brown ja

1.4: Procedural orders
13.5: Variation of time periods
14.23: Filing factums – standard appeals
14.24: Filing factums – fast track appeals

Case Summary

The Applicant appealed an Order of a Chambers Judge which related principally to the Applicant’s access to his child. The Application was dismissed in its entirety, with Costs. The Order also eliminated telephone access and restricted the Applicant from bringing further Applications in relation to the child. The Registrar struck the Applicant’s Appeal for failure to file the Appeal Records in time. The Appeal was subsequently restored, but the Applicant failed to file his Factum in time. The Applicant applied for an indefinite extension of time to file his Factum, and to stay one of the provisions of the Order under Appeal.

Brown J.A. observed that, while an Appellant must file his or her factum on time or the Registrar will strike the Appeal pursuant to Rules 14.23(1) and 14.24(1), the Court, following Rules 1.4(2)(h) and 13.5(2), retains discretion to extend time periods specified in the Rules. The pertinent factors to consider in deciding whether to do so are: (1) the reason for the delay; (2) the prospects of moving ahead with the Appeal; (3) the prejudice to the other party; and (4) the potential merits of the Appeal. The Applicant had suffered injuries from a car accident which explained the delay. As to the prospects for moving the Appeal ahead, this was not the first time the Applicant had failed to meet a deadline. Justice Brown noted that delays in Appeals of access decisions are incompatible with the child’s best interests, which relates to prejudice. Further, the Appeal had very little prospect of success, as Appeals from custody and access decisions based on an assessment of the best interests of the child face a highly deferential standard of review. Balancing the delay already caused in the Appeal, the anticipated future delay, the reasons for the delay, the interests of the child in a speedy resolution, and the merits of the proposed Appeal, Brown J.A. declined to grant an extension of time. In the result, the Application was dismissed and the Appeal was struck.

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