COURT OF APPEAL FOR ONTARIO

CITATION: Denomme v. McArthur, 2013 ONCA 694

DATE: 20131114

DOCKET: M43002 & M43003

Feldman J.A. (In Chambers)

BETWEEN

M43002

Kelly Jane Denomme

Applicant (Respondent)

and

Corey Wilson McArthur

Defendant (Appellant)

AND BETWEEN

M43003

Paul Denomme

Plaintiff (Respondent)

and

Kelly Jane Denomme

Defendant (Respondent)

and

Corey Wilson McArthur

Defendant (Appellant)

Anna Towlson, for the appellant, Corey Wilson McArthur

Robert K. Bickle, for the respondent, Kelly Jane Denomme

Clarke L. Melville, for the respondent, Paul Denomme

Heard: October 28, 2013

On appeal from the judgments of Justice Dale Parayeski of the Superior Court of Justice, dated May 21, 2013, with reasons reported at 2013 ONSC 2834 and 2013 ONSC 2895.

Feldman J.A.:

[1] This is a motion by the husband, Corey Wilson McArthur, for an extension of time to serve and file the notice of appeal in two actions: a matrimonial action involving issues of custody, access and financial matters; and an action by the wife’s father, Paul Denomme, to assert and collect a debt from the husband and the wife, Kelly Jane Denomme.

[2] The reasons in both actions were released on May 21, 2013. The husband instructed his lawyer to appeal both decisions and she advised the wife’s lawyer of this intention during a chance meeting on June 3, 2013. At that time, the wife’s lawyer advised that the husband’s lawyer should be sure to comply with timelines as it would be difficult for her to obtain instructions for an extension. The notice of appeal was served one day late on June 21, 2013, as the husband’s lawyer erred by not counting Victoria Day as part of the 30-day appeal period.

[3] The husband’s lawyer asked the wife’s lawyer and the wife’s father’s lawyer for an extension of time to file the notices of appeal. They asked for a letter explaining the delay and outlining the merits of the appeal. They then refused to consent to the extension.

[4] The husband did not move immediately in this court for the extension. Instead, he sought a stay pending appeal from a Superior Court judge, which was first adjourned and ultimately adjourned sine die because there was not yet any appeal. He also applied to the trial judge to settle the terms of the order on the issue of access to the children, claiming that the reasons for judgment were internally inconsistent on the issue. The trial judge ultimately reaffirmed his finding that he was implementing the recommendation of the Office of the Children’s Lawyer that has the effect of somewhat reducing the father’s access time with the children.

[5] The order was settled on August 9, 2013, and since that time, the three young children have been following the new access schedule, which was the one suggested by the report to the court from the Office of the Children’s lawyer. They have also started school. In an affidavit filed on the motion, the mother deposes that the children are thriving under the new schedule and the stability it provides.

[6] The rest of the delay in bringing this motion was attributed to accommodating the holidays of all counsel.

[7] The factors that a court considers in deciding whether to grant an extension of time to appeal are: 1) whether the appellant formed an intention to appeal within the relevant period; 2) the length of the delay and the explanation for it; 3) any prejudice to the respondent; 4) the merits of the appeal, and 5) whether the justice of the case requires that time be extended: Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.), at para. 16. In a case involving children, the justice of the case is reflected in the best interests of the children: Lombardi v. Mehnert, 2009 CanLII 20352 (ON SC), [2009] O.J. No. 1715, 67 R.F.L. (6th) 167 (Ont. S.C.).

[8] The husband did intend to appeal within the time limit. The delay was initially only one day, and the explanation was a counting error by the husband’s lawyer. A one-day delay would not have caused any prejudice to the wife or to her father in his action. I also note that rules of professional conduct and civility generally require that counsel agree to reasonable requests from opposing counsel, including for extensions of time, so long as doing so would not prejudice the legitimate interests of the client: see Law Society of Upper Canada, Rules of Professional Conduct, rule 6.03(2) and related commentary; The Advocates’ Society, Principles of Civility for Advocates, principle 13.

[9] The respondents on this motion submit that there is no merit to the appeals. The appeals appear to challenge the trial judge’s appreciation of the evidence and his factual conclusions.

[10] As this court is required to accord a high degree of deference to a trial judge’s findings of fact, it is difficult to see the merit in the appeals. However, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side. That is the case with respect to the financial issues in the matrimonial action and the debt action.

[11] However, the same cannot be said about the custody and access ruling by the trial judge. There has been a four-month delay altogether, and, since August 9, the children have been on an effective access schedule. They are thriving under the stability of that arrangement, which is the one that was recommended by the social worker from the Office of the Children’s Lawyer.

[12] The husband disputes this. He says that the social worker intended her use of the October schedule as an example only and that in other months where the father has more off-work time, it was intended that he have more access time. This argument was made to the trial judge when they attended to settle the order. The trial judge disagreed. He understood the argument and the evidence of the social worker and he made his decision and his ruling. I see no basis for this court to intervene. And if circumstances change, the husband may apply for a variation.

[13] In my view, the justice of the case does not call for an extension to be granted for the portion of the judgment that deals with custody and access.

[14] An extension of time to November 20, 2013, is granted to the husband to file the notice of appeal in the debt action and to serve and file an amended notice of appeal in the matrimonial action to appeal only the financial orders.

[15] Costs in the debt action are payable to the applicant husband in the amount of $5000 inclusive of disbursements and HST. As success on the motion in the matrimonial action was divided, there shall be no order as to costs of that motion.