Court Cases & Orders

Hurricane Fiona: A Good Excuse for Missing a Family Court Deadline?

Written by Russell Alexander / (905) 655-6335

Hurricane Fiona: A Good Excuse for Missing a Family Court Deadline?

The world has seen more than its share of turmoil lately:  We’re closing in on three years of dealing with a pandemic.  There’s been a Russian-led war in the Ukraine for more than a year.  And just the other day, there was an earthquake in Turkey that has tragically killed tens of thousands of its citizens.

Although Canada has been relatively unscathed, we did have a severe weather event on September 24, 2022, when Hurricane Fiona hit land in Prince Edward Island. 

That hurricane wreaked some havoc in region. Buildings were damages and entire communities lost power. It was blamed for the death of one 73-year-old woman. 

And in one divorce case out of PEI, it was also blamed for a husband’s failure to file his Notice of Appeal on time.  

In asking the court for a formal extension, the husband explained that Hurricane Fiona took out his power for a few days, and he had no Wi-Fi to allow him to research and prepare the materials he needed for his appeal. He also claimed he was mentally stressed during this time, and had a pre-existing medical condition that was exacerbated by the whole ordeal. This left him physically unable to prepare the appeal documents in time, he said. 

The wife objected to an extension.  Even taking Hurricane Fiona into account, the husband had no valid excuse for his delay, she claimed.  He had missed the appeal-filing deadline by a full three weeks by the time he got around to asking for an extension.  As for so-called medical excuse:  She noted it did not seem to prevent him from advancing other litigation against her, during this exact same time-period.

The court started by looking at the procedural rules. Compliance with the time limits for filing a Notice of Appeal is a “critical requirement”, and “Time limits are generally construed to be mandatory”.  This meant that unless there is a provision in the rules that allows for an extension, then the fact the husband did not comply would outright preclude him from bringing his appeal.

On the other hand, under the PEI Rules a court has the discretion to grant an extension “on such terms as are just”.   The court explained the governing principles: 

In exercising discretion to grant relief from compliance with the time limit for commencing an appeal, appeal courts attempt to reconcile the competing interests of finality and certainty for the successful party to the proceeding and the effect for the unsuccessful party of failing to comply with the time limit.  … [one] competing interest is that “it is desirable to have appeals decided on their merits,” unless a respondent has been prejudiced by the delay.

In determining the right balance in the case, the court had to consider the “interests of justice”, and ask itself these four questions: 

  • Did the husband have a good faith intent to appeal? 
  • Did his appeal have merit?
  • Did he have a reasonable excuse for the delay in not filing within the prescribed time?
  • Were there exceptional or special circumstances justifying the extension of time?

The court then turned to the facts.  The acknowledged that local courthouses were not operations for a 10-day period due to lack of electricity.  The husband professed to making his best efforts during that time and had indeed taken a few steps, but was apparently hindered by the lack of power and Wi-Fi.  The court also heard from the husband’s family physician, who confirmed he had anxiety and panic disorder (with the attendant difficulties in concentrating and communicating) as well as Crohn’s disease. 

In terms of the merits of the case, all the husband had to show was that the appeal was “arguable”, which the court found it was.  A brief delay would cause the wife no significant prejudice to her case.

In the end, the court ruled the husband had a reasonable excuse for the missed deadline, and granted him a short extension.  

[Wonder how the excuse of “my dog ate my court documents” would go over with a court?]

Full text of the decision:

R. v. .R, 2023 PECA 1 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.