Issasi v. Rosenzweig, (2011) 277 O.A.C. 391 (CA)

• Judge: Weiler, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 06, 2011
• Jurisdiction: Ontario
• Citations: (2011), 277 O.A.C. 391 (CA);2011 ONCA 112

Issasi v. Rosenzweig (2011), 277 O.A.C. 391 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.019

Amparo Marlen Rodriguez Issasi (applicant/respondent/responding party) v. Kenneth Espinal Rosenzweig (respondent/appellant/moving party)

(M39536; C52822; 2011 ONCA 112)

Indexed As: Issasi v. Rosenzweig

Ontario Court of Appeal

Weiler, J.A.

February 8, 2011.

Summary:

An order made pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, declared that Rosenzweig was wrongfully detaining his daughter in Ontario, and ordered that she be returned to her mother. Rosenzweig appealed. His counsel sought to perfect the appeal, but was advised that he was one day late. Rosenzweig moved for an order granting leave to extend the time to perfect his appeal to the day following the determination of the motion.

The Ontario Court of Appeal, per Weiler, J.A., having regard to all of the factors governing the test for extending the time to perfect an appeal, granted the motion.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The appellant brought a motion for an order granting leave to extend the time to perfect his appeal to the day following the determination of the motion - Rule 3.02(1) of the Ontario Rules of Civil Procedure provided that the court might extend the time prescribed by the rules on such terms as were just - The Ontario Court of Appeal, per Weiler, J.A., stated that "[a]lthough this motion involves a request for leave to extend the time to perfect an appeal, it is useful to consider the factors that apply when determining whether to exercise discretion to extend the time for filing a notice of appeal ... They are: (1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of the delay and explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) whether the 'justice of the case' requires it" - See paragraph 4.

Practice - Topic 9311

Appeals - Perfecting appeals - Time for - Extension of - [See Practice - Topic 9002 ].

Practice - Topic 9311

Appeals - Perfecting appeals - Time for - Extension of - On an application before the motion judge at first instance, counsel's submissions and the judge's comments were recorded - The appellant's counsel ordered a transcript of the motion hearing for the appeal - On seeking to perfect the appeal, he was advised that he was one day late - The time to perfect an appeal was 30 days after filing the notice of appeal where no transcript of evidence was required for the appeal (rule 61.09(1)(a)), and 60 days "after receiving notice that the evidence has been transcribed" where a transcript of evidence was required for the appeal (rule 61.09(1)(b)) - The Ontario Court of Appeal, per Weiler, J.A., did not agree with counsel's argument that rule 61.09(1)(b) applied - Although counsel might require a transcript for purposes of arguing the appeal, the term "evidence" referred to the transcription of evidence that was sworn or affirmed - Thus, rule 61.09(1)(a) applied and the appellant required leave to perfect - See paragraphs 6 and 7.

Practice - Topic 9311

Appeals - Perfecting appeals - Time for - Extension of - An order made under the Hague Convention declared that Rosenzweig was wrongfully detaining his daughter in Ontario, and ordered that she be returned to her mother in Mexico - Rosenzweig appealed - His counsel mistakenly understood that the time to perfect the appeal was 60 days rather than 30; he was one day late - Rosenzweig moved to extend the time to the day following the determination of the motion - The mother submitted that the appeal itself was an abuse of process inasmuch as Rosenzweig's sister (JRE) was the real party behind the appeal - The Ontario Court of Appeal, per Weiler, J.A., granted the motion - The intention to appeal was maintained, and the explanation for the delay was reasonable - As the mother filed no personal affidavit in response, there was no basis on which to infer prejudice - The requested extension was brief - The court could not say that the appeal had so little merit that the right of appeal should be denied - As for the justice of the case, while the record raised the suspicion that JRE was doing indirectly what she had no standing to do directly, the issues of standing and abuse of process were best dealt with as a preliminary issue by the appeal panel.

Practice - Topic 9340

Appeals - Perfecting appeals - Failure to perfect appeal - Powers of court - [See third Practice - Topic 9311 ].

Cases Noticed:

Monteith v. Monteith, [2010] O.A.C. Uned. 40; 2010 ONCA 78, appld. [para. 4].

Rizzi v. Mavros et al. (2007), 224 O.A.C. 293; 85 O.R.(3d) 401 (C.A.), refd to. [para. 4].

Kefeli v. Centennial College of Applied Arts and Technology et al., [2002] O.A.C. Uned. 187; 23 C.P.C.(5th) 35 (C.A.), refd to. [para. 4].

Duca Community Credit Union Ltd. v. Giovannoli et al. (2001), 142 O.A.C. 146 (C.A.), refd to. [para. 10].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 3.02(1) [para. 2]; rule 61.09(1) [para. 6].

Authors and Works Noticed:

Archibald, Todd L., Killeen, Gordon, and Morton, James C., Ontario Superior Court Practice, 2011 (2010), p. 580 [para. 4].

Counsel:

Jeffery Wilson, for the appellant/moving party;

Philip Epstein, for the respondent/responding party.

This motion was heard in Chambers on January 6, 2011, before Weiler, J.A., of the Ontario Court of Appeal, who delivered the following judgment, dated February 8, 2011.