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Family - Appeal - Leave to Appeal. Contardi v. Contardi
In Contardi v. Contardi (Div Court, 2024) the Divisional Court considers a family law motion for an extension of time to move for leave to appeal, here of an interlocutory order that struck the appellant's pleadings - though permitting them to be reinstituted on terms (payment of o/s costs orders and disclosure compliance):[15] This Court can extend time to appeal under Rule 3.02 of the Rules of Civil Procedure when it considers it just to do so. The onus is on the moving party to establish the grounds for an extension: Teitler v. Dale, 2021 ONCA 577, at para. 7. The governing principle is whether the justice of the case requires that an extension be given: Canadian Western Trust Co. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.
[16] On a motion for leave to extend the time to bring a motion for leave to appeal, the court should consider:(a) Whether the moving party formed an intention to appeal within the relevant period;
(b) The length of the delay and the explanation for it;
(c) The prejudice to the responding party; and
(d) The merits of the appeal.
See: Van de Kerckhove v. Wagner, 2022 ONSC 5780, at paras 10-11; Catalyst Capital Group Inc. v. Moyse, 2016 ONSC 554, at para 2; MacMillan v. Klug, 2024 ONSC 1125, at para. 7. ....
[19] I am less persuaded by the assertion that his current lawyer told him not to serve his motion for leave to appeal until after he could review the file. Given that the deadline for service under Rule 61.03 was, at the latest, January 18, 2024, that was very a risky strategy. If a motion for leave to appeal was being contemplated, it would have been a simple enough matter to serve a Notice of Motion for Leave to Appeal by January 18, 2024, out of an abundance of caution, rather than trying to bring a motion for an extension of time.
....
[21] The presence or absence of merits of an appeal may be dispositive on a motion to extend time: MacMillan, at para. 12. Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted; or
(b) there appears to be good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. [22] It is particularly difficult to obtain leave to appeal interlocutory orders in family law matters given that it is desirable to move these proceedings along given their subject matter and impact on families: Lokhandwala v. Khan, 2019 ONSC 6436, at para. 5; MacMillan, at para. 13.
....
[25] Finally, as Leiper J. stated in MacMillan, at para. 16:In high conflict family litigation, the courts have found that an extension of time may not be appropriate where the appeal will cause the parties to devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial: see Hassan v. Dahroug, 2022 ONSC 5506 at para. 21; Van de Kerckhove v. Wagner, 2022 ONSC 5780, at paras. 20, 23. . MacMillan v. Klug
In MacMillan v. Klug (Div Court, 2024) the Divisional Court considered the RCP 62.02(4) test for leave to appeal, here in a family law context:[12] ... Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted; or
(b) there appears to be good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted [13] It is particularly difficult to obtain leave to appeal interlocutory orders in family law matters given that it is desirable to move these proceedings along given their subject matter and impact on families: Lokhandwala v. Khan, 2019 ONSC 6436 at para 5. . Bressi v. Skinulis
In Bressi v. Skinulis (Div Court, 2023) the Divisional Court considered the test for obtaining leave to appeal an interlocutory order, here in a family law case:[7] Further, as has been observed, “the threshold for obtaining leave to appeal interlocutory orders in family law cases and costs orders is a high one”: Van De Kerckhove v. Wagner, 2022 ONSC 5780 at para. 17. Here, no case has been identified that conflicts, in principle, with the decision in issue, and the merits of the motion for leave are not strong.
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