In Ontario, it is well established that the following five factors are to be considered when deciding whether to extend the time period in which to file a notice of appeal: 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.

Sometimes, however, these factors point in different directions. Denomme v. McArthur was such a case. The decision came from two, related actions: one was a family law dispute (the appellant was the husband) and the other was a debt action involving the wife’s father. The appellant had missed the deadline to serve and file a notice of appeal by one day due to his lawyer’s counting error with respect to the effect of a holiday.

When considering whether to grant an extension of time, it was clear that there was an intention to appeal, a satisfactory explanation for the delay and no prejudice to the respondent. Feldman J.A. nonetheless agreed with the respondents that the appeals were of questionable merit given that the basis of the appeals appeared to be attacking how the trial judge perceived the evidence. So what did the interests of justice require? Feldman J.A. held:

[10]     As this court is required to accord a high degree of deference to a trial judge’s 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 Children’s 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.

This case thus shows that the decision to grant an extension of time will vary in light of the nature of an appeal. Feldman J.A. also noted that counsel have a duty to respond to “reasonable requests” for extensions, perhaps implicitly indicating she did not appreciate the failure to consent to an extension. She awarded the husband $5,000 in costs on the debt action but no costs on the matrimonial action.