Novic v. Novic

THE CHIEF JUSTICE—The issue in this matter, which was referred to the Court by the Chief Justice, was whether this Court had jurisdiction to entertain a custody appeal under s. 18(2) of the Divorce Act, R.S.C. 1970 c. D-8. The matter is raised by the divorcing wife, who was respondent in this Court, which set aside the order of custody made by the Ontario Court of Appeal and reinstated the order for custody made in favour of the divorcing husband.

If the mother of the children is correct in her submission, then this Court’s order must be quashed ex debito justicia and the judgment of the Ontario Court of Appeal in her favour must stand.

The question of this Court’s jurisdiction to entertain the appeal was not raised in the appeal here by the respondent nor, indeed, by the appellant father. The case proceeded here in the ordinary way upon leave to appeal being obtained and granted to enable the father’s appeal to proceed. Moreover, this Court’s jurisdiction was not so obviously at issue as to expect the Court to raise it ex proprio motu.

The issue, now raised for the first time, arises out of uncontested facts, and the disposition of this matter depends entirely on the meaning and application of s. 18(2) of the Divorce Act. This provision reads as follows:

The judgment of the Ontario Court of Appeal was delivered in Court on October 2, 1981. It is true that the formal order was not entered until October 29, 1981 but this did not affect the fact that the pronouncement of the judgment was when it was delivered on October 2, 1981. An application by the father for leave to appeal to this Court was made on November 2, 1981, having been properly served on October 16, 1981. Although

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November 2 was literally beyond the thirty-day period prescribed for filing the application, November 1 fell on a Sunday, and hence under the relevant applicable law, November 2 was within the prescribed filing period.

That, however, is not questioned. What is questioned is the failure to obtain leave within the thirty-day period or to obtain an extension of time within that period. As matters stood, this Court on November 2, 1981 fixed November 16 as the date for hearing the father’s application, this being the first motion date for the hearing of applications for leave and being in accordance with Supreme Court Rule 24(1). The mother’s case turns entirely on the fact that an extension of time to November 16 or any other date was not obtained on November 2, 1981.

The principal authorities relied on by counsel for the mother are Massicotte v. Boutin, [1969] S.C.R. 818, and Kumpas v. Kumpas, [1970] S.C.R. 438. Those were cases in which leave to appeal was not sought within the prescribed statutory period and hence no question of extension of time arose. Indeed, applications for leave to appeal were not brought within the statutory period, so the cases fell for want of jurisdiction. The present case is different. There was an application for leave to appeal brought within the required period and the question that remained to support jurisdiction was whether leave was granted within the period or whether time for granting leave was extended within the period. This Court, within the period, fixed November 16, 1981 as the time for hearing the application for leave. This was surely an extension of time and brought the case properly before the Court.

It follows, in my view, that the motion to quash fails and must be dismissed with costs.

I should add that nothing turns on the fact that the appellant father invoked s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19. The respondent suffered no prejudice since it was well understood that the parties were concerned with the issue of

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custody arising under the Divorce Act.

Solicitors for the appellant: Epstein, Cole, Toronto.

Respondent acted on his own behalf.