It is not uncommon for case management judges to direct counsel to prepare draft orders encompassing their oral pronouncements. In some cases, however, it is unclear at the time of the request what the judge actually “pronounced”. The Alberta Court of Appeal recently held that, when such situations arise in the family law context, the time to appeal does not start running until the appellant receives notice of the entered order. The Court’s reasons can be found here:

Johnson v. Jordan, 2013 ABCA 55 (CanLII)

Johnson involved a family law matter where only the children were represented by counsel. The parents were self-represented. During the course of a case management hearing, on October 30, 2012, counsel for the children asked the judge for a risk and psychological assessment of the father. The judge directed the lawyer to prepare a draft order containing her recommendations, which the judge summarized as “a risk assessment, psychological evaluation, concept therapeutically managing access for the benefit of the children, leave of the court before any further applications are brought and a process for that applicable to both parties.” The judge stated that he would “consider” the draft order and grant it, or something similar, if appropriate.

Counsel for the children completed the draft order and emailed it to the parents and the judge on December 3, 2012. The draft order stated that its date of pronouncement was October 30, 2012.

The father (the applicant) did not comment on the draft order, and it was entered on December 13, 2012. The filed order came to the father’s notice five days later, on December 18, 2013. Three days after that, he filed his notice of appeal. He also applied for an extension of time. If the time to appeal started running with the date of pronouncement indicated on the face of the order (October 30, 2012), the father would have been out of time. The one month deadline had passed.

Sitting alone, Justice Rowbotham concluded that an extension of time was unnecessary: The father had, in fact, filed his notice of appeal within the time prescribed by the Rules of Court, Family Law Rules. In her view, the time started running on December 18, 2012 – the date the father received notice of the filed order. Notwithstanding that the entered order stated that it was pronounced on October 30, 2012, it was not actually clear on that date what the judge had “pronounced”. Justice Rowbotham was satisfied that the father had not received notice of the order that was, in fact, made until December 18. His notice of appeal was thus filed on time.

The critical passages from Justice Rowbotham’s decision are as follows:

[5] The applicable rule is found in the Part 12 of the Rules of Court, Family Law Rules. Rule 12.60 provides:

12.60(1) Subject to subrule (2), a decision of the Court sitting as an original court under the Family Law Act may be appealed to the Court of Appeal in accordance with Part 14.

(2) Notwithstanding Rule 506 of the Alberta Rules of Court (AR 390/68), the notice of appeal must be filed and served

(a) within one month following the date on which the order being appealed was pronounced, or

(b) if the appellant is able to establish to the Court’s satisfaction the date on which the appellant received notice of the order, within one month following that date.

[6] The applicant relies on Rule 12.60(2)(b),while the respondent submits that the date of pronouncement is the relevant date.

[7] I conclude that the time period did not commence on October 30, 2012. The case management judge indicated that he would “consider” the draft order and that if it was “appropriate, [...] grant it or something like it.” In my view he did not pronounce the order on that date. Accordingly, Rule 12.60 (b) applies. The respondent contends that the applicant received notice of the order on November 15, 2012, when he received the transcript of the October 30, 2012 appearance, and as a result the notice of appeal is still out of time. But the transcript merely supports the notion that it was unclear what was “pronounced” on October 30. I am satisfied that the applicant received notice of the order on December 18, 2012 when he received a copy of the filed order.

[8] In conclusion, the notice of appeal was filed within the time period prescribed in the Rules. There is no need to consider the application to extend the time for filing a notice of appeal. The parties are directed to file the balance of their materials in accordance with the Rules as if the notice of appeal had been filed as of the date of this judgment.