



COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. Smith, 2019 ONCA 655

DATE: 20190814

DOCKET: M50429 (M50335)

Pardu, Paciocco and Zarnett JJ.A.

BETWEEN

Michael Lawrence Smith

Applicant

and

Constance Smith

Respondent

Michael Smith, in person

No one appearing for the respondent

Heard: August 12, 2019

REASONS FOR DECISION

[1]

Michael Lawrence Smith
applies to set aside the
    decision of Benotto J.A. of May 6, 2019, denying him an extension of time to
    seek leave to appeal a Divisional Court decision of November 24, 2010. That
    decision substantially denied Mr. Smiths appeal from support, equalization
    payments and associated costs orders made on April 30, 2008, after a Superior Court
    trial. Mr. Smith also seeks additional relief before us, including extensions
    to file leaves to appeal and notices to appeals relating to interim support
    orders, as well as orders for the production and use of transcripts.

[2]

We were not unaffected by the impact that Mr.
    Smiths mental health and marital breakup have had on him. However, our
    function, as an appeal court, is constrained by law.

[3]

We cannot extend the time to appeal the interim
    support and related costs orders since we do not have jurisdiction to do so.
    The decision from July 2010 denying Mr. Smith leave to appeal those interim
    support orders is moot; even before that leave to appeal application was initially
    brought those interim orders had already been overtaken by the earlier, final orders
    made on April 30, 2008. As for the transcript requests, they are not properly included
    in this application to review Benotto J.A.s decision. Mr. Smith is
    unrepresented and so it is not surprising that he included each of these
    requests. However, even if we were thoroughly persuaded of their merits we
    could not provide the relief Mr. Smith is requesting.

[4]

Nor is there any basis upon which we could
    properly interfere with Benotto J.A.s conclusion that Mr. Smith should not be
    granted the extensions related to leave to appeal of the Divisional Court
    appeal decision. In order to obtain those extensions Mr. Smith must show that
    they are in the interests of justice. Important considerations include whether
    the applicant formed an intention to appeal within the relevant appeal period,
    the length and explanation for the delay, prejudice to the respondent, and the
    merits of the appeal. Benotto J.A. concluded that Mr. Smith had not
    demonstrated before her an intention to appeal during the appeal period or that
    his proposed appeal has merit. These decisions find support in the record. There
    is no evidence confirming an intention to appeal during the appeal period, and the
    challenges Mr. Smith make to the decision are fact-based and bear no realistic
    prospect of success. Close to a decade has passed since the Divisional Court
    appeal was denied. Benotto J.A.s decision was correct and we agree with it.

[5]

If there has been a material change in Mr.
    Smiths financial circumstances compared to what was contemplated at the time
    of the original support order, Mr. Smiths avenue for relief lies in an
    application for variation or termination of his support obligations, not an
    application for an extension of time to serve leave to appeal.

[6]

The motion is therefore denied.  As no one responded to
    this motion, there is no costs order to be made.


G. Pardu J.A.



David M. Paciocco J.A.

B. Zarnett J.A.


