The Applicant sought an extension of time to Appeal and permission to Appeal two Orders: one for retroactive child support from 2018-2024; and another for Costs following a Special Chambers hearing. The Applicant argued he was unaware of the hearing due to his lawyer’s withdrawal and his time in rehabilitation. He also claimed he was misled and believed that all matters were stayed. The Respondent submitted that the Applicant had been properly served with notice of the hearing, but failed to engage with the proceedings until enforcement efforts began for child support and costs.

Justice Fagnan affirmed that Rule 14.5(1)(e) does not apply to an Appeal of a Costs Order if a related substantive decision is also being appealed. Therefore, permission to Appeal the Costs Order was not required. In determining whether to grant an extension of time to file Appeal materials, the Court considered the overall justice of the situation. This included considering the reason for delay, the likelihood of the Appeal proceeding, potential prejudice to the opposing party, and the merit of the Appeal. This also included examining whether the Applicant held a bona fide intention to Appeal within the original Appeal period, if there was a satisfactory explanation for the delay, whether granting an extension would cause undue prejudice, whether the Applicant accepted any benefits of the Judgment, and whether the Appeal had a reasonable prospect of success.

The Court found that the Applicant had formed a bona fide intention to Appeal the Orders within two weeks of being served with the Orders. However, the likelihood of success on Appeal was extremely low. The Applicant sought to overturn the Orders based solely on his absence at the hearing, as opposed to any errors with the Chambers Judge’s decision. However, the Applicant failed to provide Affidavit evidence to support his claim that he was unaware of the hearing date, while the Respondent provided evidence that the Applicant was properly served with notice of the hearing by email and registered mail.

Fagnan J. also acknowledged that where a litigant wishes to take issue with an Order issued in their absence, they must apply to set aside, vary or discharge that Order under Rule 9.15 before an Appeal can be launched. An Application pursuant to Rule 9.15(1)(b) is usually heard by the Judge who issued the Order, as that Judge is best placed to consider the evidence and determine whether the Order should be set aside or varied as a result of the litigant’s non-attendance at the hearing. However, the Applicant did not apply to set aside the Orders under Rule 9.15 and the Court found there were no exceptional circumstances that would justify granting the Application to permit him to proceed with the Appeal.

Justice Fagnan determined that because the Applicant had been delinquent in paying support, disclosing his income, and paying outstanding costs, that granting permission to Appeal would result in further cost to the Respondent. Given this and the aforementioned reasons, Fagnan J. dismissed the Application to extend time to file the Notices of Appeal and granted the Respondent Costs.