Court of Appeal for Ontario
Before: van Rensburg J.A. (Motions Judge)
Between:
Claudia Kudrocova Appellant (Moving Party)
and
Ferdinand Alois Kronberger Respondent (Responding Party)
Counsel: Juliet Montes, agent for Tiffani Frederick, for the moving party Michael Ruhl and Kayla Gordon, for the responding party
Heard and released orally: August 4, 2021
Endorsement
1This is a motion to set aside the Registrar’s dismissal of an appeal for failure to perfect on time, and awarding costs to the respondent of $750. The Order is dated December 9, 2020.
2The appeal is of the orders of Justice McLeod made March 26, 2020 and May 14, 2020 and the costs orders of June 30, 2020. The orders are in relation to the parenting of the parties’ two children.
3After a Notice of Appeal was served on the respondent personally on August 15, 2020, the appeal has proceeded in a manner accurately described by Mr. Ruhl, the respondent father’s counsel, as “sluggish”.
4There have been a variety of problems which were caused or contributed to by the appellant’s initial appeal counsel, which may have resulted, in part, from her health problems and car accident in December, 2020. These include: not sorting out a fee waiver or attending to pay the fee for filing documents in this court; service on the father instead of on his lawyer; not making it clear whether the mother was representing herself or represented by counsel; and most recently, failing to serve this motion on the respondent until notified by the court of the pending motion date. In the interim, counsel for the father was served with all of the appellant’s materials for the appeal, and prepared and served, and attempted to file, the responding materials.
5Mr. Ruhl has fairly acknowledged that, except for the Registrar’s dismissal, the appeal has essentially been perfected. The appeal materials were served on Mr. Ruhl on October 20, 2020, with amended materials served on November 10, 2020. Mr. Ruhl fairly consented to the late filing of the amended appeal materials, and on December 18, 2020 he served responding materials, but he learned of the Registrar’s dismissal when trying to file his materials.
6The factors to consider on a motion to set aside a Registrar’s dismissal are 1) whether the moving party had an intention to appeal within the time for bringing an appeal; 2) the length of the delay and any explanation for the delay; 3) any prejudice to the respondent caused by the delay; and 4) the justice of the case: Paulsson v. University of Illinois, 2010 ONCA 21, at para. 2. The overriding consideration on a motion to set aside a dismissal order is the justice of the case, which can include consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8 (in that case the appeal raised serious issues).
7The moving party’s affidavit explains that the delay was the fault of her first lawyer on the appeal, who did not sort out the question of a fee waiver, and then led her to believe that everything was rectified, and that her appeal was proceeding. After receiving the notice dismissing her appeal, the mother was assured by the lawyer that a motion to set aside the Registrar’s dismissal order would be brought. Apparently, the lawyer was in a car accident, and another lawyer, Ms. Frederick, took over the file in January 2021. This motion was brought several months later and was argued by Ms. Montes attending as Ms. Frederick’s agent.
8The father’s affidavit sets out a chronology of events. The motion to set aside the Registrar’s order is opposed primarily on the basis of the appellant’s delay. The father also asserts that the appeal has little merit, and that to the extent the mother is concerned about what she characterizes as the “separation of the children”, there is a mechanism in place for reattendance before the trial judge. He is also concerned about the effect of the ongoing delay on the children, who have grown accustomed to the parenting orders that were made. The father seeks costs of the appeal in excess of the $750 awarded by the Registrar for the materials that counsel has prepared to respond to the appeal.
9I have concluded that it is in the interests of justice for the Registrar’s order to be set aside, and for the appeal to be permitted to proceed.
10The circumstances are unusual. First, the appellant reasonably understood that her appeal was proceeding. The circumstances leading to the Registrar’s Order, as well as the delay in bringing the motion, are not of her making. She should not suffer the consequences of her lawyer’s oversight or inattention: see Akagi, at para. 6. Second, all of the materials have been prepared, including the responding materials and the appeal can be perfected without delay. Third, I am not persuaded in the circumstances that the delay is prejudicial to the children’s best interests. The current status quo will continue while the appeal is pursued.
11I do not express any opinion on the merits of the appeal based on the limited argument before me on this point. I remind the appellant that the function of this court is not to retry the case on appeal, and that intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. If, as the father submits, the errors that are relied upon by the mother are simply questions of fact, she will have a very difficult time with this appeal.
12Accordingly, an order will go setting aside the Registrar’s order of dismissal; requiring the appeal to be perfected by August 20, 2021; and expediting the hearing of the appeal. By agreement of the parties, there is no order as to costs on this motion.
“K. van Rensburg J.A.”