By Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law*

This article discusses the deadline for starting an appeal, and the test for an extension of time if the deadline is missed. It also highlights the part of the test that focuses on the merits of the appeal, and provides some tips and tricks to help you navigate this important appeal deadline.

 
What Deadline Applies to Starting an Appeal?

You don’t always have 30 days! So be careful.

If it is an appeal as of right (no leave required), the deadline to appeal is within the following number of days after the making of the order:

  • 30 days for an appeal to the Court of Appeal for Ontario or the Divisional Court, unless a statute or the Rules of Civil Procedure provide otherwise;
  • 30 days for an appeal to the Superior Court of Justice of a final order (or a temporary order under the Child, Youth and Family Services Act, 2017); or
  • 7 days for an appeal to the Superior Court of Justice of a temporary order under any other statute.

If leave is required, the deadline to bring your motion for leave is within 15 days after the making of the order for leave to appeal to the Court of Appeal for Ontario or the Divisional Court, unless a statute or the Rules of Civil Procedure provide otherwise, or for leave to appeal to the Superior Court of Justice.

Common Mistakes

  • Timing: Thinking that the time doesn’t start to tick until you get the issued and entered Order back, or until the court decides costs. Time starts ticking as soon as you receive the decision, whether that be by a formal Order, by Reasons, or by an Endorsement.
  • Finality: Not understanding if the decision is temporary or final.
  • Court: Appealing to the wrong court.
  • Leave: Not knowing if you need leave to appeal.

Extension of Time

What if you miss the deadline to appeal? The parties may agree to an extension of time, or a single judge of the appeal court can hear a motion for an extension of time.

In the civil context, the test granting a motion for an extension is well-established. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

  • (1) whether the moving party formed a bona fide intention to appeal within the relevant time period,
  • (2) the length of and explanation for the delay,
  • (3) any prejudice to the responding party, and
  • (4) the merits of the proposed appeal: Enbridge Gas Distributions Inc. v. Froese, 2013 ONCA 131 (CanLII), at para 15.

This test applies in family law cases. However, in family law cases affecting the rights of children, the overarching inquiry into whether the extension is in the interests of justice is whether the extension would be in the best interests of the children: Collins v. Tiveron, 2024 ONCA 447 (CanLII), at para 13, citing various cases.

Some case law holds that no one factor is determinative, and that ultimately all elements of the test are to be considered together, and the overarching consideration is what the justice of the case requires: Alaycheh v. Alaycheh, 2020 ONSC 6006 (CanLII), at paras 13-14, citing various cases.

The Merits of the Proposed Appeal

However, other case law holds that the merits of the proposed appeal is the most important consideration: Liu v. Chan, 2024 ONCA 699 (CanLII), at para 29.

Anecdotally, I have seen more focus on the merits of the appeal in recent case law, with numerous judges dismissing a motion for an extension of time based on this factor.

The case law is clear that a lack of merit of the proposed appeal can be determinative. The question is whether the appeal has “so little merit” that the moving parties should be deprived of the important right to appeal: Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328 (CanLII), at para 2, citing various cases.

Where an appeal is completely devoid of merit, it is doomed to fail. For example, in Liu v. Chan (2024), no legal errors were identified and the appellant only sought to re-argue factual matters, such that there was virtually no chance of success on appeal. Even though the self-represented proposed appellant was only four days late with his Notice of Appeal, the Court of Appeal for Ontario dismissed his motion for an extension of time because the other factors were overwhelmed by the complete lack of merit in his proposed appeal: Liu v. Chan, 2024 ONCA 699 (CanLII), at paras 22, 33, & 36.

Takeaways and Practical Tips

  • Check your timelines! Diarize the appeal deadline as soon as you get an unfavourable decision that you think your client might want to appeal.
  • Check the appeal route and if leave to appeal is required! Lam Family Law has a chart to help with both of these issues.
  • Get a second opinion (even an informal one) on the merits of a potential appeal.
  • If your client misses the appeal deadline, do not assume they will be granted even a short extension (e.g., a few days, or a week). Your client needs to address all parts of the test for an extension of time.
  • Your client’s affidavit in support of an extension of time may include evidence about any delay in retaining counsel. But be careful how much detail you give beyond making inquiries and securing funds to retain counsel. No information should be included that might inadvertently waive solicitor-client privilege.
  • Think about if you need to bring other types of motions as well (e.g., a motion for a stay pending appeal), and the timing of those motions in relation to the main appeal.

*with thanks to Maria Golarz and Sierra Larmand for their suggestions and edits.