2023 QCCA 493, 2023 QCCA 493

Droit de la famille — 23497 2023 QCCA 493 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030372-239 ( 500-12-342899-196 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 C.C.P .). DATE: April 13, 2023 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPLICANT M. Z. PRESENT AND Unrepresented RESPONDENT Z. N.

ABSENT AND UNREPRESENTED DESCRIPTION: Application to extend the expiration of the time fixed for instituting an appeal ( Section 21(4) Divorce Act ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING

9:22 Commencement of the hearing. Continuation of the hearing held on April 6, 2023. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 C.C.P .). [ 1 ] The applicant seeks permission to extend the time limit to appeal from the divorce judgment pronounced on December 19, 2022, by the Superior Court, district of Montreal (the Honourable Jean-Sébastien Vaillancourt).

Such permission is sought before me pursuant to section 21(4) of the Divorce Act . It will only be granted where the criteria of

article 363 C.p.c. are met: the applicant must show that (1) not more than six months have elapsed since the judgment was rendered, (2) it was impossible in fact for him to act earlier, and (3) his appeal appears to have a reasonable chance of success. [ 2 ] The applicant filed his notice of appeal 31 days after the judgment was rendered. He is well within the six-month delay and thereby meets the first condition. Considering the circumstances alleged in his application, I conclude that he also meets the second condition insofar as he has demonstrated an impossibility to act.

However, he fails to meet the third condition given that none of the grounds raised in his notice to appeal have a reasonable chance of success. [ 3 ] First, there is no error of law in the judge’s dismissal of his request to declare that the gift or dowry stipulated in the marriage contract has lapsed. The judge explained that the Superior Court has no jurisdiction over the gift or dowry which was the object of an Iranian judgment following proceedings instituted by the respondent in Iran.

His conclusion is flawless. [ 4 ] Moreover, regarding the partition of the family patrimony, the judge concluded that the applicant had failed to adduce evidence to support the value of the movable property or the existence of a family debt.

The argument raised to contest this finding is a mere attempt to retry the case, which is not the role of this Court. [ 5 ] As far as his claim for damages is concerned, again the applicant seeks to retry the case, this time by alleging a different and new basis for his claim – the respondent’s refusal to consent to a religious divorce or to renounce to the Iranian judgment obtained against him. However, this was not the basis of the claim that was decided in Superior Court, as appears from the allegations of the applicant’s cross-application filed with his notice of appeal.

The Superior Court judge’s reasons for denying the claim that was before him at the time are well explained, and the applicant has shown no palpable or overriding error with respect to that conclusion. [ 6 ] Furthermore, as regards the arguments raised in relation to the parties’ religious divorce in Iran and the travel ban that may exist against him in Iran as a consequence of the Iranian judgment obtained by the respondent, those arguments are not within the jurisdiction of this Court and could not be resolved by way of the proposed appeal. [ 7 ] In my opinion, the appeal is devoid of any merit.

This justifies the dismissal of the application. FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the application to extend the expiration of the time fixed for instituting an appeal; [ 9 ] WITHOUT COSTS , given the nature of the proceedings. GENEVIÈVE MARCOTTE, J.A.