12.59: Appeal from divorce judgment

Case Summary

The Applicant sought an extension of time to file his Notice to Appeal in relation to a child and spousal support Order. The Court held that the deadline to file the Notice of Appeal was 30 days from the time the Order was made. The Court applied the requirements outlined in Cairns v Cairns, [1931] 4 DLR 819,for granting an extension to the time to Appeal; being whether:

(a)    the Applicant had a bona fide intention to appeal and there were special circumstances which excused or justified not filing the Notice of Appeal by the deadline;

(b)   the Respondent had been prejudiced; and

(c)    the Applicant had taken the benefit of the Judgment.

The Court accepted the Applicant’s evidence of his intentions. The Court also accepted that the delay in filing was because the Applicant and his counsel believed that portions of the Order were still unresolved. The Court held that there was no evidence of any specific prejudice, and that the Applicant had not taken the benefit of the Judgment, but had been paying the support as ordered. The Application was granted.

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