Court of Appeal for Ontario

Date: 2021-06-21 Docket: M52505 (C67833)

Before: Brown J.A. (Motions Judge)

Between:

Barbara Elizabeth Burns Applicant (Respondent/Responding Party)

and

James Alexander Brown Respondent (Appellant/Moving Party)

Counsel: James A. Brown, acting in person Christina Doris, for the responding party

Heard: June 17, 2021 by video conference

Endorsement

Overview

[1] This is a motion in a family law appeal, in which the main ground of appeal concerns the amount of parenting time awarded to the appellant father, James Brown. He seeks an order extending the time for the perfection of his appeal until July 30, 2021. The respondent mother, Barbara Burns, opposes his request.

[2] At all material times during this proceeding, the appellant was a practising family law lawyer.

Background

[3] The decision under appeal was released on November 22, 2019, following a six-day trial.

[4] The appellant filed a notice of appeal on December 17, 2019. The grounds of appeal fall into two categories: (i) the trial judge committed errors, with a monetary effect of just over $10,000, in fixing child support arrears and determining inter-party debt; and (ii) the trial judge erred in failing to order equal parenting time in respect of the parties’ child who, at the time of the trial, was 4.5 years old.

[5] In January 2020, the appellant ordered the trial transcripts.

[6] At the end of January, he received correspondence from this court about its settlement conference program. The appellant wanted to take advantage of the program. In March 2020, the respondent agreed to participate. When the appellant followed up with the court office in late March, he was advised that a conference could not be held because of the court’s suspension of operations during the initial stages of the pandemic.

[7] At that point, the appellant contacted the transcriptionist and unilaterally directed that preparation of the transcripts be suspended.

[8] This court suspended operations on March 16, 2020 and resumed some hearings the following month. Various practice directions issued by the court informed the public and the Bar that while the timelines for serving and filing documents were suspended from March 16 until July 15, 2020, those timelines were reinstated effective July 16, 2020.

[9] However, it was not until early November 2020 that the appellant contacted the court office to renew his request for a settlement conference.

[10] Although the appellant did not receive a response from the court to his settlement conference inquiry until May 14, 2021, on January 4, 2021 the court sent the parties a Notice of Intention to Dismiss Appeal for Delay if the appeal was not perfected by April 27, 2021. The appellant deposes that he did not receive the Notice although it bears his office address; the respondent deposes that she received it.

[11] When the appellant renewed his request for a settlement conference in May 2021, the respondent advised that she no longer consented to a conference. As a result, on May 18, 2021, at the direction of Benotto J.A., the appellant was advised that a settlement conference would not be held and that he was required to perfect his appeal within seven days, by May 25, 2021.

[12] He did not do so. Indeed, he could not do so as a result of his earlier unilateral suspension of the preparation of the trial transcripts. The appellant has since asked the transcriptionist to continue with the transcript preparation. He advises that he has received transcripts for all but one day of the trial and anticipates the last transcript will arrive by the end of this month.

Analysis

[13] The overarching principle is that an extension should be granted if the justice of the case requires.

The length of the delay and appellant’s explanation for the delay

[14] The appellant submits that he acted reasonably in unilaterally suspending the preparation of the transcripts and his delay in perfecting the appeal is explained by court delays resulting from COVID-19 and his desire to obtain a settlement conference.

[15] In assessing the reasonableness of the appellant’s explanation, it is significant that at all material times he was a practising family law lawyer. I am not persuaded that the appellant has provided an adequate explanation for his over one-year delay in perfecting his appeal.

[16] First, the settlement conference materials the appellant received from this court in January 2020 clearly state that to request a pre-hearing settlement conference the parties must submit a form titled “Joint Request for Pre-hearing Settlement Conference.” The appellant did not do so.

[17] Second, those materials also clearly state that “the parties must still comply with rule 61.05(5) of the Rules of Civil Procedure.” That rule requires the appellant to file proof that he has ordered a transcript of all relevant evidence. While the appellant did so, he unilaterally suspended the preparation of the transcripts, an act inconsistent with the obligation imposed by r. 61.05(5), which contemplates the continuing preparation of transcripts once ordered. The respondent did not consent to the suspension. That unilateral suspension has materially contributed to the delay in perfecting the appeal.

[18] Third, the appellant failed to pursue, with the required diligence, the availability of a settlement conference and the perfection of his appeal. By mid-July 2020 this court’s normal operations had resumed, relying on videoconference technology, and the timelines under the rules were reinstated. Yet the appellant waited months before making a follow-up inquiry in November 2020 and then essentially sat on his hands until he received the May 14, 2021 email from the court. Regardless of the timeliness of communications from the court office, an appellant is obligated to pursue the steps in an appeal with due diligence. Mr. Brown did not.

[19] Fourth, the respondent has submitted evidence of the appellant’s litigation conduct leading up to the trial. In an endorsement dated July 3, 2019, about a year and a half after the respondent had initiated her application (Burns v. Brown, 2019 ONSC 4004), W.L. MacPherson J. found that the appellant was litigating in bad faith stating, at para. 27 of her reasons:

There are ample reasons to make a finding of bad faith which include:

a) bringing the constitutional challenge and refusing to abandon same, despite being given opportunities to do so;

b) the [appellant] abandoning several claims (orders of May 25, 2018 and November 6, 2018 to remain in effect and only be adjusted as of the March 2019; request to amend pleadings; disclosure of Canada Revenue Agency documents by applicant) during the motion in response to the court’s inquiry only, without any advance notice to the applicant or her counsel;

c) the amount of time taken to deal with the motion including preparation of multiple factums and two-and-half-days of argument;

d) the [appellant] disputing the consent order of November, 6, 2018 suggesting that he was under duress in signing same and misrepresenting to the court that Nightingale J. had directed the applicant as to the commencement date of reduced spousal support;

e) the [appellant] alleging fraud and misrepresentation by the applicant’s former counsel, which was totally unfounded;

f) the [appellant] alleging fraud by the applicant’s current counsel during argument, without any prior notice or foundation, and only retracting same upon questioning from the court;

g) the main objective of the motion amounted to nothing more than “an appeal in disguise.”

[20] These judicial comments disclose that the appellant has engaged in various forms of delay tactics during this proceeding. That, in turn, informs my assessment of his conduct on this appeal since March 2020. I regard the appellant’s delay in perfecting his appeal not as the product of forces beyond his control or attributable to the respondent but as indicative of an indifference to his obligation, as an appellant, to perfect his appeal with all due diligence.

[21] The appellant’s inordinate delay in perfecting his appeal and the absence of a reasonable explanation for most of that delay weigh heavily against his request for an extension. As well, they indicate that he did not maintain an intention to appeal throughout the relevant period of time: Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, at para. 5.

Prejudice to the respondent

[22] The respondent deposes that the appellant’s delay causes harm to her and their daughter, who is entitled to certainty when it comes to her parenting schedule. As well, the delay causes harm to the respondent due to the significant emotional and economic cost of litigating against the appellant who, as a self-represented lawyer litigant, does not incur the legal costs the respondent must incur.

Merits of the appeal

[23] If an extension is not granted, the appellant’s appeal will be dismissed as he has not complied with the direction of Benotto J.A. communicated on May 18, 2021 to perfect his appeal by May 25, 2021. Consideration therefore must be had of the merits of his appeal.

[24] The appellant’s grounds of appeal concerning the calculation of child support arrears and the amount of debt he owed the respondent are questions of fact, which are subject to a deferential standard of review. The appellant’s notice of appeal does not assert that the trial judge made a palpable and overriding error of fact in either regard.

[25] While the appellant alleges that the trial judge misapprehended the evidence regarding his child support arrears, the trial judge dealt at length with the issue of child support at paras. 54-63 of her reasons. The trial judge’s reasons disclose, at para. 64, that her calculation of the amount of arrears was based on the parties’ consensus as to the amount of support the appellant had paid:

It is acknowledged by both parties that James contributed to child support during this period in the amount of $9580. The arrears of support for this period are, therefore, $14,835 less $9580, which equals $5255.

[26] As to the amount of the debt payable by the appellant, I see no merit in this ground of appeal as the trial judge accepted the appellant’s position at trial writing, at para. 82:

James’ position is that he will pay $5000 to Barbara. That position is accepted. That amount, when paid, is enough to satisfy his obligation regarding all Visa expenses, all Jeep insurance payments and all Jeep loan payments up to the date of sale.

[27] In respect of the appellant’s ground of appeal alleging inadequate parenting time, the trial judge spent considerable time in her reasons dealing with the issues regarding the child. She ordered joint custody but directed that the 4.5 year old child primarily reside with the respondent mother, reflecting the long-standing status quo. The trial judge specifically addressed the appellant’s claim for equal parenting time at paras. 46-51:

James asserts that the application of the maximum contact principle mandates that Joya should share time equally between her parents. This submission ignores or glosses over the aspect of the test, which specifies that a child should have as much contact with each parent as is consistent with the best interests of the child.

James provided virtually no evidence as to why an equal timesharing regime would be in Joya’s best interest compared to the status quo (expanded to include a midweek overnight).

James asks for a 2-2-5 parenting regime. He led no specific evidence to explain how he would implement this schedule, what changes this would entail for Joya, or what benefits this would provide for Joya.

James also led no evidence to outline or highlight deficiencies in the parenting schedule proposed by Barbara. Barbara proposes that James have Joya on alternate weekends and one overnight per week. The midweek overnight is a change from the current schedule, which includes two non-overnight evenings per week.

James’ position is simply that Barbara’s proposal is not enough and shared parenting should be the default.

In the absence of any evidence establishing for the child additional benefits in a pure shared parenting regime, where the child is thriving and has positive relationships with each parent and with her extended family, the status quo is to be respected.

[28] In his notice of appeal, the appellant does not identify any specific legal or factual error made by the trial judge in arriving at her parenting order. The notice simply baldly asserts that the trial judge “erred in fact and law in imposing an Order that departed significantly from equal parenting time.”

[29] When considered as a whole, I regard the appellant’s grounds of appeal as very weak. As a result, I do not regard the prejudice to the appellant from denying an extension to outweigh his inordinate delay and lack of reasonable explanation for the delay.

Conclusion

[30] Assessing the circumstances as a whole, I conclude that the justice of the case points to denying the appellant an extension of time to perfect his appeal: his delay has been inordinate; he has not provided a satisfactory explanation for the delay; his conduct indicates that he did not maintain an intention to pursue his appeal after filing the notice of appeal; his desultory litigation conduct reflects a pattern of delay throughout this litigation; the merits of his appeal are very weak; and there is a strong need for finality in respect of the parenting arrangements for the young child.

Disposition

[31] Accordingly, I dismiss the appellant’s motion.

[32] The appellant shall pay the respondent her costs of this motion in the amount of $2,500, inclusive of disbursement and applicable taxes, payable within 30 days of the release of these reasons.

“David Brown J.A.”