“The mother was three days late in serving her notice of appeal. She sought consent from the father to the late filing of the notice of appeal, which was refused. Courts can extend time under r. 3.02 of the Rules of Civil Procedure. In general, the following factors are relevant to a motion to extend time to appeal: (1) whether the appellant formed an intention to appeal within the relevant period (in this case 30 days after the final order); (2) the length of, and explanation for, the delay; (3) prejudice to the respondent; (4) the merits of the appeal; and (5) ultimately, whether it is in the interests of justice to order the extension of time. In cases involving children, the justice of the case is reflected in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, at para. 10.
The mother states in her affidavit that she formed the intention to appeal within the requisite time. She explains that the delay resulted from a combination of the traumatic effect of the final order and the time that was required to retain appellate counsel. The motion was brought promptly.
The father opposes the motion for an extension of time, asserting that the mother waited until she received his costs submissions before deciding to appeal. He asserts that he is prejudiced, in part because the mother has failed to pay her share of the costs of the Family Bridges program. He asserts that the merits of the appeal are weak.
I am satisfied that an extension of time is in the interests of justice.
The mother had a right to appeal the final order of the trial judge and the right to seek leave to appeal the award of costs. The final order reverses custody of R. and prevents the mother from having any contact with R. for a period of time, and the mother is subject to an award of substantial indemnity costs. The mother was only three days late in serving her notice of appeal. Even if she decided to appeal only after she received the father’s costs submissions, she formed the intention to appeal within 30 days of the final order. The final order has been implemented to the extent that R. is residing with her father, and they are participating in the After Care program. R.’s contact with her mother is suspended. Other than the mother’s non-payment of her share of the Family Bridges program required under para. 20 of the final order (it is a financial provision that would be stayed on appeal), the mother has complied with the final order. The therapists have indicated that her involvement in the After Care program is suspended during her appeal.
I am not prepared to say that there is no potential merit to this appeal. In view of the very short delay, the strength of the proposed appeal is not a compelling factor in this case. The mother has a right to appeal the final order and a three-day delay should not prevent her from doing so.”