appellate interference(Jollimore Estate v. Jollimore, 2001 NSCA 116, ¶22). [13] Ms. McMullin-Mullin’s only argument on the proposed appeal is that the application judge, once having dismissed theapplication was functus and lacked jurisdiction to make any further decisions with respect to this matter. That position is without merit.

Justice Hamilton, in MacDonald v. MacDonald, 2010 NSCA 34, although in a different context, had occasion to consider when adecision becomes effective. She concluded that in most civil cases, until a written order is issued, the judge has the discretion towithdraw, modify or even reverse his or her decision (¶26). She also cites as authority Burke v. Sitser, 2002 NSCA 115 and Créditfoncier Franco-Canadien v. Fort Massey Realities Ltd., (1981), (NS SC), 49 N.S.R. (2d) 646. [14] More recently, Justice Bourgeois followed MacDonald v. MacDonald in Doncaster v. Field, 2013 NSSC 149.

Bourgeois, J.summarized the law in ¶34: 34 The Court is not functus in terms of reconsidering the terms of access contemplated in the March 7, 2013 decision. MacDonald,supra as noted earlier herein, is authority for that proposition. The Court also finds instructive the comments of Justice Oland in Burkev. Sitser, 2002 NSCA 115 as follows: [7] In our respectful opinion, the chambers judge erred in determining that he was functus. Until the order issued, he had the discretion towithdraw, modify, or even reverse his decision. In Lunenburg v.

Bridgewater Public Service Commission (1983), (NSCA), 59 N.S.R. (2d) 23 (N.S.S.C.A.D.), where the issue was whether the judge erred in reversing his oral decision, Cooper, J.A.reviewed the case authority pertaining to functus officio at para 8 and para 9. He stated at para 10: ... in my view Judge Clements was here not functus. He could only be so if an order giving effect as a judgment to his oral decision hadbeen entered. I quite recognize the word of caution entered by Bridges, J., in the Fruehauf Trailer Co. case, (NB CA),[1955] N.B.J.

No. 13, supra, to the effect that the right to modify or vary a decision in circumstances such as we have here is one which"a court should be most reluctant to exercise and should only do so in an exceptional case", but in my opinion this is such a case. JudgeClements frankly said that he had not clearly dealt with the main argument of the Commission and, that being so, it seems to me highlydesirable that he exercise his right to vary his oral decision. [8] We would also refer to Temple v. Riley, 2001 NSCA 36 , [2001] N.S.J. No. 66 (QL), wherein Saunders, J.S. stated at para60:

The general rule is that a trial judge may change or amend his/her judgment at any time before issue and entry thereof, but that after the judgment has been issued and entered, he/she is functus officio and relinquishes any power to do so, subject of course to the provisions of the Rules. See, for example, The Law of Civil Procedure , W.B. Williston and R.J. Rolls, Vol.2, Butterworths (Toronto: 1970), p. 1059. [ 15 ] Similarly, the argument advanced by Ms. McMullin-Mullin that the application judge was functus has no chance of success.

It is well-established in this province that until the written order is issued, the judge has discretion to withdraw, modify or even change his or her decision. [ 16 ] The application is dismissed. Both parties were self-represented and as a result, I decline to order costs. Farrar, J.A.