Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20241029 DOCKET: M55439 & M55440 (COA-24-CV-0624)
Gomery J.A.
BETWEEN
Rebecca Happy Applicant (Respondent)
and
Wadie Narouz Respondent (Appellant)
Counsel: Wadie Narouz, acting in person Julie Gravelle, for the respondent, Rebecca Happy
Heard: October 25, 2024
Endorsement
[1] The history of the case is set out in the September 6, 2024 endorsement. Wadie Narouz is appealing the final judgment of Justice Audet dated May 27, 2024. On September 6, 2024, this Court granted him additional time until September 16, 2024, to perfect the appeal.
[2] Two motions are before the Court:
(1) The appellant seeks: (i) An additional extension to perfect the appeal until the issuance of an order by the Superior Court; and (ii) Leave to appeal an order by Justice MacEachern in the same file dated July 6, 2020, and ancillary orders.
(2) The respondent, Rebecca Happy, seeks to a dismissal of the appeal based on the appellant’s failure to comply with the September 6 direction.
The appellant is granted leave to file additional documents
[3] On the eve of the hearing, the appellant delivered additional documents that he seeks to file in the court record. These records include a supplementary factum and an additional affidavit attaching documents from the appellant’s medical record. According to this medical evidence, the appellant was hospitalized between September 26 and 29, 2024.
[4] The Court allowed the filing of the additional documents even though they were not filed on time. While it is true that the appellant had three weeks to prepare his response to the respondent’s motion after his discharge from the hospital, according to the evidence submitted, he was admitted to hospital following a stroke and was discharged to home care. The appellant’s medical condition may be relevant to the consideration of his request for an extension of time to perfect his appeal.
The appellant’s request for additional time to perfect the appeal is granted
[5] According to the appellant, he is unable to perfect the appeal because no order has yet been issued based on the May 27, 2024 judgment. He also complains about the Superior Court’s failure to provide him with a French translation of Justice Audet’s decision, as required by s. 23.2(2)(e) of the Divorce Act, RSC 1985, c. 3 (2nd supp.).
[6] The respondent argues that the appellant is precluded from obtaining a further extension of time due to the absence of an order, as he himself is responsible for the delay in its issuance. The appellant did not consent to the draft order served to him by the respondent’s counsel, nor did he propose any amendments or an alternative draft. On July 7, 2024, Ms. Gravelle had to file a motion in writing to obtain a signed order based on her proposed draft. Although this is an uncontested motion, it has not yet been adjudicated.
[7] It is clear that the appellant did not cooperate with the respondent’s efforts to obtain an order. He is not a lawyer, however, and does not seem to understand that his consent to the respondent’s proposed draft order would not prevent him from arguing, on appeal, that the judgment contains errors. The administrative delays in obtaining a translation of the judgment and the issuance of an order based on a written motion are not attributable to the appellant.
[8] Under the circumstances, the justice of the case requires that the additional extension of time requested by the appellant be granted. He will therefore have seven days from receipt of the order from the Superior Court to perfect his appeal. If this time limit is not met, the respondent may ask for the appeal to be dismissed by way of a motion.
[9] The respondent advises that the issuance of a signed order is urgent for another reason. According to the judgment of May 27, 2024, the respondent has the right to sell the matrimonial home in the event of non-payment by the appellant of the amounts he owes her. The appellant’s mortgage lender, Fisgard Capital Corporation, commenced an action for the judicial sale of the house following the appellant’s failure to make monthly payments to it. A motion by Fisgard for a summary judgment will be heard in early January 2025. According to the respondent, she needs an order to enforce her rights in the face of Fisgard’s rights.
[10] Only the Superior Court has the jurisdiction to issue the order in question. However, we suggest that Ms. Gravelle send a letter to the court’s office, attaching this endorsement, and requesting that the written motion be decided on an urgent basis.
The appellant’s motion for leave to appeal Justice MacEachern’s July 6, 2020 order and for ancillary orders is dismissed
[11] An appellant must serve a notice of appeal within thirty days of the issuance of an order: Reg. 61.04(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194. The appellant seeks an extension of time to appeal Justice MacEachern’s July 2020 order and an order requiring that appeal to be heard with this appeal.
[12] The court may extend the time limit set by a rule or order for appealing a judgment: Reg. 3.02(1); Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35, at paras. 14-15; Howard v. Martin, 2014 ONCA 309, 42 R.F.L. (7th) 47, at para. 26. According to this Court’s decisions in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15, and 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286 at para. 4, the following criteria are relevant to the analysis:
- Whether the appellant has demonstrated an intention to appeal within the required time limit;
- The length of the delay and the explanation given for the delay;
- The adverse impact on the respondent if an extension of time is granted; and
- The merits of the appeal.
[13] Even if these criteria do not support the request for an extension of time, additional time should be granted if the justice of the case requires it.
[14] The appellant’s application does not meet any of the criteria. He raised the possibility of an appeal of the July 2020 order for the first time in September 2024, four years after the deadline for serving a notice of appeal. He did not provide a coherent explanation for the delay. The order was made with the consent of the parties when they were both represented by counsel. The appeal accordingly has little chance of success. Allowing the order to be appealed would have a significant prejudicial impact on the respondent. Based on the order, she agreed to sell her interest in the matrimonial home, her only significant asset, to the appellant.
[15] The appellant claims, however, that an extension of time is necessary in the interests of justice, as the 2020 and 2024 orders are related. This argument is unfounded. The purpose of the 2020 order was to settle the parties’ respective interests in the matrimonial home and certain movable property. Justice Audet’s judgment in 2024 concerns the calculation of the value of the net family assets, the division of the total amount, and the appellant’s claim for alimony and compensation for objects and money that the respondent allegedly stole during the marriage.
[16] It is true that both decisions provide for the sale of the matrimonial home, against the appellant’s wishes, in the event of his non-payment of the amounts he owes to the respondent. A judgment of this Court in favour of the appellant in the present appeal would not, however, be inconsistent with the 2020 order. They both deal with the financial consequences of the parties’ separation of the parties’ assets, but they are separate consequences.
[17] The appellant’s request for an extension of time to appeal Justice MacEachern’s order in 2020 is therefore denied. It is not necessary to consider the ancillary relief sought.
The respondent’s motion to dismiss the appeal is adjourned
[18] Given the additional extension of time granted to the appellant, the respondent’s motion to dismiss the appeal is adjourned sine die. As already mentioned, the respondent will have the right to present it again if the appellant fails to comply with the new deadline.
“S. Gomery J.A.”