Court File and Parties
Court File No.: 162/18AP Date: 2019 01 16 Superior Court of Justice - Ontario
Re: David Arie Johnston, Applicant And: Kylie Belinda Irwin, Respondent
Before: Justice G.D. Lemon
Counsel: David Arie Johnston, In Person Kylie Belinda Irwin, In Person
Heard: January 8, 2019
Endorsement
The Issue
[1] Mr. Johnston has brought a motion to extend the time to finish, serve and file his appeal and to set a new date for the appeal to be heard.
[2] After hearing from Mr. Johnston, I dismissed his motion for reasons to follows. These are those reasons.
Background
[3] The parties separated in the spring of 2015 after 13 years of residing together. They have one child, now aged 11.
[4] From what I can glean from Mr. Johnston’s materials, he wishes to appeal an interim order of March 27, 2017, and a final order of March 23, 2018. He submits that there has been a bias against him in the proceedings since it began November 30, 2015.
[5] On March 23, 2018, Ms. Irwin was granted custody of their child and it appears that Mr. Johnston was ordered to pay support.
[6] Mr. Johnston filed his notice of appeal on April 23, 2018. He seeks custody of the child and restricted access to Ms. Irwin. He submits that support arrears should be reduced to $0 and that neither party should be required to pay support for the child.
[7] The appeal came before McSweeney J. on June 19, 2018. At that time, she ordered that Mr. Johnston was to serve and file his amended appeal books in a form compliant with the Family Law Rules by Friday, June 29, 2018. He had filed a factum by then but the materials were deficient.
[8] Mr. Johnston was also to serve and file proof that the transcripts had been ordered by June 29, 2018. He was to serve and file the transcript by September 21, 2018, and serve and file his amended factum and book of authorities by October 5, 2018.
[9] Ms. Irwin was then to file her factum, authorities and any other responding materials no later than December 4. Mr. Johnston was to serve and file his reply factum and authorities by December 18, 2018.
[10] The hearing of the appeal was set for January 7, 2019 for one day.
[11] Because nothing had been filed by Mr. Johnston, the January 7, 2019 appeal was not scheduled to proceed.
[12] On December 24, 2018, Mr. Johnston filed this motion returnable January 7, 2019. Regular motions are heard in Guelph on Tuesday, and therefore the matter came before me on January 8, 2019.
[13] On December 24, 2018, Mr. Johnston brought a motion in the Ontario Court returnable January 18, 2019. There, he seeks an order that the Ontario Court pay the expense of the transcripts because “the cost is currently prohibitive.”
[14] In his supporting affidavit, Mr. Johnston says “I fully understand that I have failed to meet the timeline set out within the Rules and the orders of this Court, but this was not my intention or will.”
Analysis
[15] Mr. Johnston relies upon Laushway Law Office v. Simpson, 2013 ONCA 317. There, Justice Laskin said:
[12] In deciding whether to extend the time for appealing, a motion judge typically takes into account the following five factors:
- Whether the appellant formed an intention to appeal within the relevant period;
- The length of the delay;
- The appellant’s explanation for the delay;
- The merits of the appeal; and
- Any prejudice to the respondent.
[13] In taking into account these five factors, the overriding question is whether the justice of the case warrants an extension. [Citations removed]
Intention
[16] Mr. Johnston filed his notice of appeal on the last day, but on time. He appears to have always had an intention to appeal.
Length of Delay
[17] The delay here has been lengthy. It should also be noted that, for a child of 11, the length of time appears even longer. Mr. Johnston has been able to file lengthy and detailed materials on this motion and an earlier notice of appeal and factum. Clearly, he can proceed when he believes it necessary.
Explanation
[18] Mr. Johnston sets out a variety of reasons for his delay. He has filed an affidavit that he is gathering additional evidence, he has not been able to afford the transcripts and he has had a number of medical and financial issues.
[19] In his Notice of Appeal, Mr. Johnston sets out that the grounds for the appeal are “natural justice/procedural fairness/appearance of bias/violation of my rights under the Charter of Rights and Freedoms.” All of the details that he sets out under that heading will require a transcript. He is candid with the Ontario Court that he cannot afford the transcript.
[20] With respect to his medical issues, Mr. Johnston states:
What once took me an afternoon to accomplish can now take months. I have severe trouble focusing and managing my time. My concept of time is almost non-existent and I routinely view things or events in my mind that I believe are recent but are actually things that are way past due, expired, or missed, etc.
After losing my employment In September, 2015, roughly 6 months after the Respondent left, I was diagnosed by CMHA with severe depression, PTSD, and was told that bipolar disorder was now an issue. My memory, that was once nearly perfect was now among the worst. I had also lost all focus, motivation, drive. These are still things I struggle with today as my stress level is still extremely high mostly due to the Respondents actions and orders of the Ontario Court of Justice that still to this day leave me lost for words as they defy logic and ignore the evidence presented.
Despite the medical issues I have dealt with and continue to deal with I have been forced to represent myself in these proceedings and in other matters in criminal court, civil court and POA court, at the HRTO, and most recently at a hearing of the property standards committee for the township of Wellington North, and I have ongoing dealings with the Ombudsmen for Manulife financial due to benefits owed to me through my former employer.
[21] With respect to his financial issues, he sets out that he has not worked for approximately three and a half years and, for a variety of reasons, risked eviction from his residence. Many of his financial circumstances he blames on Ms. Irwin.
[22] Many of these concerns bear more on the merits of the appeal than the explanation for the delay. Mr. Johnston has had a difficult year. He has put all other issues ahead of this appeal relating to the custody of his child. I have no reason to think that he will change his priorities to move the matter forward. There is no explanation why the motion before the Ontario Court was not made sooner.
Merits
[23] I do not see merit in the appeal.
[24] Mr. Johnston is unlikely to be successful in the Ontario Court with respect to the transcript. Without such an order, he appears to be unable to afford the transcript. Without a transcript, the matter cannot proceed.
[25] Given Mr. Johnston’s medical and financial circumstances, even if all that he says about the trial and proceedings to date is correct, it is unlikely that custody will change. On his evidence, he is not able to take custody of the child. The status quo is that the child has been with Ms. Irwin since 2015. That is unlikely to change.
Prejudice
[26] I did not call upon Ms. Irwin in response to the appeal other than to confirm that she did not consent. As Justice Laskin said, she would be
“prejudiced in the sense that these proceedings continue to be outstanding and have not been brought to a timely conclusion. Finality is an important value in our justice system. When an appeal is not pursued with reasonable diligence, a respondent is justified in asking the court to dismiss the appeal for delay.”
[27] For those reasons, the motion to extend time to perfect the appeal is dismissed. The effect, then, is that the appeal, too, is dismissed.
Costs
[28] If costs are requested, Ms. Irwin shall provide her costs submissions within the next 15 days. Mr. Johnston shall provide his response within 15 days thereafter.
[29] No reply submissions shall be filed unless I request them.
[30] Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
[31] Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9