Recently, Campbells LLP’s Laughlin J. Campbell and Trevor Moum represented a mother in an Ontario Court of Appeal decision, in a case the court called “high conflict”.
The mother was successful at both the trial and appellate levels.
Father Seeks Extensions of Time to Appeal
The parents separated in 2015. They have two children, now aged 7 and 5. Following their separation, questions regarding their children, support and property were at issue.
In the lower court judgment, the trial judge made extensive findings about the father’s conduct, which she set out as follows:
“The issues here were numerous, pivotal and sometimes complex. They spanned custody, access, support and property. The questions of imputed income and resulting trust were nuanced and challenging. Significant time was required to document the couple’s history, as well as [the father’s] extensive, prolonged and meritless complaints to the Children’s Aid Society, Peel Police, and the Office of the Children’s Lawyer.
In my reasons for judgment, I observed that both parties acted poorly during the initial years of their relationship. However, I also noted that for the last several years – and throughout much of this litigation – [the mother] has matured and taken the high road. I believe strongly that this litigation would have settled long ago had [the father] done the same.
Instead, he behaved in an unreasonable, litigious and aggressive fashion throughout these proceedings. He is obsessed with past “wrongs” and seeks to be vindicated on virtually every issue. Most of his three days of examination-in-chief were spent rehashing [the mother’s] alleged misbehaviour, much of it irrelevant to the issues before the court. He also changed counsel repeatedly ([the father was on] his third lawyer), which undoubtedly created delay and some duplication.
[M]uch of [the father’s] conduct throughout these proceedings was in bad faith: 1) he refused to obey parenting orders, costs orders and the court’s directions; 2) throughout the litigation he waged a campaign against [the mother] to cause emotional distress while purporting to be co-parenting; 3) he dismissed the views of all third-party professionals involved with the parties; and 4) he repeatedly denigrated and maligned [the mother] to child protection workers and the police.”
Ultimately, the trial judge set out terms stipulating that the parties were to cooperate on the sale of the home. The trial judge also set out a format to facilitate the sale.
However, the mother was required to return to the trial judge to facilitate the sale. In the subsequent trial judge’s order, dated September 23, 2020, she stated:
“Importantly, there is no reason for [the father] to not be co-operative with respect to the sale of Unit 19. In the Agreed Statement of Fact filed at trial, the parties agreed that should the court determine that Unit 19 is jointly owned, “it shall be listed for sale within 60 days following the order”.
To compound matters, [the father] continues to be highly uncooperative, in several ways. Since my judgment he has called the police to complain about [the mother] on several occasions, even though they long ago tired of and dismissed his calls. And he stopped paying child support as of April 16, 2020. Arrears currently sit at $5,291.04 for the year 2020.”
Subsequently, the father brought two motions for extensions of time to appeal the final orders made by the lower court, including the order for the sale of the home.
In each case, the father had filed a notice of motion without an affidavit or supporting documentation; he was advised by email that supporting documentation was required.
Despite this, and despite the court indicating to him that it could not properly address his motion without evidence, the father nonetheless wanted to proceed.
Test for the Extension of Time
The court considered the following five factors when exercising its discretion to grant or deny an extension of time:
(1) whether the appellant formed an intention to appeal within the relevant period;
(2) the length of the delay and explanation for the delay;
(3) any prejudice to the respondent;
(4) the merits of the appeal; and
(5) whether the “justice of the case” requires it.
Court Dismisses Father’s Motions
The court addressed the five factors in turn.
On the first factor, the court found that the father’s affidavit provided no indication of his intention to appeal the trial and costs orders within the relevant time. He had submitted a notice of appeal on October 13, 2020, which was outside the time.
On the second factor, the court noted that the time for appeal of the trial judgment was August 30, 2020. While the father claimed that he had relied on his counsel to appeal, the court found that his counsel had been removed from the record long before and the father was advised of the appeal deadlines. The court then stated:
“Self-represented litigants have a responsibility to familiarize themselves with the necessary procedures…. They cannot simply allege that they left the appeal with a lawyer.”
On the third factor, the court held that the prejudice to the mother was both financial and emotional. The mother was still waiting for the sale of the home to satisfy the father’s unpaid responsibilities and the child support was still in arrears.
On the fourth factor, the court found little merit to the father’s ground of appeal alleging ineffective counsel. It further held that his appeal with respect to the sale order was moot and had no merit in any event.
Finally, on the fifth factor, the court held that the justice of the case did not favourgranting the extension, stating:
“The factual findings by the trial judge disclose an ongoing pattern of abuse aimed at causing distress to [the mother]. [The father] has involved the court, the police, the Children’s Aid Society and the Office of the Children’s Lawyer in this fight against her. He has complained against all the professionals tasked with assisting the family. He has not obeyed court orders, including child support. He did not cooperate with the court ordered sale of the matrimonial home.
Most importantly, there are two children affected by this process. I am overwhelmingly concerned about their best interests which are not served by a continuation of this litigation. In a case involving children, the justice of the case is reflected in the best interests of the children.
Having extensively reviewed the history of this family law litigation, I am convinced that the father’s proposed appeal represents a further avenue for him to continue his abusive conduct. He is out of time; the appeal has little if any merit; and the justice of the case does not favour granting the extension.”
In the result, the father’s motions to extend the time were dismissed, with costs awarded to the mother.
Separation and divorce are challenging for everyone involved. When dealing with custody or access disputes, matters involving spousal support and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.
The lawyers at Campbells LLP are thorough, efficient, and focused on delivering the best possible outcome for every single client. We work hard to resolve your family law matter effectively and efficiently while minimizing any unnecessary stress. Contact us online or at (905) 828-2247. We look forward to speaking with you and being on your side.