Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230609 DOCKET: COA-23-OM-0148

Gillese J.A. (Motions Judge)

BETWEEN

Aaron Carl Leybourne Applicant (Moving Party)

and

Shannon Elizabeth Powell Respondent (Responding Party)

Counsel: Frances M. Wood, for the moving party Michael Purves-Smith, for the responding party

Heard: June 9, 2023

Endorsement

[1] This motion arises in the context of a family law proceeding. The parties were married in 2013, separated in 2016, and divorced in 2019. There is one child of the relationship who is approximately 9 years old. A final custody and access order was made in October 2018. The responding party to this motion, Ms. Powell, brought a variation application which resulted in the order of Mossip J., dated November 30, 2022, and reported at 2022 ONSC 6739 (the “Order”).

[2] In the motion before this court, Aaron Leybourne seeks an extension of time to file his notice of appeal against the Order (the “Motion”). He prepared his Notice of Appeal on December 18, 2022, and attempted to have it served by the end of December 2022. Had it been served by the end of 2022, he would have been in compliance with the prescribed time limit. However, service was not effected until January 17, 2023. He brought this Motion in May 2023. The delay in bringing the Motion is not well-explained.

[3] Ms. Powell opposes the Motion because she says it lacks merit and because the delay and appeal process are causing the child significant prejudice, in terms of well-being and academic performance.

[4] The factors to be considered in deciding whether to extend time to appeal are well-known: whether Mr. Leybourne had a bona fide intention to appeal within the prescribed period; the length and explanation for the delay; any prejudice to Ms. Powell from the delay; the merits of the proposed appeal; and, whether the justice of the case requires an extension of time.

[5] I am satisfied that Mr. Leybourne meets the first and second criteria. However, in my view, there is no merit to his proposed appeal and, overall, the justice of the case does not require that an extension of time be given.

[6] The Order was made because the application judge found there had been a material change in circumstances affecting the child’s best interests. With the best interests of the child squarely in mind, the application judge gave Ms. Powell sole decision-making authority over the child and continued the order that the child reside primarily with her. The Order continues Mr. Leybourne’s supervised parenting time but suspends it if Mr. Leybourne consumes alcohol during or 24‑hours before the parenting time. The Order also requires Mr. Leybourne to contribute 50% of the reasonable and necessary special expenses of the child and orders him to pay child support.

[7] The appeal has virtually no chance of success because it rests primarily on overturning the application judge’s factual findings, which are fully justified on the record. The factual findings include those based on Mr. Leybourne’s repeated breaches of the no-alcohol provision of prior court orders, concerns about his mental health, and overwhelming evidence of abusive communications. The justice of this case, which includes a consideration of the child’s best interests, does not warrant granting an extension of time.

[8] Accordingly, the Motion is dismissed.

“E.E. Gillese J.A.”