





CITATION:
Issasi
v. Rosenzweig, 2011
          ONCA 112



DATE: 20110208



DOCKET: M39536 (C52822)



COURT OF APPEAL FOR ONTARIO



Weiler J.A. (In Chambers)



BETWEEN



Amparo

Marlen
Rodriguez
Issasi



Applicant (Respondent/Responding Party)



and



Kenneth
Espinal
Rosenzweig



Respondent (Appellant/Moving Party)



Jeffery Wilson, for the appellant/moving party



Philip Epstein, for the respondent/responding party



Heard: January 6, 2011



On appeal from the order of Justice
          George Czutrin of the Superior Court of Justice, dated September 21, 2010,
          and on a motion to extend the time to perfect the appeal.



Weiler J.A. (In Chambers):



[1]

The appellant, Kenneth
Espinal
Rosenzweig, seeks an order granting leave to extend the time to perfect his
    appeal to the day following the determination of this motion.  The respondent,
Amparo

Marlen
Rodriguez
Issasi
,
    opposes the motion.

[2]

Rule 3.02(1) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, provides that the court may
    extend the time prescribed by the rules on such terms as are just.


[3]

The motion arises out of an appeal of an order made
    pursuant to Articles 3 and 12 of the Hague
Convention
    on the Civil Aspects of International Child Abduction
, Can. T.S. 1983 No.
    35 (the Hague Convention).  The order declared
    that
Josette

Issasi
Rosenzweig, then aged 13, was being wrongfully retained in Ontario by her
    father, Mr. Rosenzweig, and ordered that she be returned to her habitual
    residence with her mother, Ms.
Issasi
, in Cancun,
    Quintana
Roo
, Mexico.  That order has been carried out.

[4]

Although this motion involves a request for leave to
    extend the time to perfect an appeal, it is useful to consider the factors that
    apply when determining whether to exercise discretion to extend the time for
    filing a notice of appeal:  see
Monteith
v.
Monteith
,
    [2010] O.J. No. 346, at para. 11.  They
    are:

(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.

See Todd Archibald, Gordon Killeen & James C. Morton,
Ontario Superior Court Practice,

2011
(Markham:  Lexis
Nexis
Canada
    Inc., 2010), at p.580;
Rizzi v.
Mavros
(2007), 85 O.R. (3d) 401 (C.A.), at para.
16; and
Kefeli
v. Centennial College of Applied Arts and
    Technology
(2002), 23 C.P.C. (5th) 35 (Ont. C.A.), at para.
14.

[5]

The first two factors may be considered together.  For the first factor, since this is a motion
    for an extension of time to
perfect
an appeal, instead of asking whether the appellant
formed
an intention to appeal, I would ask whether the appellant
maintained
that intention to appeal
    within the relevant period.  I must also
    consider whether the appellant has provided a reasonable excuse for the delay
    in perfecting the appeal.

[6]

Mr.
Rosenzweigs
counsel
    sought to perfect the appeal on December 15, 2010 but was advised by this court
    that this was one day late.  Rule
    61.09(1) governs the time within which an appeal is to be perfected.  The rule provides that the time to perfect an
    appeal is 30 days after filing the notice of appeal where no transcript of
    evidence is required for the appeal (r. 61.09(1)(a)), and 60 days after
    receiving notice that the evidence has been transcribed where a transcript of
    evidence is required for the appeal (r. 61.09(1)(b)).  Since Mr.
Rosenzweigs
counsel had filed the Appellants Certificate stating that a transcript of the motion
    hearing was required, his counsel mistakenly understood that the time to
    perfect the appeal was 60 days after receiving notice that the transcript of
    the hearing was ready.

[7]

On the day that Ms.
Issasis
application was before the motion judge at first instance, counsels
    submissions and the judges comments were recorded.  A transcript was ordered for the appeal.  While Mr.
Rosenzweigs
counsel argues this is evidence such that rule 61.09(1
)(
b)
    applies and he does not require leave to perfect, I do not agree.  Although counsel may require a transcript for
    purposes of arguing the appeal, I am satisfied that the term evidence as used
    in the rules refers to the transcription of evidence that was sworn or
    affirmed.  Thus, rule 61.09(1
)(
a) applies and the deadline for perfection was December
    14, 2010.

[8]

Opposing counsel refused to give consent to perfect the
    appeal one day late for reasons I shall discuss when dealing with the justice
    of the case.  Suffice it to say that the
    first two factors that must be considered, in this case, whether the intention
    to appeal was maintained, and an explanation for the delay, are met.

[9]

As for the third factor, Ms.
Issasi
has filed no personal affidavit in response to the motion, and thus I have no
    basis on which to infer prejudice.  The requested
    extension of time to perfect is brief.

[10]

The fourth factor I am required to consider is the
    merits of the appeal, not with a view to determining whether the appeal will
    succeed, but to determine whether it has so little merit that the court could
    reasonably deny the important right of an appeal:  see
Duca
Community Credit
    Union Ltd. v.
Giovannoli
et al.
(2001), 142
    O.A.C. 146 (C.A.), at para. 15.

[11]

The judge at first instance gave no reasons apart from
    the order itself.  This may have been
    because he accepted the undisputed evidence before him.  The mother, Ms.
Issasi
,
    who had sole custody of the child, sent her to visit her father, Mr.
    Rosenzweig, with her maternal grandmother and uncle.  The grandmother and uncle returned to Mexico
    on the scheduled flight date without the child.  The child remained in Canada, allegedly to receive dental attention, but
    it soon became clear Mr. Rosenzweig would not return her.  Although Mr. Rosenzweig was served with the
    application by mail at his address in Norway and by regular service on his
    sister at her home in Toronto, he filed no material in response opposing it.  The lack of any reasons raises a concern that
    on the whole of the record, the proceedings may not permit appellate review.  A complication is the fact that, at the time
    of the hearing, the child had been granted status as a Refugee.  I cannot say that the appeal has so little
    merit that the right of appeal should be denied.

[12]

The real issue on this motion is the final factor, the
    justice of the case.  Counsel for Ms.
Issasi
submits that the appeal itself is an abuse of
    process inasmuch as Mr. Rosenzweig is not the real party behind the
    appeal.  The childs aunt, who is Mr.
Rosenzweigs
sister,
Josette
Rosenzweig
Espinal
(JRE), sought to be added as a respondent to Ms.
Issasis
application under
the
Hague Convention but her application was refused.  She did not appeal that decision.

[13]

The endorsement
    of Klowak J. rejecting JREs application is instructive on the issue of whether
    Mr. Rosenzweig is the appellant.  Klowak
    J. found that when the child came to Canada to visit her father, she lived with
    JRE and her spouse.  Without notice to Ms.
Issasi
, JRE initiated and arranged for the child to
    apply for refugee status in this country.  In support of that application, they obtained a psychological report to
    the effect that the child was fearful of returning to Mexico because of her
    mothers abusive conduct over the years in that country.
[1]
The child was granted refugee status
    without any attempt to notify Ms.
Issasi
.  Mr. Rosenzweig did not respond to the Hague Convention
    proceeding.  He himself had been refused
    refugee status in Canada and left for Norway before being deported.  He was seeking refugee status in Norway.  Klowak J. observed that Mr. Rosenzweig seems
    to have had little to do with the child while in Mexico, mother had sole
    custody, and he was delinquent in his support payments.

[14]

Mr. Rosenzweig has sworn no affidavit in support of the
    application to extend the time within which to perfect the appeal.  The affidavit of counsels legal assistant
    has been filed.  There is also in the
    record a letter signed by JRE, stating, Please find enclosed Mr.
Rosenzweigs
Notice of Appeal and Appellants Certificate.

[15]

Ms.
Issasis
submission is
    that JRE is doing indirectly what she has no standing to do directly:  that is, appeal the order returning the child
    to Mexico under the Hague Convention.

[16]

While the material in the record certainly raises the
    suspicion that that may be so, I am of the opinion that the issues of standing
    and abuse of process are also best dealt with as a preliminary issue by the
    panel hearing the appeal.

[17]

Accordingly, leave to extend the time within which to
    perfect the appeal is granted and the time to perfect the appeal is extended to
    February 10, 2011.

[18]

Mr.
Rosenzweigs
counsel also
    requested that the appeal be expedited.  All
    appeals of this nature are expedited.  I
    am confident that a suitable early date to hear this appeal will be found.  In the event that
counsel
    wish
an even earlier date than that proposed, counsel should arrange an
    appointment with the list judge.

[19]

Neither party is seeking costs.  I understand that both counsel are acting pro
    bono and wish to commend them for their willingness to do so.

Karen M.
Weiler
J.A.





[1]
Before
    me, counsel for Ms.
Issasi
pointed out that the
    record shows that at the same time the child was emailing her mother and telling
    her how much she missed her.


