David A. Balaban

The appellant, Dave Marcotte, sought an extension of time to perfect his appeal of a divorce order, arguing the date of separation used in the proceedings was incorrect.

The Court of Appeal dismissed the motion, finding the appeal fundamentally misconceived because the proper forum for challenging the date of separation was a motion under r. 25(19) of the Family Law Rules in the Superior Court, which Mr. Marcotte had already commenced.

The court held that the appeal would be rendered moot by the outcome of that motion and that the merits of the appeal did not justify an extension of time.

Costs of $2,500 were awarded to the respondent, Christina Marcotte.

The appellant appealed the dismissal of her claim on a Rule 21 motion, arguing the motion judge failed to consider whether the limitation period was tolled under s. 7 of the Limitations Act due to her mental and psychological condition.

The Court of Appeal allowed the appeal, finding that based on the statement of claim, it was not plain and obvious that the claim was statute-barred.

The order of the motion judge was set aside and the defendant's Rule 21 motion was dismissed.