DATE: 20050916

DOCKET: M32860

COURT OF APPEAL FOR ONTARIO

RE:

NICHOLAS JOHN MASTROBUONO (Petitioner/Respondent) –and- CHRISTINE DIANE MASTROBUONO (Respondent/Appellant)

BEFORE:

LASKIN J.A.

COUNSEL:

Christine Diane Mastrobuono

the moving party, in person

Paul R. Beaudet

for the responding party, Nicholas John Mastrobuono

HEARD:

September 6, 2005

E N D O R S E M E N T

[1] Mrs. Mastrobuono has brought a motion to extend the time for filing her notice of appeal from the judgment of DeSotti J., dated April 7, 2005. Mr. Mastrobuono opposes the motion.

[2] I grant the motion. Well within the thirty-day appeal period, Mrs. Mastrobuono showed a firm intention to appeal. However, her notice of appeal, drafted with the assistance of a lawyer, was apparently not in a form acceptable to our front office and the court would not accept it for filing. Mrs. Mastrobuono nonetheless maintained her intention to appeal. Unfortunately, her revised notice of appeal was out of time. When she sought the responding party’s consent to its late filing, consent was refused.

[3] Mrs. Mastrobuono has adequately explained her delay. She is self-represented, but has sought advice from solicitors from time to time. Regrettably, the advice she received on the proper form of the notice of appeal did not accord with the rules. She should not be held accountable for the defects.

[4] Lastly, in my view, “the justice of the case” requires granting an extension. Mrs. Mastrobuono has moved reasonably promptly, the delay is relatively short, and I am not persuaded Mr. Mastrobuono has been prejudiced by the delay.

[5] Mr. Mastrobuono raises three main arguments why the extension should be refused. First, he submits that there is no merit in the appeal from the equalization award, because in appealing that award Mrs. Mastrobuono seeks to undo an agreement she made. Even if there were merit in this submission, Mrs. Mastrobuono has also appealed the spousal support award. I do not have the full record of the trial proceedings and I am in no position to say that either ground of appeal is so unmeritorious that the important right given to all unsuccessful litigants to appeal an adverse finding should be denied.

[6] Second, Mr. Mastrobuono submits that Mrs. Mastrobuono has not come to court with clean hands because on the proceedings for the sale of the matrimonial home, she misled the trial judge and thus prevented the sale from occurring. Mr. Mastrobuono’s complaint seems to be that Mrs. Mastrobuono told the trial judge she was appealing his judgment when no notice of appeal had been filed. I am not prepared to find that this was a deliberate misrepresentation. In Mrs. Mastrobuono’s mind, she undoubtedly felt she had appealed DeSotti J.’s judgment. She had served a notice of appeal within the prescribed time. Only formal defects prevented its filing.

[7] Third, and related to the second submission, Mr. Mastrobuono submits that Mrs. Mastrobuono deliberately delayed bringing her motion to extend for about three weeks to avoid the sale of the home. I do not accept this submission. Mrs. Mastrobuono moved reasonably promptly. Moreover, the order for the sale of the home is not automatically stayed by the delivery of a notice of appeal. Mr. Mastrobuono is free to take whatever proceedings he deems appropriate, subject of course to any court orders.

[8] The time for filing the notice of appeal is extended to Monday, September 26, 2005. I do not believe that this is an appropriate case for costs, and I therefore order no costs of the motion.