D.G. v. A.F., released by Justice Lauwers of the Ontario Court of Appeal on May 28, 2014, considered the test to apply when a litigant in the Court of Appeal seeks an extension of time to appeal a motion judge’s refusal to set aside the Registrar’s dismissal for delay. The decision is also interesting in that it complements Lauwers J.A.’s previous decisions in Kirby v. Hope Place Centres (http://www.ontariocourts.ca/decisions/2013/2013ONCA0459.htm) and R. v. A.E (http://www.ontariocourts.ca/decisions/2013/2013ONCA0713.htm), previously discussed on the blog (http://www.conductofanappeal.com/kirby-v-hope-place-centres-extending-time-to-file-a-notice-of-appeal/; http://www.conductofanappeal.com/r-v-a-e-self-represented-litigants-leave-to-appeal-under-the-provincial-offences-act/), where he went out of his way to assist self-represented litigants, particularly those with mental health issues. While the appellant in D.G. v. A.F. was also self-represented, it seems apparent that he was particularly unimpressed with her actions, feeling they were contrary to the best interests of her children.

The case was a brutally contested family law dispute. Earlier this year, Doherty J.A. refused to set aside the Registrar’s dismissal for delay and grant the appellant a fifth extension of time in which to perfect her appeal. In a motion before Lauwers J.A., she sought an extension of time to appeal Doherty J.A.’s decision to a panel of the Court of Appeal.

First, Lauwers J.A. needed to consider what test to apply to the appellant’s unusual request. He held:

[11]       In my view, the test to apply to the applicant’s request for an extension of time should be the same as the test on a motion to set aside a Registrar’s order dismissing an appeal for delay, since such an order was at the root of the motion before Doherty J.A. That test was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21, [2010] O.J. No.123, at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

 Lauwers J.A. accepted that the appellant always intended to appeal, that the explanations for her delay were plausible and that there “no prejudice in the traditional sense that the cases consider, such as the death of witnesses or the destruction of evidence.”

However, he considered a more profound prejudice in assessing the justice of the case. First, he held that the appeal had very little merit. Second, and related to the issue of prejudice, he felt that it was clearly not in the best interests of the children to allow the appeal to continue. He concluded that the best interests of the children is a factor to be considered in family law disputes, even in the context of procedural motions:

[33]       The court’s overriding concern in custody and access disputes is for the best interests of the children. I note that the Children’s Law Reform Act, R.S.O. 1990 c. C12, provides, in s. 19(a), that it is intended:  “to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children…” The Divorce Act, R.S.C. 1985 c. 3, likewise provides in s. 16(8): “[T]he court shall take into consideration only the best interests of the child…”

Lauwers J.A. accordingly dismissed the appellant’s motion.