Nova Scotia Court of Appeal
Citation: Ezurike v. Gbeve, 2023 NSCA 23
Date: 20230330
Docket: CA 521510
Registry: Halifax
Between:
Chinedu Ezurike
Applicant
v.
Selom Angela Gbeve
Respondent
Judge: |
Bryson J.A. |
Motion Heard: |
March 23, 2023, in Halifax, Nova Scotia in Chambers |
Held: |
Motion dismissed without costs |
Counsel: |
Chinedu Ezurike, appellant Selom Angela Gbeve, respondent |
Decision:
Introduction
[1] Chinedu Ezurike wants to appeal a Corollary Relief Order. But he is too late. He asks for an extension of the time to file his appeal.
[2] The Corollary Relief Order was issued December 5, 2022, following a two day trial on November 7 and 8, 2022, before the Honourable Justice Samuel Moreau of the Nova Scotia Supreme Court – Family Division. Apparently Justice Moreau issued an oral decision. There is no transcript.
[3] The Corollary Relief Order recites findings that Mr. Ezurike has an annual income of $39,113.64 and his former spouse, Selom Gbeve, has an income of $31,922.88. The Order provides for primary care and residence of the two children of the marriage to be with Ms. Gbeve. The Order allows for holiday and parenting time. Mr. Ezurike is ordered to pay child support in the “Guideline amount of $576.48 per month”, beginning December 1, 2022. No retroactive child support was ordered.
[4] The Order divides matrimonial property by requiring Mr. Ezurike to transfer ownership of the couple’s motor vehicle to Selom Gbeve “forthwith”. Mr. Ezurike is ordered to pay $10,000 to Ms. Gbeve representing her “share of the remaining matrimonial assets” within 90 days of the Order. The Order also says Mr. Ezurike “shall retain” land and a house located in Imo State, Nigeria “to the extent of this Court’s jurisdiction”.
[5] The intended Notice of Appeal alleges the following errors:
1. Failure to follow the requirements of natural justice: No opportunity to respond to the Respondent’s income statement as it was not provided to the Appelant [sic]; failure to fairly consider the evidence filed by the Appellant that the alleged land and house located in Imo state, Nigeria, does not belong to neither [sic] the Appellant nor the Respondent.
2. No reasons provided for the division of matrimonial assets, specifically the 2009 Toyota Venz [sic], alleged land and house for which no concrete evidence was provided, and the $10,000 ordered to be paid to the Respondent.
3. No reasons provided for the Parenting order, specifically restricting the Appellant’s access to the children to to [sic] every other weekend to very restricted time periods, and granting sole decision making to the Respondent.
4. Error of law by ruling on matrimonial property and assets which does [sic] belongs to neither the Appellant nor the Respondent.
[6] Mr. Ezurike requests the following relief from this Court:
1. The order to pay $10,000 to the Respondent should be reversed.
2. The value of the 2009 Toyota Venza be equally divided between the Appellant and the Respondent.
3. The Appellant shall have more parenting time with the children, specifically from Friday to Sundays, and also overnight.
4. The orders for the Appellant to retain the house and land in Imo State, Nigeria, be rescinded as the appellant owns no such house or land.
5. The Appeal be allowed to proceed given the time constraints and disruptions associated with the Christmas and New Year holidays.
[7] In support of his motion to extend, Mr. Ezurike filed an affidavit. He attended chambers in person and made oral submissions. Ms. Gbeve did not file an affidavit, but attended by telephone and made written and oral submissions.
[8] Neither party was represented at trial or before me in chambers.
Extending Time to Appeal
[9] Civil Procedure Rule 90.37(12) permits a judge to extend or abridge any time limit referred to in Rule 90. In this case, the application to extend time was filed on February 24, 2023. The 30 day period for appealing Justice Moreau’s Order expired on January 4, 2023. When considering whether to exercise its discretion to extend time, the Court will consider a number of factors including:
• Whether the applicant formed a bona fide intention to appeal when the right to appeal existed;
• Whether the applicant had a reasonable excuse for the delay in failing to appeal within the prescribed time;
• The length of delay;
• The presence or absence of prejudice to the respondent;
• The apparent strength or merit of the proposed appeal.
See: Nelson v. Dorey, 2020 NSCA 34, at ¶18-19; Farrell v. Casavant, 2010 NSCA 71, at ¶17; R. v. F.H., 2016 NSCA 70, at ¶11-12; Bellefontaine v. Schneiderman, 2006 NSCA 96, at ¶3-4.
[10] The foregoing factors guide the exercise of the Court’s discretion whether to extend time. Ultimately, the question is whether justice requires that an extension be granted.
Length of the delay
[11] In this case, there was a delay of 51 days before the motion to extend time to appeal was filed. That is not inconsequential. It does not suggest any urgency by Mr. Ezurike. More will be said about urgency later in this decision.
Bona Fide Intention to Appeal/Reason for Delay
[12] Mr. Ezurike says he formed an intention to appeal on “December 8, 2023” [sic]—but his first formal approach to the Court did not occur until 78 days later on February 24, 2023.
[13] Mr. Ezurike’s affidavit explains his delay by saying he had to obtain “supporting letters and documentation from Nigeria”. There were delays to meet with a legal aid lawyer who was unavailable before the holidays. He also says he was unable to meet with friends who helped with previous paperwork. They were busy travelling. Finally, Mr. Ezurike says, “I am self represented. I was not aware that I could file the Notice prior to receiving all supporting evidence. I was also unaware of how the time (30 days) was counted”. The letters exhibited to his affidavit are dated December 16, 2022. Mr. Ezurike does not say when he received them. Mr. Ezurike adds that he wasn’t able to “complete the required forms in English”.
[14] The holidays ended in early January. Mr. Ezurike did not explain when he sought assistance or from whom. He did say he “started the process” on January 5 or 10, but was told he needed an extension. I accept that he did seek help because the proposed Notice of Appeal—especially the relief sought—suggests some legal knowledge and uses language with which Mr. Ezurike is unlikely to be familiar.
[15] English is not Mr. Ezurike’s first language. He must be accorded some latitude. But Mr. Ezurike has been in Canada for 13 years and works here. He does not lack personal or financial resources.
[16] While I am prepared to accept that Mr. Ezurike wished to appeal virtually immediately, he did nothing to give legal effect to his intention for more than two months. He says he had some assistance with his trial, although not in the courtroom. He had access to legal aid, but he does not say when. He says he has not honoured the Corollary Relief Order because he wanted to appeal.
[17] The Court’s website contains a wealth of information about how to appeal. The time for appealing is explained and can be accessed with two icon clicks. Even if Mr. Ezurike felt unable to access the information on the Court website, he apparently made no effort to contact the Court for any explanation of how to proceed until at least early January and then filed nothing until February 24. Although he says he has relied on friends, he never said when he actually met with them or what they did to assist him to advance his appeal. He does not say he had no idea of the appeal period, just that he did not know how it was counted.
[18] Mr. Ezurike’s explanation for his delay is unpersuasive. His delay in applying to the Court and his failure to honour the Corollary Relief Order impair a claim of appealing in “good faith”.
Prejudice
[19] The prejudice to Mr. Ezurike if time is not extended to appeal is apparent. He loses the prospect of challenging the Corollary Relief Order in the Court of Appeal. He says he cannot pay the $10,000 the court has ordered him to give to Ms. Gbeve.
[20] On the other hand, Ms. Gbeve has the care of four children, including two children of the marriage with Mr. Ezurike. As earlier described, by his own admission, Mr. Ezurike has done nothing to abide by the Order under appeal. He seems to be under the impression that by appealing he does not have to obey the Order. He has paid no child support as ordered, although he did say that he was contacted by phone (perhaps by Maintenance Enforcement) and “will begin” support payments “next week”. He has not transferred the motor vehicle to Ms. Gbeve; nor has he paid the $10,000 to her.
[21] An appeal does not act as a stay, but Mr. Ezurike has used his intention to appeal to do nothing. His failure to support his children—which obligation he does not contest—is particularly egregious. There is prejudice to Ms. Gbeve in the uncertainty of a pending appeal. She will have to devote time, energy and some resources to defending the appeal. That is always true. But time is important in the life of a young family and delay in resolution of familial obligations has a greater impact than in many other cases.
Apparent Strength or Merit of the Proposed Appeal
[22] In S.E.L. v. Nova Scotia (Community Services), 2002 NSCA 62, Justice Cromwell described the necessity to show an arguable issue with respect to a proposed appeal:
[15] One relevant consideration is the merits of the proposed appeal. Of course, it is not appropriate at this very preliminary stage of a proposed appeal to attempt a searching examination of the merits but, where, as here, the material before the Court permits it, consideration of whether arguable grounds of appeal exist is appropriate. An arguable ground of appeal has been defined as a realistic ground, which, if established, appears of sufficient substance to be capable of convincing a panel of the Court to allow the appeal: Coughlan v. Westminer Canada Ltd. (1993), 125 N.S.R. (2d) 171 (C.A. Chambers) at 174 - 175.
[23] In R. v. R.E.M., 2011 NSCA 8, Justice Beveridge explained what the applicant must demonstrate:
[72] However, the applicant must be able to identify and set out a ground that is at least arguable. I had the advantage of having the whole of the trial record, written and oral argument before the SCAC and the decision of the SCAC judge. Mr. M. has had every opportunity to file evidence and submissions and make oral argument to address the requirement that his proposed appeal have at least one arguable issue. I would not hesitate to grant an extension of time for Mr. M. if he articulated, or I could discern, any arguable issue upon which leave to appeal might be granted by this Court. I could find none, and accordingly his Motion to extend time to file an Application for Leave to Appeal and Notice of Appeal is dismissed.
[24] In S.E.L., Justice Cromwell also observed that the absence of “evidentiary” basis for a proposed appeal was important regarding the exercise of discretion to extend time. Also see R. v. White, 2016 NSCA 20, at ¶21-22.
[25] To repeat, the proposed grounds of appeal are:
1. Failure to follow the requirements of natural justice: No opportunity to respond to the Respondent’s income statement as it was not provided to the Appellant; failure to fairly consider the evidence filed by the Appellant that the alleged land and house located in Imo state, Nigeria, does not belong to neither the Appellant nor the Respondent.
2. No reasons provided for the division of matrimonial assets, specifically the 2009 Toyota Venza, alleged land and house for which no concrete evidence was provided, and the $10,000 ordered to be paid to the Respondent.
3. No reasons provided for the Parenting order, specifically restricting the Appellant’s access to the children to every other weekend to very restricted time periods, and granting sole decision making to the Respondent.
4. Error of law by ruling on matrimonial property and assets which does belongs to neither the Appellant nor the Respondent.
[26] These complaints are largely unsupported by any evidence. As earlier indicated, Mr. Ezurike’s affidavit does attach two letters, dated December 16, 2022, from his mother and the village chairman from Mr. Ezurike’s home town in Nigeria, denying that he owns property there. There is no explanation why this evidence was not presented at trial. During his submissions, Mr. Ezurike insisted that he does not own any property in Nigeria as the judge seemed to believe.
[27] Ms. Gbeve replied that the $10,000.00 represented her contribution to a home built in Nigeria in which Mr. Ezurike’s family now lives. That does not necessarily imply that Mr. Ezurike owns the property.
[28] Mr. Ezurike countered that there was no documentary evidence at trial supporting Ms. Gbeve’s claim of making this financial contribution.
[29] During oral argument, it seemed that Mr. Ezurike’s fundamental concern was the $10,000 payment. He did not address the other grounds of appeal and appeared to express satisfaction with the current visitation arrangements.
[30] Any disagreement between the parties respecting the $10,000 payment was apparently resolved by the trial judge in favour of Ms. Gbeve. Credibility findings would have been required. Mr. Ezurike would have to show the judge made a palpable and overriding error of fact to overcome this finding. This would be a very difficult ground of appeal on which to succeed.
Conclusion
[31] The delay here is not insignificant. Mr. Ezurike’s explanation for the delay is vague and unpersuasive. His use of the delay to avoid honouring the Corollary Relief Order raises a question of a good faith intention to appeal. The grounds of appeal do not raise obvious errors by the judge, although one cannot say they raise no arguable issue.
[32] On balance, it is not in the interest of justice to extend time to appeal.
[33] The motion is dismissed, without costs.
Bryson J.A.