Court of Appeal for Ontario

Date: 2019-08-14 Docket: M50429 (M50335)

Judges: Pardu, Paciocco and Zarnett JJ.A.

Between

Michael Lawrence Smith Applicant

and

Constance Smith Respondent

Counsel

Michael Smith, in person

No one appearing for the respondent

Heard: August 12, 2019

Reasons for Decision

[1] Michael Lawrence Smith applies to set aside the decision of Benotto J.A. of May 6, 2019, denying him an extension of time to seek leave to appeal a Divisional Court decision of November 24, 2010. That decision substantially denied Mr. Smith's appeal from support, equalization payments and associated costs orders made on April 30, 2008, after a Superior Court trial. Mr. Smith also seeks additional relief before us, including extensions to file leaves to appeal and notices to appeals relating to interim support orders, as well as orders for the production and use of transcripts.

[2] We were not unaffected by the impact that Mr. Smith's mental health and marital breakup have had on him. However, our function, as an appeal court, is constrained by law.

[3] We cannot extend the time to appeal the interim support and related costs orders since we do not have jurisdiction to do so. The decision from July 2010 denying Mr. Smith leave to appeal those interim support orders is moot; even before that leave to appeal application was initially brought those interim orders had already been overtaken by the earlier, final orders made on April 30, 2008. As for the transcript requests, they are not properly included in this application to review Benotto J.A.'s decision. Mr. Smith is unrepresented and so it is not surprising that he included each of these requests. However, even if we were thoroughly persuaded of their merits we could not provide the relief Mr. Smith is requesting.

[4] Nor is there any basis upon which we could properly interfere with Benotto J.A.'s conclusion that Mr. Smith should not be granted the extensions related to leave to appeal of the Divisional Court appeal decision. In order to obtain those extensions Mr. Smith must show that they are in the interests of justice. Important considerations include whether the applicant formed an intention to appeal within the relevant appeal period, the length and explanation for the delay, prejudice to the respondent, and the merits of the appeal. Benotto J.A. concluded that Mr. Smith had not demonstrated before her an intention to appeal during the appeal period or that his proposed appeal has merit. These decisions find support in the record. There is no evidence confirming an intention to appeal during the appeal period, and the challenges Mr. Smith make to the decision are fact-based and bear no realistic prospect of success. Close to a decade has passed since the Divisional Court appeal was denied. Benotto J.A.'s decision was correct and we agree with it.

[5] If there has been a material change in Mr. Smith's financial circumstances compared to what was contemplated at the time of the original support order, Mr. Smith's avenue for relief lies in an application for variation or termination of his support obligations, not an application for an extension of time to serve leave to appeal.

[6] The motion is therefore denied. As no one responded to this motion, there is no costs order to be made.

G. Pardu J.A.

David M. Paciocco J.A.

B. Zarnett J.A.