NB Court of Appeal rejects argument that ex-wife's appeal is groundless or frivolous
If a status hearing judge decides that requiring a party to perfect their appeal by a specified date would best serve the interests of justice, one could not appeal from this decision, a New Brunswick court recently said.
The parties of the case married in March 2015 and separated in August 2019. In early November 2020, the husband filed a divorce petition. He sought an order for the unequal division of property under N.B.’s Marital Property Act, 2012.
In late November 2020, the wife was served with the divorce petition in Florida. In January 2021, she filed an answer and counter-petition agreeing to divorce. However, she asked for an equal division of the marital property and claimed spousal support.
In the wife’s absence, a judge of the New Brunswick Court of Queen’s Bench granted the divorce in July 2021. Two months later, the judge issued an order for the unequal division of the marital property.
On Oct. 12, 2021, the woman filed a notice of appeal seeking to set aside the judge’s order. She argued that the matter should not have proceeded as an uncontested divorce. However, she failed to perfect her appeal within the time required by rule 62.15 of the Rules of Court.
The registrar’s office sent two requests for status reports then scheduled a status hearing. At this hearing, a judge of the appellate court ordered the woman to perfect her appeal on or before Oct. 4, 2022 or else the registrar would dismiss it for delay.
The woman perfected the appeal on Oct. 4, 2022. Thus, the appellate court scheduled the matter for hearing this Jan. 31. In late October 2022, the man moved to dismiss her appeal.
Appeal not frivolous
In McLean v. McLean, 2023 NBCA 2, the New Brunswick Court of Appeal dismissed the man’s motion to dismiss.
First, the appellate court ruled that the appeal was not groundless or frivolous.
The woman’s appeal raised valid questions about the filing and service of documents and the legal effect of the actions that the parties took or failed to take, the appellate court said. The appeal’s result was not clear and beyond doubt, the court added.
Second, the Court of Appeal said that it could not dismiss the appeal for delay since the woman complied with the date for perfection.
Ngambo and Ngambo v. Minister of Health and Community Services, 2002 NBCA 82 provided that the test applicable to a status hearing judge’s authority to dismiss based on delay for failure to perfect was whether a measure less drastic than dismissal would not serve the interests of justice.
In this case, the status hearing judge found that ordering the perfection of the appeal on or before Oct. 4, 2022 would best serve the interests of justice. According to the appellate court, its panel hearing the motion for dismissal for delay could not second-guess the judge’s decision.
