Can An Appeal Be Heard If The Applicant Misses The Deadline? feature image

Can An Appeal Be Heard If The Applicant Misses The Deadline?

One of the most valuable services a family lawyer can provide is helping to make sure that a client does not miss critical timelines associated with a matter being litigated. While the court process may move slowly, it’s important for those involved to abide by the time limits set by the court as well as statutes of limitations (the time in which someone may bring an action) established in law. With that said, there are situations in which a court may extend someone’s time to take action on a matter. In a recent decision from the Court of Appeal of Alberta, the court explains the test it must apply when someone misses the timeline for filing an appeal.

Applicant wants to appeal spousal support decision

The matter before the court was related to a decision that held the respondent was no longer responsible to make child support payments to the applicant, nor did he owe any arrears. Additionally, the applicant was also ordered to pay the respondent $10,000 in retroactive section 7 expenses at a rate of $10 per month. The applicant sought to appeal this decision.

Applicant misses deadline to file appeal

The Alberta Rules of Court state that a notice of appeal must be filed within one month after the date of a decision. In this case, the original order was issued on December 10, 2020, fiving the applicant until January 10, 2021 to file an appeal. The appeal was filed on March 26, 2021, more than two months after the deadline had passed.

Can the appeal deadline be extended?

The court stated that while the applicant had missed the deadline to appeal, the court could extend the deadline at its discretion by considering the following factors:

  1. a bona fide intention to appeal held while the right to appeal existed;
  2. an explanation for the failure to appeal in time that serves to excuse or justify the lateness;
  3. an absence of serious prejudice such that it would not be unjust to disturb the judgment;
  4. the applicant must not have taken the benefits of the judgment under appeal; and
  5. a reasonable chance of success on the appeal, which might better be described as a reasonably arguable appeal.

In this case, the court found that the applicant had satisfied the first factor, in that she had a bona fide intention to appeal. In looking at the second factor, the court stated that the deadline was missed due to a medical issue, which satisfied the court. The court found that there would be no serious prejudice in allowing the appeal to be filed late. In regards to the fifth factor, the court stated that the applicant was appealing a decision that had not benefitted her. Finally, the court held that there was at least some reasonable chance of the appeal being successful.

While in this case, the appeal was allowed to be filed late, but things would have been much easier, quicker, and more affordable if the deadline was met in the first place.

To speak to one of our family law lawyers about your family law concerns, call 1-800-480-3534 or contact us online and make an appointment. We represent clients primarily in Calgary and surrounding areas. At HMC Lawyers, our approach focuses on finding positive solutions through negotiation and mediation on behalf of our clients. We endeavour to resolve disputes in an efficient and timely manner, thereby minimizing stress to our clients. If court is required, we have the support of a respected litigation firm.

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