CITATION: Demerse v. Aubry, 2025 ONSC 301
COURT FILE NO.: DC-24-2865
DATE: 2025/01/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cory Demerse, Appellant/Applicant
AND:
Jennifer Aubry, Respondent/Respondent
BEFORE: Somji J
COUNSEL: Mayo Ashaolu, for the Appellant/Applicant
Mary Cybulski, for the Respondent
HEARD: January 9, 2025
Motion for extension of time to perfect an appeal
[1] The Applicant father seeks an order for extension of time to perfect an appeal to the Divisional Court of the decision of Justice M. Smith of the Superior Court of Justice. Smith J issued a decision on February 21, 2024, with respect to the parties’ motion to vary a Parenting Order regarding their child B.D. The father filed a notice of appeal on March 18, 2024. He was required to perfect his appeal within 30 days, but failed to do so. The father served and filed his appeal materials on July 3, 2024.
[2] The Respondent mother opposes the motion on the grounds that the appeal has no merit, and the delay is costly and prejudicial to both her and B.D. The mother also argues that there are deficiencies within the appeal materials that were filed.
[3] The court has broad discretion to extend timelines to perfect an appeal pursuant to Rule 3.02 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The overarching consideration is whether the justice of the case warrants an extension: J.J.W. v. K.F., 2024 ONCA 362 at para 14. Other factors for consideration include: i) whether the appellant formed an intention to appeal; ii) the timing and explanation for delay; iii) the merits of the appeal; iv) costs and prejudice to the Respondent; and v) in cases involving children, the justice of the case as reflected in the best interests of the children: Denomme v McArthur, 2013 ONCA 694; J.J.W. at para 14; Hoffelner v. Whiteley, 2024 ONCA 753 at para 10.
i. Intention to Appeal
[4] Following a hearing on January 11, 2024, Smith J issued a Final Parenting Order varying two previous parenting orders issued by Engelking J in 2017 and Audet J in 2021. The father was self-represented at the time of the hearing. He later retained counsel. It is not disputed that the father indicated his intention to appeal by filing a notice of appeal on March 19, 2024. However, the appeal was not perfected until July 2024, and even then, the mother alleges deficiencies in the appeal materials.
ii. Timing and Explanation for delay.
[5] Upon review of the motion materials, I find that the father has not provided any reasonable explanation for the delay of almost three months in perfecting the appeal.
[6] The father’s counsel asserts in an affidavit dated July 3, 2024, that it was difficult to obtain documents, but he provides no explanation of what documents and why. This was not a case involving transcripts so there was no delay in that respect. Furthermore, the materials in the Appeal Book are all documents that were filed on the motion before Smith J. All the documents in the Appeal Book could have been obtained by the father’s counsel from his own client, Caselines, or from opposing counsel. The father’s counsel did not contact opposing counsel to request an extension of time, to explain his challenges in obtaining documents, or to request opposing counsel if they could facilitate matters by providing certain documents. This was the case even after March 24, 2024, when the mother’s counsel confirmed the filing deadlines with the father’s counsel and again after June 17, 2024, when the mother’s counsel advised that that the timeline for filing the appeal had expired.
[7] In his affidavit, the father’s counsel attaches no documentary evidence of his communications with the court or opposing counsel with respect to his challenges in obtaining documents from any sources, including his own client. Anything the court has learned of what transpired between the filing of the notice of appeal and the motion hearing date of January 2025 has been gleaned from the mother’s own affidavit which explains and attaches her own counsel’s correspondence with opposing counsel to advance this matter.
iii. Merits of appeal
[8] In his Notice of Appeal, the father argues for restructuring and augmenting his parenting time with B.D. This was precisely the subject of the motion.
[9] The parties’ child has always lived with the mother in Ottawa while the father resides in B.C. The mother had decision-making authority over the child. The motion addressed the location, times, and exchanges for the father’s parenting time with the child. The mother did not seek to reduce the father’s parenting time in her cross-motion, but to change conditions to accord with the child’s special needs as per the recommendations of various professionals.
[10] Smith J properly considered both the father’s motion and the mother’s cross-motion with respect to the father’s parenting time. He addressed in each case whether there was a material change in circumstances warranting revisitation of the previous Parenting Orders, and if so, if the proposed changes by each parent were in the best interests of the child. He found the father had not established a material change in circumstances and dismissed his motion. He found the mother had established a material change in circumstances, and that upon consideration of the medical and educational information provided, the mother’s proposed changes to the parenting schedule were warranted. In arriving at this decision, he specifically considered B.D.’s special needs and the input from medical and educational professionals.
[11] The father asserts in his notice of appeal that Smith J did not properly consider the mother’s historical obstructive conduct with respect to his parenting time. On the contrary, Smith J found that the mother was doing an extraordinary job raising B.D., had a strong care plan guided by professionals, and was proposing changes to the parenting schedule in accordance with B.D.’s bests interests. Smith J was concerned instead with the father’s short-sidedness and relentless attacks on the mother without justification. He found the father’s allegations were unsubstantiated and his arguments similar to those made in previous court appearances.
[12] Smith J reiterates the father’s persistence in advancing the same arguments at paragraph 17 of his costs decision dated May 23, 2024 and as a consequence, ordered elevated costs:
The Father’s response to the Mother’s costs submissions reinforces my conclusion that the Father’s behaviour is completely inappropriate. Despite my clear finding that his allegations of wrongdoing against the Mother were baseless, he repeats and relies upon the same arguments that he has been advancing for years. This continuous type of behaviour needs to be discouraged and sanctioned.
[13] Finally, as the mother’s counsel points out, there remain deficiencies in the appeal materials. For example, while the father alleges Smith J failed to consider certain facts, he has not filed an affidavit explaining what facts he is referring to that were either not considered or improperly considered. His Appeal Book is simply a refiling of the same materials that were filed on the motion. In these circumstances, it is impossible for the mother to know what the specific alleged errors are and respond appropriately. Furthermore, these material deficiencies were pointed out to the father’s counsel as early as August 16, 2024, and again on August 21, 2024, and the father’s counsel has neither responded nor corrected the deficiencies.
[14] Smith J properly considered the legal tests. His findings are accorded considerable deference and should not be interfered with lightly. I find the father’s appeal materials fail to adequately delineate the alleged errors and constitute an attempt to relitigate the same issues and advance the same arguments previously made and rejected. I find there is little, if any, merit to the appeal.
iv. Costs and prejudice
[15] I find the mother is prejudiced by the delay. First, this family has been engaged in ongoing litigation at tremendous financial cost to the mother. Smith J issued an elevated costs award of $30,570 following the motion. The Appellant has neither paid those costs nor sought a stay of the costs Order.
[16] Second, following Smith J’s decision, the family has adjusted and has been living with the new Parenting Order for 11 months both with respect to the father’s in-person and virtual parenting time. The mother did not expect to have to relitigate the issues again and revisit scheduling. Even after the appeal notice was filed, the father was not diligent in either perfecting the appeal or bringing a motion for an extension of time. There were deficiencies in the scheduling of the motion for an extension of time which delayed the hearing from September 2024 to January 2025.
[17] Third, there are deficiencies in the Appeal Book which have not been corrected and would result in even further delays before the appeal could be heard.
[18] I find the continuous and delayed litigation distracts from the mother’s ability to focus on B.D.’s care, a child with very special needs, and consequently, is prejudicial to her both with respect to her time and expenses.
v. Justice of the case
[19] The motions judge considered B.D.’s best interests in arriving at his decision, a decision which is highly discretionary. The medical and educational professionals recommend that because of her special needs, B.D. would benefit from routine and reduced disruptions. In short, B.D. would benefit from finality: Collins v. Tiveron, 2024 ONCA 447 at para 18. As already noted, there is little, if any, merit to the appeal. In these circumstances, I find the justice of the case when considered in the best interests of the child does not support an extension of time.
[20] Upon consideration of all the above-noted factors, the application to extend the time to perfect the appeal is dismissed.
Costs
[21] Courts have broad discretion to determine to whom costs should be paid and the quantum: s. 131(1) Courts of Justice Act, R.S.O. 1990, c. C.43, as am.
[22] Rule 24 sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.
[23] The mother is the successful party and presumptively entitled to costs. The only issue to be decided is the quantum.
[24] Rule 24(12) requires a judge to consider the following in determining quantum:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
i. each party’s behaviour,
ii. the time spent by each party,
iii. any written offers to settle, including offers that do not meet the requirements of r. 18,
iv. any legal fees, including the number of lawyers and their rates,
v. any expert witness fees, including the number of experts and their rates,
vi. any other expenses properly paid or payable; and
(b) any other relevant matter.
[25] I find the father engaged in unreasonable conduct by failing to notify counsel of the original motion date, failing to respond to counsel’s inquiries about the status of the appeal and deficiencies of the appeal materials, and failing to provide confirmation of this motion hearing resulting in the mother’s counsel having to file a last-minute response to this motion. Such unreasonable conduct warrants an elevated costs award.
[26] The issues were not complex. The issue was of significance to the mother who wishes to cease litigation and focus on parenting her special needs’ child.
[27] I find the work performed of 12.6 hours over a period of seven months to respond to the appeal notice is reasonable. The rate of $300/hour is also reasonable for mother’s counsel who is a 12 year call. Total costs were $4,271 and partial indemnity costs were $2,861 inclusive of HST. The father’s counsel’s billings were $2,391 in comparison, but I find the mother’s motion materials were more thorough and provided more insight into the events surrounding delay.
[28] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para 26.
[29] Having considered the mother is the successful party on the motion, the father’s conduct, the importance of the issue, the reasonableness of the billings and rates charged, and proportionality, I find a costs award in the fixed amount of amount of $3,500 is fair and reasonable in this case.
Order
[30] The father will pay the mother costs in the fixed amount of $3,500 forthwith.
[31] The mother’s counsel shall forward me a draft Order for review and issuance.
Somji J.
Date: January 14, 2025
CITATION: Demerse v. Aubry, 2025 ONSC 301
COURT FILE NO.: DC-24-2865
DATE: 2025/01/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Cory Demerse, Appellant/Applicant
AND:
Jennifer Aubry, Respondent/Respondent
BEFORE: Somji J
COUNSEL: Mayo Ashaolu, for the Appellant/Applicant
Mary Cybulski, for the Respondent
MOTION RE EXTENSION OF TIME TO PERFECT AN APPEAL
Somji J.
Released: January 14, 2025