The parties obtained a Decision from the Provincial Court on a family matter concerning their child following a Trial. The father successfully appealed the Trial Decision to the Court of Queen’s Bench under the Family Law Act, SA 2003, c F-4.5. The mother sought permission to appeal to the Court of Appeal pursuant to Rule 12.71. The Court of Appeal considered the procedural history of the case, and noted that, following a finding that the Provincial Court had erred, Rule 12.70 was invoked by the Court of Queen’s Bench to allow the parties to submit Affidavits in support of their submissions on one of the issues between them.

With respect to the Application for permission to appeal, the Court of Appeal stated that Appeals from the Court of Queen’s Bench acting as an Appeal Court under the Family Law Act are governed by Rule 12.71(1). Pursuant to that Rule, only questions of law or jurisdiction may be appealed to the Court of Appeal with permission. The Applicant must demonstrate that:

(a)   There is an important question of law or precedent,

(b)   There is a reasonable chance of success on appeal, and

(c)   The delay will not unduly hinder the progress of the action or cause undue prejudice…

The Applicant in this case was also out of time to file the Application for permission to appeal with respect to one of the Orders from the Court of Queen’s Bench. The Court noted that, under Rule 14.37(2)(c), the Court may extend the time to file an Application for permission to appeal if the interests of justice support granting relief. The Appellant must show that:

1. there was a bona fide intention to appeal while the right to appeal existed; 

2. there was an explanation for the failure to appeal in time that serves to excuse or justify the lateness;

3. the respondent was not seriously prejudiced;

4. the appellant has not taken the benefits of the judgment from which the appeal is sought; and

5. the appeal would have a reasonable chance of success if allowed to proceed…

The Court granted the extension to apply for permission to appeal the Court of Queen’s Bench Order. The Order in question was not final, and the continuation of proceedings is an acceptable explanation for the failure to apply for permission to appeal on time. The Respondent was also not seriously prejudiced by the delay. The Court held further that the Application for permission to appeal satisfied the test: the issues to be appealed appeared to be questions of law, reviewable for correctness; and the Applicant had a reasonable argument for appealing. The Court also noted that the Respondent would not be unduly prejudiced by the continuation of the current arrangements with the child while the Appeal proceeds. The permission to appeal was granted.