2014 QCCA 254, 2014 QCCA 254

Droit de la famille — 14241 2014 QCCA 254 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023996-135 ( 550-12-028538-105 ) MINUTES OF THE HEARING DATE: February 10, 2014 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. MARTIN VAUCLAIR, J.A. PETITIONER K. N. In person RESPONDENT COUNSEL Y. D. Mtre Anne France Gagnon Gagnon Lavallée avocates

Motion for leave to appeal after the expiry of term Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 10h32 : Commencement of the hearing 10h55 : Submissions by Mtre Anne-F. Gagnon 11h04 : Reply of Mrs N. 11h07 : Recess 11h28 : Resumption 11h28 : Representations by Mrs N. For reasons that will be consigned on the minutes of the hearing, the Court : DISMISSES the motion for leave to appeal; Without costs given the familial nature of the dispute. 11h30 : Conclusion of the hearing. Linda Côté Clerk BY THE COURT JUDGMENT [ 1 ] K. N., who is representing herself, asks for leave to appeal after the expiry of the time limits imposed by law, citing

article 523 C.C.P. in support of her motion. The motion was filed on November 11, 2013. [ 2 ] The judgment of the Superior Court was rendered by Isabelle, J. on October 7, 2013. The judge granted an application for divorce of the parties and issued various orders concerning the division of the family patrimony and the partnership of acquests. The judge rejected Ms N.’s demand for a compensatory allowance. It is this latter conclusion that is the main subject-matter for the motion for leave to appeal, although Ms N. alleges a wide range of errors made in respect of the determination of the spouses’ finances.

[ 3 ] Pursuant to subsection 21(4) of the Divorce Act , [1] applicable here, the Court may, on special grounds, extend the thirty-day time limit imposed by law. In order for the Court to grant leave, the petitioner must provide acceptable reasons explaining her tardiness in bringing the appeal and also show that her motion discloses a reasonable prospect of success. *** [ 4 ] As to the reasons for tardiness, Ms.

N. asserts that she learned of the judgment on October 10 and, during the 30 days that followed, she was “unable [...] to gain access to an appeals lawyer to discuss or to provide a mandate to appeal the judgment, despite efforts of the Applicant and the Applicant’s lawyer in first instance (who does not handle appeals) to make such arrangements”.

She also notes that delays in obtaining documents from the registry of the Superior Court caused her delay. [ 5 ] The motion for leave is not accompanied by an affidavit attesting the truth of these assertions. [ 6 ] It is not necessary to decide whether the lateness is excusable in the circumstances.

Even if the Court were to accept the explanation for the late filing of the appeal, the motion for leave should be dismissed as disclosing no prospect chance for success. *** [ 7 ] The motion for leave raises at least 13 errors of fact that the judge allegedly committed in his evaluation of the evidence relating principally to the demand for a compensatory allowance. [ 8 ] In first instance, Ms N. claimed a compensatory allowance of $200,000 which reflected, she said, her impoverishment and her ex-husband’s enrichment resulting from Ms.

N.’s contribution to the expenses of the marriage (“son apport aux contributions aux charges du mariage”, para [76] of the judge’s reasons). In essence she claimed that companies controlled by the respondent had retained earnings during the marriage and that, at the time of divorce, these earnings had not been distributed to shareholders, including the respondent. The earnings, she says, were obtained by reason of the long hours the respondent was able to devote to his work which, in turn, reflected the fact that she undertook a disproportionate share of household duties.

She also incurred debts that the judge ignored which make her impoverishment plain. She says the judge failed to account for certain payments received by the husband, or of income-splitting arrangements that operated to his advantage. [ 9 ] In a 137 paragraph judgment written after a three-day trial, the judge carefully reviewed the evidence and concluded that the contribution that Ms N. made to running the household was not so exceptional as to justify the granting of a compensatory allowance based on applicable legal principles (paras [108] and [109]).

The causal link between the respondent’s enrichment and Ms N.’s contributions to the marriage was not established to the judge’s satisfaction (para. [117]). Moreover, he was not convinced that Ms N. had suffered an impoverishment during the marriage as required by law (para [118]). [ 10 ] In support of her motion for leave, Ms N. argues that these highly factual findings by the trial judge were wrong.

She points to no error of principle or error of law, but simply claims that the judge was mistaken in his evaluation of the facts in this 15 month marriage. [ 11 ] In the circumstances, the measure of the respective contribution of the spouses to the expenses of the marriage, the existence of an impoverishment for the petitioner and the causal link between her contribution to the marriage and the enrichment of the respondent are rest on findings of fact by the trial judge in respect of which this Court owes considerable deference.

As Gonthier, J. observed in comparable circumstances for the Supreme Court of Canada in M. (M.E.) v. L. (P.) [2] : Before going on to analyze the circumstances of this case, I feel it is worth emphasizing the deference that must be accorded to the discretionary power of the trial judge under art. 559 C.C.Q. Clearly this principle is general in application, but it assumes even greater importance in family law for two reasons. The situation arising where a family is in the process of dissolving is unique.

First, financial matters must be dealt with quickly so as to avoid exhausting the parties' resources and allow them to start their lives anew. Second, this is an area where the parties have generally not kept documents that would provide evidence of each one's contribution. Oral evidence is thus of first importance, and assessing the credibility of witnesses is very much the function of the trial judge.

In a proceeding involving a compensatory allowance, a trial judge's error must be obvious for an appellate court to intervene. [ 12 ] At the hearing, Ms N. pointed to numerous paragraphs of the judgment where, she said, the judge made wrong evaluations of the parties’ respective incomes and expenses. She makes plain that she seeks a complete review of this aspect of the trial which is not the proper role of an appellate court. Moreover, she did not point out how any of these errors, if they were indeed mistakes, would have had an overriding impact on the judge’s conclusions.

In particular, her motion does not speak to the judge’s finding that the increase in value of her ex-husband’s assets was due to the work of one of his business partners, not his spouse’s exceptional efforts at home (para. [114] to [118]). [ 13 ] Finally, it appeared that the examples of factual errors she alleged, even if established, would have a relatively small impact on the property division between the parties. The cost and time involved in an appeal appears to be disproportionate to the ultimate outcome and, given the rule set forth in

article 4.2 C.C.P ., this further discourages granting the motion for leave. [ 14 ] In the circumstances, we are unanimously of the view that the appeal sought has no reasonable prospect for success. [ 15 ] FOR THESE REASONS, THE COURT: [ 16 ] DISMISSES the motion for leave to appeal; [ 17 ] WITHOUT COSTS given the familial nature of the dispute.

NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. MARTIN VAUCLAIR, J.A.