MacMillan v. Klug, 2024 ONSC 1125

CITATION: MacMillan v. Klug, 2024 ONSC 1125

DIVISIONAL COURT FILE NO.: 612-23

Court File No. FS-17-21614

DATE: 20240222

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

Title: GAVIN MACMILLAN, Appellant

AND

JESSICA KLUG, Respondent

BEFORE: Leiper J.

HEARD: In writing

Appellant: Self represented

Respondent Counsel: Sheila Gibb/Lauren D'Angelo

Date of Decision: February 22, 2024

ENDORSEMENT

Introduction

[1] The Applicant, Mr. MacMillan seeks an extension of time in which to file a motion for leave to appeal the order of Justice Akazaki, made on September 21, 2023. Mr. MacMillan states in his Notice of Motion that he misunderstood the timeline associated with filing leave to appeal an interlocutory order, because he did not understand what “interlocutory” meant. His materials were two weeks’ late. He seeks an extension which is opposed by the Respondent, Ms. Klug.

[2] The order in question was a temporary order as to decision making authority granted on a motion that was brought by Ms. Klug. Akazaki, J.’s order provided Ms. Klug interim sole decision making over the parties' 8-year-old son, A. The order dispensed with the need for Mr. MacMillan's consent for all travel-related and other official documents for A., and required Ms. Klug to inform Mr. MacMillan of any international travel plans for A. with seven days' notice.

[3] The evidence at the motion included the fact that due to Mr. MacMillan’s prior periods of detention, bail status (house arrest pending appeal) bail terms and prior conduct towards Ms. Klug, she has had de facto sole decision-making responsibility for A. She has made decisions for A. without consulting with Mr. MacMillan. Since their separation in 2016, Mr. MacMillan has not sought any court orders dealing with decision-making. He has not had in-person parenting time for the past two and a half years.

[4] The issue on this motion is whether the extension of time should be granted.

[5] I am left with Mr. MacMillan’s notice of motion and written statement which describes his error in serving and filing his motion on time and requests an extension. His material submits that he confused the 30-day time limit for appeals from final orders found on the court website, with the 15 day time-limit for motions for leave to appeal. Mr. MacMillan’s intends to argue on appeal that he was denied procedural fairness, his oral submissions were curtailed and that his material of over 100 pages established that much of what was in Ms. Klug’s materials was not accurate. He also submits that in the aftermath of the order made by Akazaki, J., his criminal appeal required him to surrender for two days in advance of the appeal hearing on October 3, 2023. He describes this as a traumatizing event that had an impact on his filing the motion for leave to appeal.

[6] Ms. Klug submits that the motion should be dismissed given the lack of merit of the appeal, the fact that Mr. MacMillan is out of time and because the justice of the case does not support granting the motion to extend time.

Analysis

[7] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:

(a) Whether the moving party formed an intention to appeal within the relevant period;

(b) The length of the delay and the explanation for it;

(c) The prejudice to the responding party;

(d) The merits of the appeal; and

(e) The governing principle of whether the justice of the case requires that an extension be given.

See: Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554 at para 2.

[8] Mr. MacMillan was two weeks late serving his motion for leave to appeal. He states in his material that he formed the intention to appeal within the time allotted, given that the length of the delay is two weeks.

[9] Mr. MacMillan explains the two week delay by stating he was confused about the time he had to appeal, and he was affected by his need to surrender into custody for two days during the running of the appeal period.[^1] However, the notice of motion for leave to appeal was served and filed on October 20, 2023. The length of the delay, the appeal and Mr. MacMillan’s status as a self-represented individual are some evidence that support a finding he formed an intention to appeal within the 15 day period, and that he missed doing so for valid reasons.

[10] Ms. Klug submits that there is prejudice to granting the motion. She will be required to respond to the motion for leave to appeal in a litigation context that reveals that Mr. MacMillan has paid no child support in years, nor has he paid any of the $12,000 in costs ordered by the motion judge. This is a fact that can be part of the consideration of prejudice to the respondent: see Kim v. McIntosh, 2020 ONSC 1447 at para 19.

[11] There is also the prejudice to the child, A. and his best interests in not having extended, unnecessary litigation. In none of Mr. MacMillan’s materials is there any reference to A.’s needs and how litigation involving the parent with whom he resides can impact his life. The materials focus only on Mr. MacMillan’s issues. His submissions that his materials ought to have been preferred to facts alleged by Ms. Klug suggest he is simply seeking a re-hearing of the issues that were before Akazaki, J.

[12] The presence or absence of merits of an appeal may be dispositive on a motion to extend time. Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted; or

(b) there appears to be good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted

[13] It is particularly difficult to obtain leave to appeal interlocutory orders in family law matters given that it is desirable to move these proceedings along given their subject matter and impact on families: Lokhandwala v. Khan, 2019 ONSC 6436 at para 5.

[14] Mr. MacMillan’s materials identify no conflicting decisions. There is no legal error alleged in the motion judge’s decision, and the findings are supported by the evidence including that filed by Mr. MacMillan about the parenting time and his involvement with A. It is unclear what basis there would be in fact or in law for a different order given that A. has lived with Ms. Klug, and she has made all decisions since separation in 2016. Mr. MacMillan has not had in person parenting time since 2020.

[15] While I accept that the decision is important to Mr. MacMillan, it does not raise questions of broad significance or of general application that affect the development of the law and the administration of justice.

[16] Finally, there is the justice of the case. In high conflict family litigation, the courts have found that an extension of time may not be appropriate where the appeal will cause the parties to devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial: see Hassan v. Dahroug, 2022 ONSC 5506 at para 21; Van de Kerckhove v. Wagner, 2022 ONSC 5780 at paras 20, 23. This is demonstrably a high conflict case and I apply this principle.

[17] I conclude that although the delay is not a lengthy delay, and that Mr. MacMillan explained the delay with reference to his confusion, that the merits, prejudice to the respondent and the justice of case outweigh these factors. I dismiss the motion. Costs are awarded in favour of the respondent, Ms. Klug, in the amount of $1,500 all inclusive.

_______________________________ Leiper J.

Released: February 22, 2024

[^1]: Mr. MacMillan has since been re-incarcerated as his appeal to the Court of Appeal was dismissed since the exchange of material on this motion.