ANDRES v ANDRES, 2023 ABCA 42
12.59: Appeal from divorce judgment
14.4: Right to appeal
14.8: Filing a notice of appeal
This was an Application to extend time to Appeal parts of an Order dismissing the Applicant’s request for retroactive variation of child support and ruling on the time that one of the Parties’ children ceased to be a child of the marriage for the purposes of support calculation.
The Order sought to be appealed was granted 14 and one-half months prior to the Applicant’s Notice of Appeal. Since Rules 12.59, 14.4 and 14.8 and applicable provisions of the Divorce Act, RSC, 1985, c 3 (2nd Supp.) required an Appeal to be brought within 30 days of the Order being made, absent extension by the Court, the Applicant required an express extension from the Court to proceed.
Citing the test from Cairns v Cairns,  4 DLR 819 (“Cairns”), the Applicant argued that an extension was appropriate in the circumstances because he had filed his Notice of Appeal promptly upon becoming aware that the Order sought to be appealed was final and not interim, the delay had not caused serious prejudice to the Respondent, and the Appeal had a reasonable chance of success. The Court agreed with the Applicant in regard to the applicable test as a guiding framework, noting further its overriding discretion to extend the time for Appeal where justice so requires, even where not all of the applicable criteria were satisfied. However, the Court disagreed that an extension was appropriate in the circumstances.
Applying the framework from Cairns, the Court held that the Applicant’s mistaken impression that the Order sought to be appealed was interim and not final was insufficient to push back the time to Appeal and did not have the effect of placing the Applicant’s bona fide intention to Appeal within the applicable Appeal period, as argued by the Applicant. Further, noting the Respondent’s evidence that she had suffered from prolonged illness and stress as a result of the Applicant’s continued attempts to reduce his child support obligations, the Court rejected the Applicant’s argument that no prejudice had resulted. That the Applicant had taken some benefit from the Order by taking advantage of the Child Support Recalculation Program was also noted. Though the Court agreed that the Applicant’s proposed Appeal satisfied the low threshold for establishing a reasonable chance of success, since it had some arguable merit and was not frivolous or vexatious, the Court held that that criterion alone was not sufficient to permit the extension.
On balance, the Court concluded that the Applicant’s lengthy delay could not be remedied on the basis of special grounds. Accordingly, the Application was dismissed.View CanLII Details