2014 QCCA 2222, 2014 QCCA 2222

Droit de la famille — 143074 2014 QCCA 2222 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024842-148 (505-12-031461-075) MINUTES OF THE HEARING DATE: December 1, 2014 CORAM: THE HONOURABLE nicholas kasirer, J.A. jean-françois émond, J.A. mark schrager, J.A. PETITIONER COUNSEL I. b. Mtre ANTONELLA PETROLITO RESPONDENT COUNSEL S. bE. Mtre ROGER BOULAY ( Béliveau Boulay ) DESCRIPTION : Motion for permission to appeal from a judgment rendered on October 21, 2014 by the Honourable Mr. Justice Christian J.

Brossard of the Superior Court, District of Longueuil, and for authorization to adduce new evidence. (Art. 29, 494, 511, and 509 C.C.P.) Verbal motion for special leave to appeal (Art. 523 C.C.P.)

Clerk: Nadia Samy Courtroom: Pierre-Basile-Mignault HEARING 14:47 Commencement of the hearing.14:48 Submissions by Mtre Petrolito.14:49 Mtre Petrolito submits a verbal motion for special leave to appeal under

article 523C.C.P.15:13 Reply by Mtre Boulay.15:17 Recess.15:34 Resumption. Judgment – see page 3.15:35 Conclusion of the hearing. Clerk BY THE COURT JUDGMENT [1] I. B. has filed a motion for leave to appeal from a judgment of the Superior Court, District of Montreal (the HonourableChristian Brossard), rendered October 21, 2014. [2] Divorce was pronounced between the parties in 2009 by a judgment that confirmed an agreement on accessory measuressigned following a judicially-managed settlement conference.

In 2013, the petitioner took action before the Superior Court to have the2009 agreement annulled because, she contends, she was the victim of fraud and signed the agreement by mistake, notwithstanding thefact that she was represented by counsel at the time. She therefore claims a share of the assets to which she had renounced in 2009. [3] In the judgment which petitioner now seeks to appeal, the judge of first instance granted the ex-husband S. Ba.’s motion todismiss the petitioner’s action filed pursuant to article 165(4) C.C.P. The judge also found that her action constituted an abuse ofproceedings under

article 54.1 C.C.P. [4] In addition to asking for leave to appeal, the petitioner has asked the Court for permission to adduce new evidence. *** [5] As a preliminary matter, the Court observes that the judgment of the Superior Court that granted the motion to dismiss underarticle 165(4) C.C.P. is a final judgment that is subject to appeal of right, rather than by motion for leave pursuant to articles 29 and 511C.C.P. (It may be noted that the reasons for judgment in respect of abuse of proceedings, as the judge himself observed at para. [24],were not necessary to the conclusion to dismiss the action and, accordingly, the requirement of leave in

article 26, para. 2

(4.1) C.C.P.does not apply). [6] The petitioner is now outside the 30-day time limit imposed by law to inscribe the matter in appeal and thus requires specialleave to appeal the judgment under

article 523 C.C.P.: Saraffian c. Dichter, (QCCA). [7] At the hearing, counsel for the petitioner presented an oral motion pursuant to

article 523 C.C.P. to this end. We are of the viewthat it is in the interests of justice to abridge the time limits on such a motion.

*** [8] In order to obtain special leave, the petitioner must show that her late filing of the appeal may be excused and that her appealhas a reasonable prospect of success: Dallaire v. RCM Modulaire inc., 2006 QCCA 934 , J.E. 2006-1609 (C.A.). [9] As to whether the petitioner was in situation where it was impossible to act sooner, we note that the she brought her motion forleave within 30 days of judgment. It was as a consequence of an error that she failed to file an inscription in appeal. In the circumstances,the lateness may be excused pursuant to

article 523 C.C.P. [10] Does the proposed appeal have a reasonable chance of success? [11] The judge granted the motion to dismiss her action to annul the 2009 divorce judgment because it was taken outside the 15-daytime limit for bringing a motion to revoke a judgment pursuant to

article 484 C.C.P. As the judge noted, more than four years hadelapsed between the divorce judgment in 2009 and the motion to annul in 2014. [12] The petitioner argued that the undue delay was caused by her health problems. The judge rejected this explanation, noting thatshe had learned of the alleged fraud in 2010 and had failed to act in a timely manner thereafter: see paragraphs [29] to [32]. [13] This is a finding of fact by the judge.

The Court of Appeal would only disturb this finding if the petitioner demonstrates that thejudge committed a palpable and overriding error on this point. [14] In support of her appeal, the petitioner argues that the judge failed to appreciate that she was ill between 2009 and 2013, whichprecluded her from acting within the time limits. In her motion for adducing new evidence, she has presented materials that, she says,prove that, in 2013, she was unable to locate her ex-husband in order to bring suit against him.

She hired a private investigator to trackhim down, but that information only became available in 2014. [15] Even if the motion for new evidence were granted, the petitioner has failed to raise a palpable error in the finding by the judgethat her motion to annul the 2009 judgment was inexcusably late.

Assuming that she was ill until January 2013, the fact that she couldnot locate her ex-husband for a period thereafter is not an excuse for not bringing the action, which could have been served on him bymeans of publication in the manner provided for in the Code of Civil Procedure. [16] In other words, even if the Court accepts, for the purposes of discussion, that all of the petitioner’s explanations are true and canbe established in evidence, on their face they fail to show that the judge erred in deciding that her action was late under the rules relatingto revocation of judgments. [17] In the circumstances, the appeal has no reasonable prospect of success.

The motion for new evidence should be dismissed as itis not indispensible in this case. [18] Finally, we note that the judge awarded costs to the respondent in first instance. Given the nature of the proceedings and thewhole of the circumstances, we are of the view that the practice of not awarding costs in family matters on appeal should be observed.

FOR THE AFOREMENTIONED REASONS, THE COURT: [19] ABRIDGES the time limits for bringing the motion for special leave to appeal; [20] DISMISSES the motion for leave to appeal; [21] DISMISSES the motion for special leave to appeal; [22] DECLARES the motion to adduce new evidence to be without further object; [23] Without costs given the nature of the dispute. nicholas kasirer, J.A. jean-françois émond, J.A.

mark schrager, J.A.