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Family Law... I want to Appeal but I've missed the Appeal Window: Now What?

Ashley Donald – September 2018

Following a Trial, the Judge who heard the matter makes a decision either orally to the parties, or, in writing.

If the Judge’s decision is flawed in law or in fact, and you feel this error resulted in a miscarriage of justice, you may wish to Appeal the decision.  To Appeal, you have 30 days after the date of the Order finalizing the decision to file your completed Notice of Appeal to the Nova Scotia Court of Appeal.  But what if you miss this window?  Are you up the proverbial creek without a paddle?

There are some instances where the Court of Appeal will grant an extension to file your Notice of Appeal.  The Court is given this authority by the Civil Procedure Rules. In order to seek an extension, you must file a Motion with the Court of Appeal to extend the time for filing.

Whether the Court will allow an extension comes down to a three-part test, as illustrated in the case Bellefontaine v. Schneiderman, 2006 NSCA 96. The person seeking the extension to file the appeal (“the Applicant”) must show the following:

1.   They had a “bona fide” intention to appeal when the right to appeal existed.

This means the Applicant had a genuine intention to make the appeal within 30 days from the date of the decision. Showing that you started the appeal process (or attempted to) during the 30 days is essential to meeting this prong of the test

2.  The Applicant had a reasonable excuse for not filing within the 30-day window.

You have to prove that your excuse for missing the 30-day window is “reasonable”.  One reason may be that you were trying to secure legal counsel or funding for legal counsel, or you encountered an illness that prevented you from perfecting the appeal.

3.   There must be compelling or exceptional circumstances present that warrant an extension of time, including that there is a strong case for error at trial and real grounds for justifying the appeal.

Not only must you show a genuine intention to file within the 30 days, and a reasonable excuse for missing the window, you must also show that your appeal has some merit.

The final, overarching question the Court will consider is this: Does justice require that an extension be granted? If yes, you are likely to succeed in obtaining an extension.

If you received a decision that you believe is flawed, it is important to contact legal counsel as soon as possible, and indicate to him or her that you are seeking to appeal the decision.  The sooner you can get legal advice, the better chance you have that your appeal will be heard.

If you missed your 30-day window to appeal and believe your circumstances fit the above three-part test, MDW Law would be happy to help you move forward with seeking an extension to your appeal.

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