Issai v. Rosenzweig, 2011 ONCA 112

CITATION: Issai v. Rosenzweig, 2011 ONCA 112

DATE: 20110208

DOCKET: M39536 (C52822)

COURT OF APPEAL FOR ONTARIO

Weiler J.A. (In Chambers)

BETWEEN

Amparo Marlen Rodriguez Issasi

Applicant (Respondent/Responding Party)

and

Kenneth Espinal Rosenzweig

Respondent (Appellant/Moving Party)

Jeffery Wilson, for the appellant/moving party

Philip Epstein, for the respondent/responding party

Heard: January 6, 2011

On appeal from the order of Justice George Czutrin of the Superior Court of Justice, dated September 21, 2010, and on a motion to extend the time to perfect the appeal.

Weiler J.A. (In Chambers):

[1] The appellant, Kenneth Espinal Rosenzweig, seeks an order granting leave to extend the time to perfect his appeal to the day following the determination of this motion. The respondent, Amparo Marlen Rodriguez Issasi, opposes the motion.

[2] Rule 3.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court may extend the time prescribed by the rules on such terms as are just.

[3] The motion arises out of an appeal of an order made pursuant to Articles 3 and 12 of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the "Hague Convention"). The order declared that Josette Issasi Rosenzweig, then aged 13, was being wrongfully retained in Ontario by her father, Mr. Rosenzweig, and ordered that she be returned to her habitual residence with her mother, Ms. Issasi, in Cancun, Quintana Roo, Mexico. That order has been carried out.

[4] Although this motion involves a request for leave to extend the time to perfect an appeal, it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal: see Monteith v. Monteith, 2010 ONCA 78, [2010] O.J. No. 346, at para. 11. They are:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of the delay and explanation for the delay;

(3) any prejudice to the respondent;

(4) the merits of the appeal; and

(5) whether the "justice of the case" requires it.

See Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2011 (Markham: Lexis Nexis Canada Inc., 2010), at p.580; Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.), at para. 16; and Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14.

[5] The first two factors may be considered together. For the first factor, since this is a motion for an extension of time to perfect an appeal, instead of asking whether the appellant formed an intention to appeal, I would ask whether the appellant maintained that intention to appeal within the relevant period. I must also consider whether the appellant has provided a reasonable excuse for the delay in perfecting the appeal.

[6] Mr. Rosenzweig's counsel sought to perfect the appeal on December 15, 2010 but was advised by this court that this was one day late. Rule 61.09(1) governs the time within which an appeal is to be perfected. The rule provides that the time to perfect an appeal is 30 days after filing the notice of appeal where no transcript of evidence is required for the appeal (r. 61.09(1)(a)), and 60 days "after receiving notice that the evidence has been transcribed" where a transcript of evidence is required for the appeal (r. 61.09(1)(b)). Since Mr. Rosenzweig's counsel had filed the Appellant's Certificate stating that a transcript of the motion hearing was required, his counsel mistakenly understood that the time to perfect the appeal was 60 days after receiving notice that the transcript of the hearing was ready.

[7] On the day that Ms. Issasi's application was before the motion judge at first instance, counsel's submissions and the judge's comments were recorded. A transcript was ordered for the appeal. While Mr. Rosenzweig's counsel argues this is "evidence" such that rule 61.09(1)(b) applies and he does not require leave to perfect, I do not agree. Although counsel may require a transcript for purposes of arguing the appeal, I am satisfied that the term "evidence" as used in the rules refers to the transcription of evidence that was sworn or affirmed. Thus, rule 61.09(1)(a) applies and the deadline for perfection was December 14, 2010.

[8] Opposing counsel refused to give consent to perfect the appeal one day late for reasons I shall discuss when dealing with the justice of the case. Suffice it to say that the first two factors that must be considered, in this case, whether the intention to appeal was maintained, and an explanation for the delay, are met.

[9] As for the third factor, Ms. Issasi has filed no personal affidavit in response to the motion, and thus I have no basis on which to infer prejudice. The requested extension of time to perfect is brief.

[10] The fourth factor I am required to consider is the merits of the appeal, not with a view to determining whether the appeal will succeed, but to determine whether it has so little merit that the court could reasonably deny the important right of an appeal: see Duca Community Credit Union Ltd. v. Giovannoli et al. (2001), 2001 CanLII 24017 (ON CA), 142 O.A.C. 146 (C.A.), at para. 15.

[11] The judge at first instance gave no reasons apart from the order itself. This may have been because he accepted the undisputed evidence before him. The mother, Ms. Issasi, who had sole custody of the child, sent her to visit her father, Mr. Rosenzweig, with her maternal grandmother and uncle. The grandmother and uncle returned to Mexico on the scheduled flight date without the child. The child remained in Canada, allegedly to receive dental attention, but it soon became clear Mr. Rosenzweig would not return her. Although Mr. Rosenzweig was served with the application by mail at his address in Norway and by regular service on his sister at her home in Toronto, he filed no material in response opposing it. The lack of any reasons raises a concern that on the whole of the record, the proceedings may not permit appellate review. A complication is the fact that, at the time of the hearing, the child had been granted status as a Refugee. I cannot say that the appeal has so little merit that the right of appeal should be denied.

[12] The real issue on this motion is the final factor, the justice of the case. Counsel for Ms. Issasi submits that the appeal itself is an abuse of process inasmuch as Mr. Rosenzweig is not the real party behind the appeal. The child's aunt, who is Mr. Rosenzweig's sister, Josette Rosenzweig Espinal (JRE), sought to be added as a respondent to Ms. Issasi's application under the Hague Convention but her application was refused. She did not appeal that decision.

[13] The endorsement of Klowak J. rejecting JRE's application is instructive on the issue of whether Mr. Rosenzweig is the appellant. Klowak J. found that when the child came to Canada to visit her father, she lived with JRE and her spouse. Without notice to Ms. Issasi, JRE initiated and arranged for the child to apply for refugee status in this country. In support of that application, they obtained a psychological report to the effect that the child was fearful of returning to Mexico because of her mother's abusive conduct over the years in that country.[^1] The child was granted refugee status without any attempt to notify Ms. Issasi. Mr. Rosenzweig did not respond to the Hague Convention proceeding. He himself had been refused refugee status in Canada and left for Norway before being deported. He was seeking refugee status in Norway. Klowak J. observed that Mr. Rosenzweig "seems to have had little to do with the child while in Mexico, mother had sole custody, and he was delinquent in his support payments."

[14] Mr. Rosenzweig has sworn no affidavit in support of the application to extend the time within which to perfect the appeal. The affidavit of counsel's legal assistant has been filed. There is also in the record a letter signed by JRE, stating, "Please find enclosed Mr. Rosenzweig's Notice of Appeal and Appellant's Certificate."

[15] Ms. Issasi's submission is that JRE is doing indirectly what she has no standing to do directly: that is, appeal the order returning the child to Mexico under the Hague Convention.

[16] While the material in the record certainly raises the suspicion that that may be so, I am of the opinion that the issues of standing and abuse of process are also best dealt with as a preliminary issue by the panel hearing the appeal.

[17] Accordingly, leave to extend the time within which to perfect the appeal is granted and the time to perfect the appeal is extended to February 10, 2011.

[18] Mr. Rosenzweig's counsel also requested that the appeal be expedited. All appeals of this nature are expedited. I am confident that a suitable early date to hear this appeal will be found. In the event that counsel wish an even earlier date than that proposed, counsel should arrange an appointment with the list judge.

[19] Neither party is seeking costs. I understand that both counsel are acting pro bono and wish to commend them for their willingness to do so.

"Karen M. Weiler J.A."

[^1]: Before me, counsel for Ms. Issasi pointed out that the record shows that at the same time the child was emailing her mother and telling her how much she missed her.