ROBERTSON v ROBERTSON, 2016 ABCA 394
14.5: Appeals only with permission
14.65: Restoring appeals
The Plaintiff husband applied under Rule 14.65(1) to restore his Appeal relating to retroactive child support which was struck. Justice Martin, referring to recent Court of Appeal authority, noted that the five factors to be considered in reinstating a struck Appeal were:
i. Arguable merit to the appeal;
ii. An explanation for the defect or delay which caused the appeal to be taken off the list;
iii. Reasonable promptness in moving to cure the defect and have the appeal restored to the list;
iv. Intention in time to proceed with the appeal;
v. Lake of prejudice to the respondents (including length of delay).
Justice Martin noted that none of the factors are determinative; rather, the factors are weighed to determine whether it is in the interest of justice to permit an Appeal to be restored.
The husband argued that in making the Order for retroactive child support the Chambers Judge had failed to give adequate weight to the circumstances surrounding the change of the child’s living circumstances. Justice Martin noted that Chambers Judge was afforded deference in such circumstances. Consequently, the Appeal had no arguable merits. Justice Martin also noted that the Appeal was for an amount under $25,000, and the husband was required to seek leave to appeal pursuant to Rule 14.5(1)(g). As no such permission had been sought, the Appeal was also struck on this ground. Her Ladyship also noted that leave under Rule 14.5 would also be denied, had it been sought. The Application was dismissed.View CanLII Details