Peter Anstey v. Jennifer Laffin, 2015 ONSC 1852

CITATION: Anstey v. Laffin, 2015 ONSC 1852

COURT FILE NO.: 273/14 (St. Catharines)

DATE: 2015/03/30

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Peter Anstey (Applicant) v. Jennifer Laffin (Respondent)

BEFORE: The Honourable Mr. Justice R.A. Lococo

HEARD: In writing (in St. Catharines)

E N D O R S E M E N T

1The Applicant, Peter Scott Anstey, has brought a motion for leave to appeal from the final order of Justice MacPherson dated July 30, 2014. Mr. Anstey, who is self-represented, is a resident of Newfoundland. The Respondent, Jennifer Laffin, resides in St. Catharines, Ontario. The final order of Justice MacPherson, made in accordance with the Interjurisdictional Support Orders Act, 2002,¹ varied a Nova Scotia child support order. Under Justice MacPherson’s order, Mr. Anstey is required to pay Ms. Laffin child support in the amount of $151.50 per month, commencing November 15, 2013.

2This motion is Mr. Anstey’s second attempt to obtain leave to appeal to the Divisional Court. On March 4, 2015, he appeared in court in Hamilton before Justice Parayeski, together with counsel for the Niagara Region (the Respondent being on social assistance) on the previous leave to appeal motion. Justice Parayeski dismissed the motion, holding that as a result of recent changes to the Rules of Civil Procedure,² a motion for leave to appeal is required to be heard in writing, rather than in open court. That dismissal was without prejudice to Mr. Anstey’s bringing a motion in writing in St. Catharines.

3I agree with Justice Parayeski that a motion for leave to appeal to the Divisional Court is required to be heard in writing. However, for the reasons set out below, I have concluded that leave to appeal is not required in this case, an issue that was not considered in the previous decision. Therefore, Mr. Anstey’s current motion cannot proceed in its present form. However, rather than dismissing this motion outright, I am instead staying further consideration of the motion as currently constituted. I am also providing Mr. Anstey with leave to amend the motion to permit it to proceed as a motion to extend the time to appeal Justice MacPherson’s order. With the additional terms set out below, I see no significant prejudice to Mr. Anstey in proceeding in this manner, since it does not appear that the Respondent has been properly served with the motion before me. In this regard, I note from the affidavit of service that Mr. Anstey provided the material for this motion to the Niagara Region by registered mail. However, the affidavit of service does not indicate that the Respondent herself was served.

4By way of explanation, subrule 62.02(2) of the Rules of Civil Procedure, which came into effect January 1, 2015, requires that a motion for leave to appeal to the Divisional Court under clause 19(1)(b) of the Courts of Justice Act³ to be heard in writing, without the attendance of parties or lawyers. The motion before me, like the previous motion before Justice Parayeski, is framed as a motion for leave to appeal.

5The difficulty is that clause 19(1)(b) of the Courts of Justice Act requires leave to be obtained in order to appeal from an interlocutory order of a Superior Court judge, which would include a “temporary order” issued in family law proceedings. Justice MacPherson’s order was in fact a final order. That order may be appealed to the Divisional Court without obtaining leave, as provided for in clauses 19(1)(a) and 19(1.2)(b) of the Courts of Justice Act and section 40 of the Interjurisdictional Support Orders Act, 2002. Clause 19(1)(b) of the Courts of Justice Act has no application in this case.

6The problem that Mr. Anstey now faces is that even though he would be entitled to appeal to the Divisional Court without leave, he is out of time to do so. Pursuant to subsection 40(2) of the Interjurisdictional Support Orders Act, 2002, an appeal from an order under that statute must be commenced within 90 days. This time period is an exception to the general rule in subrule 61.04(1) of the Rules of Civil Procedure, which would otherwise require an appeal to an appellate court to be commenced within 30 days.

7In this case, in order to proceed with his appeal, Mr. Anstey would be required to first obtain an order from a judge of the Divisional Court granting an extension of time to file an appeal. The proper procedure for seeking such an order would be to proceed by way of a notice of motion seeking an extension of time to appeal, which may be brought in St. Catharines in this case. Except with the consent of the parties, that motion would ordinarily be heard in court rather than in writing. If an extension is granted, the Applicant would then be entitled to proceed with an appeal, which would be heard in court on its merits by a panel of three Divisional Court judges in Hamilton.

8Even though I concluded that the motion before me could not proceed in its present form, I was concerned that in the circumstances of this case, outright dismissal of the motion would not serve the interests of justice. Although framed as a motion for leave to appeal, the motion material provides information that would be relevant to the issue of whether the court should grant an extension of time to file an appeal. Before a decision is made on its merits on that issue, it is of course necessary to provide the Respondent (and the Niagara Region) with an opportunity to respond to Mr. Anstey’s position.

9From Mr. Anstey’s motion material, it appears that Mr. Anstey has been diligent in his efforts to proceed with an appeal, which is a factor (although not the only factor) to be considered in determining whether an extension of time to file an appeal should be granted. In particular, Mr. Anstey claims that even though Justice MacPherson’s order is dated July 30, 2014, he did not receive notice of it until September 22, 2014. He claims that he called the Superior Court office in St. Catharines the same day, and was told by a filing clerk that the appeal period was 30 days, a period that had already expired if measure from the date of the decision. Mr. Antstey then prepared an “Appellant’s Factum”, which he claims to have sent by registered mail to the Divisional Court office in Hamilton on October 10, 2014. The Registrar’s office returned those documents to Mr. Anstey, accompanied by a letter from the Registrar’s office dated October 30, 2014. That letter set out a number of grounds for returning the appeal material, including the following: (i) an appeal to the Divisional Court is commenced by a Notice of Appeal (Form 61A); (ii) Notice of Appeal must be served within 30 days of a final order and filed within 10 days thereafter, and “extensions of time” may only be granted by order of a Divisional Court judge; and (iii) since the order was released on July 30, 3014 and the Registrar did not receive Mr. Anstey’s document package until approximately October 24th, 2014, he was required to bring “a motion for leave to appeal.” After a filing further material with the court, Mr. Anstey subsequently received an email from the Registrar’s office dated December 12, 2014, in which he was advised, among other things, that the motion was required to be heard in open court.

10From the foregoing, even interpreting the facts in the manner least favourable to Mr. Anstey, it appears that Mr. Anstey’s initial appeal material was in fact received by the Registrar’s office within the 90 day appeal period. The appeal period commenced no earlier than July 30, 2014, the date of Justice MacPherson’s final order. The Registrar received Mr. Anstey’s initial appeal material (although not in proper form) no later than “approximately October 24, 2014”, within 90 days of Justice MacPherson’s order. As well, assuming an extension of time to file an appeal was required, it also appears that the Registrar’s letter dated October 30, 2014 may have contributed to the confusion relating to the proper procedure to be followed, since it refers correctly to “extensions in time” to file an appeal and also refers incorrectly to “a motion for leave to appeal.” Mr. Anstey has also received contradictory information from the court as to whether the motion should proceed in open court or in writing. In this regard, I understand that Mr. Anstey has already travelled to Ontario twice for hearing dates for the first leave to appeal motion.

11In all the circumstances, I have concluded that instead of dismissing the motion before me, it is appropriate to stay further consideration of the motion in its present form. Mr. Anstey will have leave to amend the motion to permit it to proceed as a motion to extend the time to file an appeal. As previously indicated, rather than being heard in writing, a motion of that nature would ordinarily be heard in court, after service on the responding parties. However, in the circumstances of this case, Mr. Anstey will be permitted to appear for hearing of the amended motion by way of conference telephone, instead of appearing in person. Such arrangements may be made through the Trial Coordinator’s office in St. Catharines.

12Accordingly, an order will go as follows:

1. Except as otherwise provided in this order, the Applicant’s motion for leave to appeal the final order of Justice MacPherson dated July 30, 2014 is stayed.

2. The Applicant has leave to amend that motion in order to permit it to proceed as a motion for extension of time to file an appeal from the final order of Justice MacPherson.

3. Unless the parties agree otherwise, the motion as amended shall be returnable in court on a date to be arranged with the Trial Coordinator in St. Catharines. The Applicant has leave to appear by conference telephone for hearing of the amended motion, to be arranged through the Trial Coordinator.

4. The Applicant shall serve a copy of this endorsement on the Respondent together with any amended notice of motion and supporting material. The Respondent may be served by registered mail addressed to Jennifer Laffin at 20 – 2 Abbot Street, St. Catharines ON L2P 2G3. The Applicant shall also send a copy of this endorsement together with such amended motion material to counsel for the Niagara Region by registered mail.

The Honourable Mr. Justice R.A. Lococo

Footnotes

1. 1S.O. 2002, c. 13.
2. 2R.R.O. 1990, Reg. 194.
3. 3R.S.O. 1990, c. C.43.