Court of Appeal for Ontario

Date: 2025-07-07
Docket: M56070 (COA-25-CV-0469)
Judge: L. Madsen (Motion Judge)

Between:
Dave Marcotte (Appellant / Moving Party)
and
Christina Marcotte (Respondent / Responding Party)

Appearances:
David A. Balaban, for the moving party, Dave Marcotte
Nafi Yujiao Zhou and Mona Yusi Zhang, for the responding party, Christina Marcotte

Heard: June 26, 2025

Endorsement

Introduction

[1] Mr. Marcotte, the appellant, brings a motion for an extension of time to perfect his appeal of a divorce order made March 17, 2025. He states that, while he doesn’t actually seek to overturn the divorce, the 2023 date of separation shown in the Application filed by Ms. Marcotte, the respondent, is incorrect.

The Underlying Proceedings

[2] Ms. Marcotte filed with the Family Responsibility Office (FRO) the parties’ separation agreement, which used that same 2023 date of separation for enforcement. According to Mr. Marcotte, the parties reconciled for a time thereafter, and in his view, support was therefore not payable until their true separation date in 2024.

[3] In addition to bringing a Notice of Appeal before this court, Mr. Marcotte brought a motion in the Superior Court to have the divorce order changed under r. 25(19) of the Family Law Rules, O. Reg. 114/99, to reflect what he asserts is the actual date of separation. That motion is scheduled to be heard on August 28, 2025. Mr. Marcotte asks this court to grant his motion for extension of time to perfect, and then somehow hold his appeal in abeyance until the motion in the Superior Court is determined.

[4] This appeal is fundamentally misconceived.

[5] First, this court has held that allegations of misrepresentation and material omissions are more appropriately determined under r. 25(19) in a request to change or set aside the resulting order: Hilton v. Hilton, 2021 ONCA 29, paras. 8-11; Gray v. Gray, 2017 ONCA 100, para. 33. As noted, Mr. Marcotte commenced a motion in the Superior Court for that very relief, which has been scheduled to be heard next month.

[6] It is inappropriate and an inefficient use of court resources to attempt to run parallel proceedings in this manner. This court in Gray found that r. 25(19) includes the power to set aside. Although in Gray, the panel “delisted” the appeal while the r. 25(19) process proceeded, the materials had clearly already been perfected as the matter was before a panel for a hearing. This matter, by contrast, is at the earliest stages.

[7] Second, ultimately, there are two possible orders on Mr. Marcotte’s motion to set aside in the Superior Court: either the motion will be allowed, Mr. Marcotte will have an opportunity to answer that proceeding, and it will progress in the usual course, rendering this appeal moot; or the motion will be dismissed, and the dismissal order, not the divorce order, will be the order that is properly appealed. In either event, the divorce order sought to be appealed in this proceeding will not be the proper subject of an appeal.

Motion for an Extension of Time

[8] The test for an extension of time, of course, is well known. The overarching principle is that an extension of time should be granted if required by the “justice of the case”: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, para. 15. In applying this principle, the court will consider:

a. whether the appellant formed an intention to appeal within the relevant period;
b. the length of and explanation for delay;
c. the prejudice to the respondent; and
d. the merits of the appeal.

[9] These factors have been relied on to permit the extension of time to perfect an appeal: see e.g., Issasi v. Rosenzweig, 2011 ONCA 112, para. 4. Consideration must be given to all of the factors in deciding whether the overall justice of the case requires that the extension be granted.

[10] The merits of the appeal have been described as “the most important factor” in determining whether the justice of the case requires an extension of time: Robson v. Law Society of Ontario, 2023 ONCA 709, para. 5. When assessing the merits of the appeal, it is not with a view to determining whether the appeal will succeed, but only with a view to determine whether the appeal has so little merit that the court could reasonably deny the important right of appeal: Issasi, para. 10. At the same time, lack of merit, on its own, may provide a sufficient basis on which to deny an extension of time: Reid v. College of Chiropractors, 2016 ONCA 779, para. 15.

Application

[11] The divorce order was granted on March 17, 2025. Mr. Marcotte filed his notice of appeal within the prescribed period, on April 16, 2025. His appeal was required to be perfected by June 27, 2025. It appears that some negotiations between counsel have been ongoing and the delay in perfection is modest. I have little difficulty concluding that Mr. Marcotte is able to satisfy the first three branches of the test.

[12] The motion to extend time falters, however, on the merits. Having brought a motion to set aside or change the divorce order under r. 25(19), there is no merit to the appeal. Whatever the outcome of that motion, the appeal from the current order will be moot.

[13] The motion for an extension of time to perfect this appeal is dismissed.

Costs

[14] Both parties sought costs of this motion.

[15] Mr. Marcotte’s counsel sought $29,239 on a full indemnity basis, $23,291 on a substantial indemnity basis, or $17,543 on a partial indemnity basis. In total three lawyers appear to have worked on the file, and almost 65 hours were apparently spent. Ms. Marcotte’s counsel did not have a Bill of Costs, given that the motion was brought on short notice (and without consultation about the date). No responding materials were filed. Ms. Marcotte’s counsel estimated “on the fly” that costs would be approximately $20,000.

[16] This was a simple, narrow, procedural motion, based on settled law and few facts. The costs asserted are entirely disproportionate.

[17] Mr. Marcotte shall pay costs to Ms. Marcotte of $2,500, inclusive of HST and disbursements, within 15 days.

“L. Madsen J.A.”