2016 QCCA 2042, 2016 QCCA 2042

Droit de la famille — 163075 2016 QCCA 2042 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-025999-160 (500-12-320510-138) PROCÈS-VERBAL D'AUDIENCE DATE : Le 8 décembre 2016 CORAM : LES HONORABLES NICOLE DUVAL HESLER, J.C.Q. PAUL VÉZINA, J.C.A. PATRICK HEALY, J.C.A. APPELANT AVOCAT M... H... m e ANTONIO VESCIO (TASSÉ & VESCIO, LLP) INTIMÉE AVOCAT O... F... Me DAVID KELLERMAN (Kellerman Avocats) En appel d'un jugement rendu le 7 mars 2016, rectifié le 26 avril 2016 par l'honorable Marie- Claude Armstrong de la Cour supérieure, district de Montréal. NATURE DE L'APPEL : Divorce - Mesures accessoires.

Greffier d’audience : Mihary Andrianaivo Salle : Pierre-Basile-Mignault AUDITION 9 h 32 Début de l’audience. Argumentation de Me Vescio. 10 h 05 Suspension de l’audience. 10 h 09 Reprise de l’audience. PAR LA COUR : Arrêt unanime prononcé par l’honorable Nicole Duval Hesler, J.C.Q. – voir page 3. 10 h 09 Fin de l’audience. Mihary Andrianaivo Greffier d’audience PAR LA COUR ARRÊT [ 1 ] Pour les motifs qui seront déposés ultérieurement; LA COUR : [ 2 ] REJETTE l’appel sans frais de justice, vu la nature du litige. NICOLE DUVAL HESLER, J.C.Q. PAUL VÉZINA, J.C.A. PATRICK HEALY, J.C.A.

Droit de la famille — 163075 2016 QCCA 2042 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025999-160 (500-12-320510-138) DATE: December 13, 2016 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. PAUL VÉZINA, J.A. PATRICK HEALY, J.A. M... H... APPELLANT – Defendant v. O... F...

RESPONDENT – Plaintiff REASONS FOR THE JUDGMENT RENDERED AT THE HEARING ON DECEMBER 8, 2016 [1] The appellant asks the Court to set aside a judgment of the Superior Court, District of Montreal (the Honorable Madam Justice Marie-Claude Armstrong), rendered on March 7th, 2016, which pronounces divorce between the parties, grants custody of the children to the respondent, defines visitation rights, orders the appellant to pay child support and adjudicates other accessory measures. [2] In her reasons the trial judge sets forth a detailed account of the facts which, in the main, are not in dispute.

Briefly, the parties met in 2004 while working for the [Police Services A] and started living as common law partners in the fall of 2007 and were married under the regime of partnership of acquests on 20 June 2009. [ 3 ] They had their first child, X, in […] 2008 and their second, Y, in […] 2013.

The respondent also had custody of a daughter, Z, born in 2006 from a previous relationship. [ 4 ] The parties separated on 24 November 2013 and the respondent filed for divorce on 6 December 2013. [ 5 ] The appellant raises several grounds of appeal: (1) the judge erred in granting custody of X and Y to the respondent; (2) the judge erred in attributing retroactively, for the purpose of child support, an annual income to the appellant; (3) the judge erred in refusing to grant the appellant visitation rights with Z; (4) the judge erred by unequally separating the family patrimony; (5) the judge erred in refusing to grant $ 4,790.00 in damages for the loss of the appellant’s clothes and personal effects; and (6) the trial judge erred in refusing to grant spousal support for the benefit of the appellant. [ 6 ] No error of law is alleged and the appeal rests entirely on the submission that the judge misapprehended the whole of the evidence.

Clearly the appellant seeks to retry the case on appeal. In these circumstances it is useful to recall the strict standard for appellate review. Justice Bich summarized the standard in Droit de la famille – 123636: [2] In family cases, trial judges' decisions are to be given considerable deference. As stated by Gonthier, J. for the Supreme Court of Canada in M. (M.E.) v. L. (P.): 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.

[3] The same rule applies to matters of child or spousal support (for instance, see: Hickey v. Hickey), custody and rights of access (for instance, see: Van de Perre v. Edwards), compensatory allowance (for instance, see: P. (S.) v.

R. (M.)), or partition of the family patrimony or matrimonial regime, all of which are at stake here. [4] The standard of appellate review is thus stringent and a court of appeal will not reverse or modify a judgment unless it is vitiated by an error of law which, by its nature, affected the issue of the dispute or by a palpable and overriding error of fact (i.e. a substantial and manifest error in the evaluation of the evidence, including the credibility of the witnesses).

The appellant bears the burden of demonstrating the existence of such errors and cannot simply ask the Court to reassess the evidence and substitute its own opinion for that of the trial judge. [ 7 ] The judgement of Justice Armstrong is meticulous and her conclusions are well founded in the evidence. The appellant failed to demonstrate any error. In light of the standard of review, nothing warrants the intervention of this Court. FOR THESE REASONS, THE COURT: [ 8 ] DISMISSES the appeal. [ 9 ] THE WHOLE without costs. NICOLE DUVAL HESLER, C.J.Q. PAUL VÉZINA, J.A. PATRICK HEALY, J.A.

Mtre Antonio Vescio TASSÉ & VESCIO For the appellant Mtre David Kellerman KELLERMAN ATTORNEYS For the respondent Date of hearing: December 8, 2016