Chedrawy v. Chedrawy, 2021 NSCA 73

Nova Scotia Court of Appeal Citation: Chedrawy v. Chedrawy , 2021 NSCA 73 Date: 20211019 Docket: CA 509059 Registry: Halifax Between: Christelle Halabi Chedrawy Appellant v. Edgar George Chedrawy Respondent Judge: Bryson, J.A. Motion Heard: October 6, 2021, in Halifax, Nova Scotia in Chambers Held: Motion to extend time to appeal an interim ex parte order dismissed with costs.

Counsel: Angela Walker, for the appellant Terrance Sheppard, Q.C., for the respondent Introduction [ 1 ] It is better to give up nothing than to fight about nothing. [ 2 ] By attorning to this jurisdiction, the would-be appellant concedes the relief possible from the claims made. [ 3 ] Christelle Chedrawy seeks to appeal Associate Chief Justice O’Neil’s August 16, 2021 ex parte order returning the parties’ children to Nova Scotia after Ms. Chedrawy’s surreptitious removal of them to Delaware via a temporary family visit in Lebanon. Mr. Chedrawy had consented in writing to the latter but was unaware of the former.

When he learned that the children were in Delaware, he petitioned for divorce and brought an interim ex parte motion to have them returned to Nova Scotia. [ 4 ] Ms. Chedrawy obtained her own ex parte order in Delaware but it was dissolved once that Court was apprised of A.C.J. O’Neil’s order. The Delaware Court ordered the children returned to Nova Scotia. Ms. Chedrawy wants to appeal the means by which the children were returned here. She provides no explanation of how that would accomplish anything. The issues between the parties are now fully engaged in the Supreme Court (Family Division). [ 5 ] Ms.

Chedrawy argues that she was not out of time to appeal. Alternatively, she has moved to extend the time to appeal. Her motion should be dismissed because: (

a) absent extraordinary circumstances, appellate courts do not hear appeals from interim ex parte orders; (

b) no meaningful remedy is sought regarding the alleged errors in the decision to issue an interim ex parte order; and (

c) no evidence was led regarding the best interests of the children and how the proposed appeal would serve those interests. Did Ms. Chedrawy appeal in time? [ 6 ] On September 16, 2021, Ms. Chedrawy filed a motion to extend time to appeal the August 16 ex parte order. Her written submissions assume the relevant appeal period is 10 days and cite case law authorizing an extension of time to appeal. But at the hearing, Ms. Chedrawy unexpectedly advanced the novel proposition that she did not need an order extending time because she had 30 days to appeal under the Divorce Act , R.S.C., 1985, c. 3 (2 nd Supp .).

Accordingly, the parties were invited to make additional written submissions. [ 7 ] Ms. Chedrawy argues that s. 21(1) of the Divorce Act permits an appeal “from any judgment or order, whether final or interim, …” within 30 days after the order was made. She adds that Rule 90.13 of the Civil Procedure Rules refers specifically to the 30 days described in the Divorce Act . Since the ex parte order was granted under the Divorce Act , Ms. Chedrawy had 30 days to appeal. She

says that any inconsistency between the 10-day interlocutory appeal period and the Divorce Act should be resolved in favour of the latter,citing federal paramountcy relied on in Nestor v. Nestor, 2018 BCCA 453. [8] A more nuanced analysis than Nestor appears in Elgner v. Elgner, 2011 ONCA 483 (leave to appeal refused: [2011] S.C.C.A.No. 341), in which the Ontario Court of Appeal noted that s. 21(6) of the Divorce Act contemplates an appeal be “asserted, heard anddecided according to the ordinary procedure” of the court to which appeal is made.

It is not necessary to resolve any apparentjurisprudential conflict, because, however calculated, Ms. Chedrawy is out of time. Even if the motion to extend could be construed asan appeal, it was filed on September 16, 2021, 31 days after the issuance of the written ex parte order. [9] But Ms.

Chedrawy remonstrates that although ready to file on September 14, “…counsel was advised by court staff of the[need to?] file a motion for extension of the normal period of appeal because the 10 day [period?] applied and starts to run on the datethe order was issued rather than the date our client became aware of the order…” These words and the draft Interlocutory Notice ofAppeal confirm that discussion with staff related to an interlocutory appeal. Court staff did not err in advising that a motion to extend wasnecessary, because under the Rules, interlocutory appeals must be brought within 10 days and Ms.

Chedrawy’s proposed appeal wasbeyond that time. [10] Ms. Chedrawy’s supplementary submissions on this point are prefaced: “Ms. Chedrawy filed her appeal in time, but for therejection from the Court”. There was no rejection from the Court. Even so, ascribing fault to “court staff” for a want of correctprocedure is an unbecoming abdication of responsibility for a decision counsel should have made regarding a procedure counsel shouldhave known (see Go Fleet Corporation v. So., 2021 ONSC 2199 (Div. Ct.)). [11] However calculated, Ms. Chedrawy was out of time to appeal.

Should time to appeal be extended? [12] Alternatively, Ms. Chedrawy urges an extension of time to appeal as authorized by s. 21(4) of the Divorce Act, Rule 90.37 (12)(

h) and this Court’s jurisprudence, quoting specifically from Farrell v. Casavant, 2010 NSCA 71 at para. 17: [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. [13] Barring exceptional circumstances, appellate courts do not hear appeals from interim ex parte orders because the proceduralremedy is to seek an inter partes hearing before the first instance judge or another judge of that court, as A.C.J. O’Neil’s ex parte ordercontemplated and Rule 22.06 permits (see Secure 2013 Group v. Tiger Calcium Services Inc., 2017 ABCA 316 at paras. 52-55).

Anattempted appeal following an executed ex parte order may even be an abuse of process when the applicant has made no effort to havean inter partes hearing: WEA Records Ltd. v. Visions Channel 4 Ltd., [1983] 2 All E.R. 589 (C.A.). [14] Even applying Farrell v. Casavant, and allowing for good faith and reasonable excuse for delay, on the merits Ms. Chedrawycan do no better than say that A.C.J. O’Neil should have proceeded under the Hague Convention referred to in s. 6 of the ChildAbduction Act, R.S.N.S. 1989, c. 67 rather than the Divorce Act. This is now an academic exercise. Ms. Chedrawy concedesjurisdiction.

Moreover, she has led no evidence and made no submissions concerning the best interests of the children, typically requiredwhere their welfare is engaged (see O.E.A. v. Nova Scotia (Community Services), 2021 NSCA 28; Nova Scotia (Community Services) v.S.E.L., 2002 NSCA 62). Conclusion [15] This motion should never have been brought. The parties’ time and resources would be better spent resolving the issues in theSupreme Court (Family Division). [16] Although counsel suggest costs of $500.00, Ms. Chedrawy’s last-minute assertion that she was not out of time requiredadditional written submissions.

The motion is dismissed with costs of $1,000.00 inclusive of disbursements, payable by Ms. Chedrawyto Mr. Chedrawy forthwith. Bryson, J.A.