McMullin-Mullin v. Henley, (2013) 332 N.S.R.(2d) 130 (CA)

• Judge: Farrar, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 19, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 332 N.S.R.(2d) 130 (CA);2013 NSCA 85

McMullin-Mullin v. Henley (2013), 332 N.S.R.(2d) 130 (CA);

    1052 A.P.R. 130

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JL.024

Terra McMullin-Mullin (appellant) v. Trevor Gerald Henley (respondent)

(CA 415995; 2013 NSCA 85)

Indexed As: McMullin-Mullin v. Henley

Nova Scotia Court of Appeal

Farrar, J.A.

July 9, 2013.

Summary:

A father applied to vary child support. At the time the matter was called to the courtroom, the father had not arrived. The court dismissed the application. The father arrived a few minutes later and the court agreed to proceed. The court granted the mother's request for an adjournment and scheduled a future date for the hearing. The wife applied for an order extending the time to file an appeal.

The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the application.

Courts - Topic 2181

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - General - [See Practice - Topic 9002 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - A father applied to vary child support - At the time the matter was called to the courtroom, the father had not arrived - The application judge dismissed the application - The father arrived a few minutes later and the application judge agreed to proceed - The application judge granted the mother's request for an adjournment and scheduled a future date for the hearing - The wife applied for an order extending the time to file an appeal - The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the application - The court assumed that the mother had a good faith intention to exercise her right of appeal; that the delay was not so inordinate as to cause prejudice to the father; and, there were valid reasons for the delay - However, the mother had not shown there were circumstances present which would warrant an extension of time, in particular, she had not shown that there was a strong case for error at trial and real grounds of appeal justifying appellate interference - The mother's argument that the application judge was functus had no chance of success - It was well-established in Nova Scotia that until the written order was issued, the judge had discretion to withdraw, modify or even change his or her decision.

Cases Noticed:

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 10].

MacLellan v. MacDonald (2010), 290 N.S.R.(2d) 317; 920 A.P.R. 317; 2010 NSCA 34, refd to. [para. 13].

Burke v. Sitser et al. (2002), 208 N.S.R.(2d) 337; 652 A.P.R. 337; 2002 NSCA 115, refd to. [para. 13].

Credit Foncier franco-canadien v. Fort Massey Realties Ltd. and Spiropoulos (1981), 49 N.S.R.(2d) 646; 96 A.P.R. 646 (T.D.), affd. (1982), 52 N.S.R.(2d) 600; 106 A.P.R. 600 (C.A.), refd to. [para. 13].

Doncaster v. Field (2013), 330 N.S.R.(2d) 105; 1046 A.P.R. 105; 2013 NSSC 149, refd to. [para. 14].

Counsel:

Appellant, in person;

Respondent, in person.

This application was heard in Chambers, at Halifax, Nova Scotia, on June 19, 2013, by Farrar, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on July 9, 2013.