This fall, Alicia McLelland, Zachary Carson, and Kennedy Morrow of the family law group at DBB Law successfully opposed an application to extend time for filing a notice of appeal. The application, which was heard by the Alberta Court of Appeal, was brought by a very difficult opposing party who sought to appeal a Case Management Order. The Order directed disclosure of information regarding a military pension and was part of long and arduous family law litigation involving child support and the division of property.
As the opposing party filed their appeal late, they were required to bring an application before the Court of Appeal seeking an extension of time to file materials. In addition to successfully opposing this application, DBB Law obtained an award of costs against the applicant.
In Alberta, applications to extend time to file a notice of appeal are governed by the principles set out in the Alberta Court of Appeal’s 1931 decision in Cairns v. Cairns (“Cairns”). These principles, which the Court of Appeal most recently restated in Macdonald v. King, are as follows:
- The applicant must have held a bona fide intention to appeal while the right to appeal existed;
- There must be an explanation for the failure to appeal in time that excuses or justifies the lateness of the appeal;
- There must not be any serious prejudice to the responding party if the judgment appealed is disturbed (it must not be “unjust” to disturb the judgment);
- The applicant must not have taken the benefits of the judgment under appeal; and
- The applicant must have a reasonable chance of success in their appeal – i.e., there must be a “reasonably arguable” appeal.
Although these factors guide the Court in exercising its discretion to extend the time to file the appeal, they are not considered rigid requirements. As noted by the Court of Appeal in the 2016 case of Murphy v. Haworth (“Murphy”), an applicant does not need to meet all components of the Cairns test. Instead, as stated in Cairns, the Court has the discretion “…to do what justice requires to be done between the parties having regard to the circumstances of each particular case”.
The Cairns factors seek to prevent parties from arbitrarily prolonging litigation while recognizing that, in some cases, the interests of fairness and justice are served by extending the time to file an appeal. For example, in Murphy, the delay in filing was short and resulted from a “minor [procedural] misstep” by the applicant’s lawyer. Further, the delay caused no prejudice to the opposing party, and the applicant had given timely notice of their intention to appeal during the appeal period.
As noted in Murphy, the Court can also consider other factors, including whether the appeal in question would “settle the law” on a particular point or is only of particular interest to the parties to the case.
Overall, as emphasized by the Court of Appeal in Macdonald v. King, the time limits for appealing an order are deliberately kept short to “promote finality in litigation”, as the original successful party “is entitled to the fruits of the judgment under appeal”.
In DBB Law’s recent success opposing the application to extend time to appeal, Justice Kirker of the Alberta Court of Appeal (presiding alone) found that none of the Cairns factors favoured granting the application. Giving her reasons orally from the Bench, she dismissed the application and awarded costs against the applicant.
Family law litigation can be emotionally-charged and complex. Given the seriousness of the matters at issue in family disputes, parties should seek capable, knowledgeable legal counsel early in the process to understand their obligations and preserve their rights. DBB Law provides effective advocacy and comprehensive advice in all family matters, including separation, divorce, common-law relationships, parenting issues, pre- and post-nuptial agreements, cohabitation agreements, property division, mobility and relocation, adoption, surrogacy, and emergency protection orders.
Based in Calgary, DBB Law has one of the largest and most reputable family law practices in Western Canada. Our talented family and divorce lawyers support clients throughout their cases and provide creative, personalized solutions to family disputes while reducing discord and conflict as much as possible.
DBB Law proudly provides top-tier legal services throughout the great province of Alberta. In addition to our leading family law practice, we also represent clients in a broad range of other practice areas, including business and commercial law, civil litigation, construction law, labour and employment law, real estate and property law, tax law, and wills, estates and trusts. DBB Law also offers exceptional and well-respective mediation/arbitration services, as well as collaborative law services. To discuss your case or schedule a confidential consultation, please contact us online or by phone at 403-265-7777.