



COURT OF APPEAL FOR ONTARIO

CITATION: Burns v. Brown, 2021 ONCA 450

DATE: 20210621

DOCKET: M52505

(C67833)

Brown
    J.A. (Motions Judge)

BETWEEN

Barbara
    Elizabeth Burns

Applicant

(Respondent/Responding
    Party)

and

James
    Alexander Brown

Respondent

(Appellant/Moving
    Party)

James A. Brown, acting in person

Christina Doris, for the responding
    party

Heard: June 17, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1]

This is a motion in a family law appeal, in
    which the main ground of appeal concerns the amount of parenting time awarded
    to the appellant father, James Brown. He seeks an order extending the time for
    the perfection of his appeal until July 30, 2021. The respondent mother,
    Barbara Burns, opposes his request.

[2]

At all material times during this proceeding,
    the appellant was a practising family law lawyer.

BACKGROUND

[3]

The decision under appeal was released on
    November 22, 2019, following a six-day trial.

[4]

The appellant filed a notice of appeal on
    December 17, 2019. The grounds of appeal fall into two categories: (i) the
    trial judge committed errors, with a monetary effect of just over $10,000, in
    fixing child support arrears and determining inter-party debt; and (ii) the
    trial judge erred in failing to order equal parenting time in respect of the
    parties child who, at the time of the trial, was 4.5 years old.

[5]

In January 2020, the appellant ordered the trial
    transcripts.

[6]

At the end of January, he received correspondence
    from this court about its settlement conference program. The appellant wanted
    to take advantage of the program. In March 2020, the respondent agreed to
    participate. When the appellant followed up with the court office in late
    March, he was advised that a conference could not be held because of the
    courts suspension of operations during the initial stages of the pandemic.

[7]

At that point, the appellant contacted the
    transcriptionist and unilaterally directed that preparation of the transcripts
    be suspended.

[8]

This court suspended operations on March 16,
    2020 and resumed some hearings the following month. Various practice directions
    issued by the court informed the public and the Bar that while the timelines
    for serving and filing documents were suspended from March 16 until July 15,
    2020, those timelines were reinstated effective July 16, 2020.

[9]

However, it was not until early November 2020
    that the appellant contacted the court office to renew his request for a settlement
    conference.

[10]

Although the appellant did not receive a
    response from the court to his settlement conference inquiry until May 14,
    2021, on January 4, 2021 the court sent the parties a Notice of Intention to
    Dismiss Appeal for Delay if the appeal was not perfected by April 27, 2021. The
    appellant deposes that he did not receive the Notice although it bears his
    office address; the respondent deposes that she received it.

[11]

When the appellant renewed his request for a settlement
    conference in May 2021, the respondent advised that she no longer consented to
    a conference. As a result, on May 18, 2021, at the direction of Benotto J.A.,
    the appellant was advised that a settlement conference would not be held and
    that he was required to perfect his appeal within seven days, by May 25, 2021.

[12]

He did not do so. Indeed, he could not do so as
    a result of his earlier unilateral suspension of the preparation of the trial
    transcripts. The appellant has since asked the transcriptionist to continue
    with the transcript preparation. He advises that he has received transcripts
    for all but one day of the trial and anticipates the last transcript will
    arrive by the end of this month.

ANALYSIS

[13]

The overarching principle is that an extension
    should be granted if the justice of the case requires.

The length of the delay and appellants
    explanation for the delay

[14]

The appellant submits that he acted reasonably
    in unilaterally suspending the preparation of the transcripts and his delay in
    perfecting the appeal is explained by court delays resulting from COVID-19 and
    his desire to obtain a settlement conference.

[15]

In assessing the reasonableness of the
    appellants explanation, it is significant that at all material times he was a
    practising family law lawyer. I am not persuaded that the appellant has
    provided an adequate explanation for his over one-year delay in perfecting his
    appeal.

[16]

First, the settlement conference materials the
    appellant received from this court in January 2020 clearly state that to
    request a pre-hearing settlement conference the parties must submit a form
    titled Joint Request for Pre-hearing Settlement Conference. The appellant did
    not do so.

[17]

Second, those materials also clearly state that
    the parties must still comply with rule 61.05(5) of the
Rules of Civil
    Procedure
. That rule requires the appellant to file proof that he has
    ordered a transcript of all relevant evidence. While the appellant did so, he
    unilaterally suspended the preparation of the transcripts, an act inconsistent
    with the obligation imposed by r. 61.05(5), which contemplates the continuing
    preparation of transcripts once ordered. The respondent did not consent to the
    suspension. That unilateral suspension has materially contributed to the delay
    in perfecting the appeal.

[18]

Third, the appellant failed to pursue, with the
    required diligence, the availability of a settlement conference and the
    perfection of his appeal. By mid-July 2020 this courts normal operations had
    resumed, relying on videoconference technology, and the timelines under the
    rules were reinstated. Yet the appellant waited months before making a
    follow-up inquiry in November 2020 and then essentially sat on his hands until
    he received the May 14, 2021 email from the court. Regardless of the timeliness
    of communications from the court office, an appellant is obligated to pursue
    the steps in an appeal with due diligence. Mr. Brown did not.

[19]

Fourth, the respondent has submitted evidence of
    the appellants litigation conduct leading up to the trial. In an endorsement
    dated July 3, 2019, about a year and a half after the respondent had initiated
    her application (
Burns v. Brown
, 2019 ONSC 4004), W.L. MacPherson J.
    found that the appellant was litigating in bad faith stating, at para. 27 of
    her reasons:

There are ample reasons to make a finding of
    bad faith which include:

a) bringing the constitutional challenge
    and refusing to abandon same, despite being given opportunities to do so;

b) the [appellant] abandoning several
    claims (orders of May 25, 2018 and November 6, 2018
to

remain in effect and only be adjusted as of the March
    2019; request to amend pleadings;  disclosure of Canada Revenue Agency
    documents by applicant) during the motion in response to the courts inquiry only,
    without any advance notice to the applicant or her counsel;

c) the amount of time taken to deal with
    the motion including preparation of multiple factums and two-and-half-days of
    argument;

d) the [appellant] disputing the consent order
    of November, 6, 2018 suggesting that he was under duress in signing same and
    misrepresenting to the court that Nightingale J. had directed the applicant as
    to the commencement date of reduced spousal support;

e) the [appellant] alleging fraud and
    misrepresentation by the applicants former counsel, which was totally
    unfounded;

f)

the [appellant] alleging fraud by the
    applicants current counsel during argument, without any prior notice or
    foundation, and only retracting same upon questioning from the court;

g) the main objective of the motion
    amounted to nothing more than an appeal in disguise.

[20]

These judicial comments disclose that the
    appellant has engaged in various forms of delay tactics during this proceeding.
    That, in turn, informs my assessment of his conduct on this appeal since March
    2020. I regard the appellants delay in perfecting his appeal not as the product
    of forces beyond his control or attributable to the respondent but as
    indicative of an indifference to his obligation, as an appellant, to perfect
    his appeal with all due diligence.

[21]

The appellants inordinate delay in perfecting
    his appeal and the absence of a reasonable explanation for most of that delay
    weigh heavily against his request for an extension. As well, they indicate that
    he did not maintain an intention to appeal throughout the relevant period of
    time:
Issasi v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391, at para. 5.

Prejudice to the respondent

[22]

The respondent deposes that the appellants
    delay causes harm to her and their daughter, who is entitled to certainty when
    it comes to her parenting schedule. As well, the delay causes harm to the
    respondent due to the significant emotional and economic cost of litigating
    against the appellant who, as a self-represented lawyer litigant, does not
    incur the legal costs the respondent must incur.

Merits of the appeal

[23]

If an extension is not granted, the appellants
    appeal will be dismissed as he has not complied with the direction of Benotto
    J.A. communicated on May 18, 2021 to perfect his appeal by May 25, 2021. Consideration
    therefore must be had of the merits of his appeal.

[24]

The appellants grounds of appeal concerning the
    calculation of child support arrears and the amount of debt he owed the
    respondent are questions of fact, which are subject to a deferential standard
    of review. The appellants notice of appeal does not assert that the trial
    judge made a palpable and overriding error of fact in either regard.

[25]

While the appellant alleges that the trial judge
    misapprehended the evidence regarding his child support arrears, the trial
    judge dealt at length with the issue of child support at paras. 54-63 of her
    reasons. The trial judges reasons disclose, at para. 64, that her calculation
    of the amount of arrears was based on the parties consensus as to the amount
    of support the appellant had paid:

It is acknowledged by both parties that James
    contributed to child support during this period in the amount of $9580. The arrears
    of support for this period are, therefore, $14,835 less $9580, which equals
    $5255.

[26]

As to the amount of the debt payable by the
    appellant, I see no merit in this ground of appeal as the trial judge accepted
    the appellants position at trial writing, at para. 82:

James position is that he will pay $5000 to
    Barbara. That position is accepted. That amount, when paid, is enough to
    satisfy his obligation regarding all Visa expenses, all Jeep insurance payments
    and all Jeep loan payments up to the date of sale.

[27]

In respect of the appellants ground of appeal
    alleging inadequate parenting time, the trial judge spent considerable time in
    her reasons dealing with the issues regarding the child. She ordered joint
    custody but directed that the 4.5 year old child primarily reside with the
    respondent mother, reflecting the long-standing
status quo
. The trial
    judge specifically addressed the appellants claim for equal parenting time at
    paras. 46-51:

James asserts that the application of the
    maximum contact principle mandates that Joya should share time equally between
    her parents. This submission ignores or glosses over the aspect of the test,
    which specifies that a child should have as much contact with each parent
as
    is consistent with the best interests of the child.

James provided virtually no evidence as to why
    an equal timesharing regime would be in Joyas best interest compared to the
status
    quo
(expanded to include a midweek overnight).

James asks for a 2-2-5 parenting regime. He
    led no specific evidence to explain how he would implement this schedule, what
    changes this would entail for Joya, or what benefits this would provide for
    Joya.

James also led no evidence to outline or
    highlight deficiencies in the parenting schedule proposed by Barbara. Barbara
    proposes that James have Joya on alternate weekends and one overnight per week.
    The midweek overnight is a change from the current schedule, which includes two
    non-overnight evenings per week.

James position is simply that Barbaras
    proposal is not enough and shared parenting should be the default.

In the absence of any evidence establishing
    for the child additional benefits in a pure shared parenting regime, where the
    child is thriving and has positive relationships with each parent and with her
    extended family, the
status quo
is to be respected.

[28]

In his notice of appeal, the appellant does not
    identify any specific legal or factual error made by the trial judge in
    arriving at her parenting order. The notice simply baldly asserts that the
    trial judge erred in fact and law in imposing an Order that departed
    significantly from equal parenting time.

[29]

When considered as a whole, I regard the
    appellants grounds of appeal as very weak. As a result, I do not regard the
    prejudice to the appellant from denying an extension to outweigh his inordinate
    delay and lack of reasonable explanation for the delay.

Conclusion

[30]

Assessing the circumstances as a whole, I
    conclude that the justice of the case points to denying the appellant an
    extension of time to perfect his appeal: his delay has been inordinate; he has
    not provided a satisfactory explanation for the delay; his conduct indicates
    that he did not maintain an intention to pursue his appeal after filing the
    notice of appeal; his desultory litigation conduct reflects a pattern of delay
    throughout this litigation; the merits of his appeal are very weak; and there
    is a strong need for finality in respect of the parenting arrangements for the
    young child.

DISPOSITION

[31]

Accordingly, I dismiss the appellants motion.

[32]

The appellant shall pay the respondent her costs
    of this motion in the amount of $2,500, inclusive of disbursement and
    applicable taxes, payable within 30 days of the release of these reasons.

David Brown J.A.


