Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 2022-03-11 DOCKET: M53255

Roberts J.A. (Motions Judge)

BETWEEN

Farid Khorramshahi Moving Party

and

Shadab Iranpour Responding Party

Counsel: Farid Khorramshahi, acting in person Shadab Iranpour, acting in person

Heard: March 8, 2022 by video conference

Reasons for Decision

[1] Mr. Khorramshahi seeks an order extending the time to file his notice of appeal from the order of the motion judge Dennison J. dated December 8, 2021. The motion judge dismissed Mr. Khorramshahi’s motion to compel Ms. Iranpour, his former spouse, to attend to have a religious divorce signed and schedule a contempt hearing on a priority basis. She ordered him to pay $2,200 in costs to Ms. Iranpour.

[2] Under r. 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, an appeal to an appellate court shall be commenced by serving a notice of appeal and the required certificate within 30 days after the order appealed from was made. This means that Mr. Khorramshahi’s deadline to serve a notice of appeal on Ms. Iranpour was January 7, 2022.

[3] Mr. Khorramshahi served Ms. Iranpour by email with his notice of appeal and certificate of evidence at 7:57 p.m. on January 7, 2022. In his notice of appeal, he mistakenly noted the date of the order under appeal as October 8, 2021. The court office rejected his filing without an order extending the time to file the notice of appeal. On February 25, 2022, at 4:23 p.m., Mr. Khorramshahi served Ms. Iranpour by email with his present motion to extend the time for filing.

[4] Ms. Iranpour opposes the requested extension.

[5] The overarching consideration on this motion is whether the justice of the case warrants the requested extension. Included in this consideration are the following well-established criteria: the length of and explanation for the delay; a bona fide intention to appeal formed within the 30-day appeal deadline under r. 61.04(1) of the Rules of Civil Procedure; any prejudice caused by the delay; and the merits of the proposed appeal: see Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[6] Mr. Khorramshahi’s affidavit in support of his motion is very brief. While he explained in his affidavit why his materials were rejected by the court office, he failed to provide any explanation for his delay in serving them past the January 7, 2022 deadline. Service by email after 4:00 p.m. is deemed under r. 16.01(4)(b)(iv) to be service on the next day; the next day in this case being a Saturday, service is deemed under r. 3.01(1)(d) to have taken place on Monday, January 10, 2022. [1] Similarly, there is no evidence that Mr. Khorramshahi formed an intention to appeal within the 30-day appeal period. I am not prepared to infer that Mr. Khorramshahi formed the requisite intention to appeal given that the notice of appeal and certificate of evidence were served out of time. There is also no explanation provided in Mr. Khorramshahi’s supporting affidavit for the delay in bringing this motion almost two months after his filing was rejected by the court office. While the delay in the commencement of the appeal is short, the delay in bringing this motion is not, especially in the context of family law litigation where finality is essential to allow families to move on with their lives.

[7] The fact that Mr. Khorramshahi is self-represented on this motion does not excuse the delay or the absence of explanations for his delay. Mr. Khorramshahi was represented by counsel before the motion judge and he advised that he had assistance in preparing his appeal materials and on this motion.

[8] I turn to the merits of the proposed appeal. Mr. Khorramshahi has only provided the reasons of the motion judge and his proposed notice of appeal. I do not have a copy of the motion judge’s formal order, nor do I have a copy of the appeal book or factum proposed to be filed, although Mr. Khorramshahi advised that they were prepared. The only reference to the merits of the appeal in Mr. Khorramshahi’s supporting affidavit is his statement that: “Without this extension, the appellant would lose the opportunity to appeal a decision which has fundamentally ignored the evidences [sic] which was open with the Superior Court of Justice on Dec. 2021”.

[9] As indicated in his materials and submissions on this motion, his principal ground of appeal is that the motion judge erred in failing to accept the expert evidence proffered by his expert with respect to Iranian law. He also argues that the motion judge erred in preferring the expert evidence given by Ms. Iranpour’s expert that Ms. Iranpour could not release her Iranian dowry (“Mahrieh”) and that Iranian courts had jurisdiction over this matter.

[10] Based on the materials provided, this ground has no prospect of success. It was open to the motion judge to prefer the evidence of Ms. Iranpour’s expert over the evidence of Mr. Khorramshahi’s expert. This evidence supported the motion judge’s determination that she had no jurisdiction to grant the order sought by Mr. Khorramshahi. Mr. Khorramshahi has not pointed to any arguable error apparent in her reasons or decision.

[11] Finally, I consider whether there is any prejudice to Ms. Iranpour because of Mr. Khorramshahi’s delay. In my view, again in the context of family law litigation, it would be prejudicial to subject Ms. Iranpour to further costs in responding to an unmeritorious appeal: see Bobel v. Humecka, 2021 ONCA 757, at para. 6.

[12] Mr. Khorramshahi has not met his onus on this motion. I am not persuaded that the justice of the case warrants an extension of time to appeal. Rather, the justice of the case warrants the refusal of the requested extension.

[13] Accordingly, the motion is dismissed. Although self-represented on this motion, Ms. Iranpour consulted with her lawyer about Mr. Khorramshahi’s motion. She is therefore entitled to costs of this motion in the amount of $500 payable forthwith by Mr. Khorramshahi.

“L.B. Roberts J.A.”

Footnotes

[1] This is because, r. 3.01(1)(d) specifies that service of a document made after 4 p.m. or at any time on a holiday shall be deemed to have been made on the next day that is not a holiday. Under r. 1.03(1), “holiday” is defined as including any Saturday or Sunday.