



COURT OF APPEAL FOR ONTARIO

CITATION: Denomme v. McArthur, 2013 ONCA 694

DATE: 20131114

DOCKET: M43002 & M43003

Feldman J.A. (In Chambers)

BETWEEN

M43002

Kelly Jane Denomme

Applicant (Respondent)

and

Corey Wilson McArthur

Defendant (Appellant)

AND BETWEEN

M43003

Paul Denomme

Plaintiff (Respondent)

and

Kelly Jane Denomme

Defendant (Respondent)

and

Corey Wilson McArthur

Defendant (Appellant)

Anna Towlson, for the appellant, Corey Wilson McArthur

Robert K. Bickle, for the respondent, Kelly Jane Denomme

Clarke L. Melville, for the respondent, Paul Denomme

Heard: October 28, 2013

On appeal from the judgments of Justice Dale Parayeski of
    the Superior Court of Justice, dated May 21, 2013, with reasons reported at
    2013 ONSC 2834 and 2013 ONSC 2895.

Feldman J.A.:

[1]

This is a motion by the husband, Corey Wilson McArthur, for an extension
    of time to serve and file the notice of appeal in two actions: a matrimonial
    action involving issues of custody, access and financial matters; and an action
    by the wifes father, Paul Denomme, to assert and collect a debt from the
    husband and the wife, Kelly Jane Denomme.

[2]

The reasons in both actions were released on May 21, 2013. The husband
    instructed his lawyer to appeal both decisions and she advised the wifes
    lawyer of this intention during a chance meeting on June 3, 2013. At that time,
    the wifes lawyer advised that the husbands lawyer should be sure to comply
    with timelines as it would be difficult for her to obtain instructions for an
    extension. The notice of appeal was served one day late on June 21, 2013, as
    the husbands lawyer erred by not counting Victoria Day as part of the 30-day
    appeal period.

[3]

The husbands lawyer asked the wifes lawyer and the wifes fathers
    lawyer for an extension of time to file the notices of appeal. They asked for a
    letter explaining the delay and outlining the merits of the appeal. They then refused
    to consent to the extension.

[4]

The husband did not move immediately in this court for the extension.
    Instead, he sought a stay pending appeal from a Superior Court judge, which was
    first adjourned and ultimately adjourned
sine die
because there was
    not yet any appeal. He also applied to the trial judge to settle the terms of
    the order on the issue of access to the children, claiming that the reasons for
    judgment were internally inconsistent on the issue. The trial judge ultimately
    reaffirmed his finding that he was implementing the recommendation of the
    Office of the Childrens Lawyer that has the effect of somewhat reducing the
    fathers access time with the children.

[5]

The order was settled on August 9, 2013, and since that time, the three
    young children have been following the new access schedule, which was the one
    suggested by the report to the court from the Office of the Childrens lawyer.
    They have also started school. In an affidavit filed on the motion, the mother
    deposes that the children are thriving under the new schedule and the stability
    it provides.

[6]

The rest of the delay in bringing this motion was attributed to accommodating
    the holidays of all counsel.

[7]

The factors that a court considers in deciding whether to grant an
    extension of time to appeal are: 1) whether the appellant formed an intention
    to appeal within the relevant period; 2) the length of the delay and the
    explanation for it; 3) any prejudice to the respondent; 4) the merits of the
    appeal, and 5) whether the justice of the case requires that time be extended:
Rizzi
    v. Mavros
(2007), 85 O.R. (3d) 401 (C.A.), at para. 16. In a case
    involving children, the justice of the case is reflected in the best interests
    of the children:
Lombardi v. Mehnert
, [2009] O.J. No. 1715, 67 R.F.L.
    (6th) 167 (Ont. S.C.).

[8]

The husband did intend to appeal within the time limit. The delay was initially
    only one day, and the explanation was a counting error by the husbands lawyer.
    A one-day delay would not have caused any prejudice to the wife or to her
    father in his action. I also note that rules of professional conduct and
    civility generally require that counsel agree to reasonable requests from
    opposing counsel, including for extensions of time, so long as doing so would
    not prejudice the legitimate interests of the client: see Law Society of Upper
    Canada,
Rules of Professional Conduct
, rule 6.03(2) and related
    commentary; The Advocates Society,
Principles of Civility for Advocates
,
    principle 13.

[9]

The respondents on this motion submit that there is no merit to the
    appeals. The appeals appear to challenge the trial judges appreciation of the
    evidence and his factual conclusions.

[10]

As
    this court is required to accord a high degree of deference to a trial judges
    findings of fact, it is difficult to see the merit in the appeals. However, a
    party is entitled to appeal and should not be deprived of that entitlement
    where there is no real prejudice to the other side. That is the case with
    respect to the financial issues in the matrimonial action and the debt action.

[11]

However,
    the same cannot be said about the custody and access ruling by the trial judge.
    There has been a four-month delay altogether, and, since August 9, the children
    have been on an effective access schedule. They are thriving under the
    stability of that arrangement, which is the one that was recommended by the
    social worker from the Office of the Childrens Lawyer.

[12]

The
    husband disputes this. He says that the social worker intended her use of the
    October schedule as an example only and that in other months where the father
    has more off-work time, it was intended that he have more access time. This
    argument was made to the trial judge when they attended to settle the order. The
    trial judge disagreed. He understood the argument and the evidence of the
    social worker and he made his decision and his ruling. I see no basis for this
    court to intervene. And if circumstances change, the husband may apply for a
    variation.

[13]

In
    my view, the justice of the case does not call for an extension to be granted
    for the portion of the judgment that deals with custody and access.

[14]

An
    extension of time to November 20, 2013, is granted to the husband to file the
    notice of appeal in the debt action and to serve and file an amended notice of
    appeal in the matrimonial action to appeal only the financial orders.

[15]

Costs
    in the debt action are payable to the applicant husband in the amount of $5000
    inclusive of disbursements and HST. As success on the motion in the matrimonial
    action was divided, there shall be no order as to costs of that motion.


