Justice Watson provided oral reasons for this Decision. The Appellant/Applicant applied for an extension of time to appeal an Order dated July 12, 2024 (the “July Order”). The Applicant sought to attach the July Order to his existing Appeal of a subsequent Order made in the matter by the same Justice, dated October 21, 2024 (the “October Order”), by virtue of Rule 14.9 and the test from Cairns v Cairns, [1931] AJ No 76 (QL) (the “Cairns Test”).

The Court acknowledged that Rule 14.9 does allow for multiple appeals, in a way, to be included within one Notice of Appeal and therefore within one appeal hearing. The Applicant argued that the Cairns test was met for the extension of time for the July Order to be included on its own merits, not simply as an element of the October Order Appeal. However, the Applicant argued that the July Order, in a sense, linked into the October Order such that they are one order, and that one is a continuation of the other.

Watson J.A. acknowledged that the matter, the parties, the children, and the overriding principle that the best interests of the children is the demanding consideration, are all the same, which informed both Orders. The question was whether the formality of the July Order needed to be reviewed in the October Order Appeal or whether it was a moot point if correct or not because of the existence of the October Order.

The Court considered the Cairns Test and found the case could likely be decided on the fourth factor, as to whether “there is a reasonable chance of success if allowed to proceed,” of an appeal of the July Order. The Court found that the terms of the July Order became a non-issue once the October Order was made, because the October Order essentially adopted the July Order, as both are in relation to the best interests of the children, which constantly evolves.

Appeal Justice Watson found that the adoption of an earlier order is not the same thing as converting the earlier order into the present order and that Rule 14.9(c) supports that interpretation. The Court interpreted Rule 14.9(c) to say that parties may get a chance to include documents within a single Notice of Appeal, or include challenges within a single Notice of Appeal, which effectively merges the challenges into one matter, even if they involve the same topic, parties, or similar issues.

Watson J.A. determined that each order must be treated separately and that if the Court was to extend the time to allow the appeal of the July Order, on the basis that it was simply part of the later order, it would be contrary to the operation of the legal system and would post-facto blur what orders are. The Court concluded that the July Order did not need to be attached to the Appeal of the October Order and the Application was dismissed.