2016 QCCA 595, 2016 QCCA 595

Droit de la famille — 16791 2016 QCCA 595 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025803-156 (760-12-022634-129) DATE: April 6, 2016 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. JEAN BOUCHARD, J.A. MARK SCHRAGER, J.A. B. M. PETITIONER – Defendant v. N. T.

RESPONDENT - Plaintiff JUDGMENT [ 1 ] Petitioner’s appeal was dismissed in his absence by this Court on February 15, 2016, when Respondent’s motion to dismiss was granted, uncontested. [ 2 ] Petitioner seeks the revocation of that judgment affirming that he was never served with the motion to dismiss his appeal. [ 3 ] Assuming this to be the case, the motion of revocation cannot be granted as the appeal, as originally instituted, had no reasonable chance of success. [ 4 ] The Superior Court judge determined that the total amount of Petitioner’s pension funds forming part of the family patrimony to be divided by the judgment was $87,285.92.

Petitioner maintains in his motion that the correct total is $71,473.04 as “$15,812.88 transferred on April 2, 2001 by Sunlife to Merryl Lynch was in the end worth $1,283.00 on May 1, 2012 at CIBC Wood Gundy.” This assertion is based on documentary evidence which Petitioner asserts was filed before the Superior Court. [ 5 ] These documents existed in May 2012. However, as the judge indicated in paragraph 42 of the judgment, Petitioner indicated on May 7, 2013 in the information form to divide the family patrimony, that the amount was unknown.

If there was any confusion, it appears that Petitioner should bear responsibility. [ 6 ] The mission of the Court of Appeal is to correct errors, if any, committed by the trial judge based on the record in first instance. It is inappropriate to seek to conduct a new trial in the Court of Appeal based on evidence that could have but was not filed at the appropriate time in the proper manner before the Superior Court.

The need for finality in the resolution of disputes demands that it be so. [ 7 ] Moreover, proportionality (art. 18 C.C.P. ) and the interest of justice (art. 9 para. 3 C.C.P. ) dictate that this litigation be ended. [ 8 ] Accordingly, the judgment dismissing the appeal should not be revoked. FOR THE FOREGOING REASONS, THE COURT: [ 9 ] DISMISSES Petitioner’s motion for revocation of judgment, without costs given the nature of the case. YVES-MARIE MORISSETTE, J.A. JEAN BOUCHARD, J.A. MARK SCHRAGER, J.A. B. M.

In person N. T. In person Date of hearing: April 4, 2016