2021 QCCA 622, 2021 QCCA 622

Droit de la famille — 21612 2021 QCCA 622 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029328-218 (550-12-035459-196) DATE: April 16, 2021 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. ROBERT M. MAINVILLE, J.A. STEPHEN W. HAMILTON, J.A. L. S. APPELLANT – Defendant v. E. P. RESPONDENT – Plaintiff JUDGMENT [ 1 ] On January 11, 2021, the Superior Court, district of Gatineau (the Honourable Mr.

Justice Pierre Dallaire), rendered a judgment granting the parties a divorce and ruling on corollary relief (custody of the parties’ minor children, child support, and partition of the family patrimony and the matrimonial regime). [ 2 ] On February 8, 2021, the appellant filed a notice of appeal, identifying 28 errors of law and of fact in said judgment, most of which pertain to the partition of the family patrimony and the matrimonial regime (partnership of acquests).

According to the appellant, the trial judge should have ordered the unequal partition of the family patrimony and the matrimonial regime, considering the financially abusive, dishonest and deceitful conduct of the respondent during the marriage.

She also alleges that the recordings of the trial were falsified, [1] that the trial judge was not impartial [2] and, by his own admission, did not understand what the parties were saying at the hearing, [3] that he penalized her because she was not represented by counsel and that he refused to hear her properly, cutting her testimony short and preventing her from fully presenting her cross-application for divorce. [4] In paragraph 11 of her notice of appeal, the appellant indicates that she will raise additional grounds of appeal in her brief (which is irregular). [ 3 ] On February 22, 2021, the respondent, pursuant to art. 365 C.C.P. , filed an application to dismiss the appeal.

In his view, this appeal has no reasonable chance of success and is abusive. [ 4 ] On February 24, 2021, the appellant filed an application for permission to present the following indispensable new evidence (art. 380 C.C.P. ): (

I) the altered parts of the trial audio recordings, (II) a picture of the envelope with a USB drive addressed by the respondent’s lawyer directly to the trial judge without any prior notification of the appellant and with a note requesting the assistant of the Coordinating judge to personally confirm its receipt by email, (III) - the description of what was on the USB that the respondent’s lawyer did not want the appellant to know, but what the trial judge must know, (IV) the letter from the school administration related to the investigation of D…’ bullying behaviour and bringing cannabis, knives, and e-cigars to the Lycee, that demonstrates harmful impact of the respondent’s sole custody of our 16-years-old son, (

V) the copies of the appellant’s royalty cheques recently provided by the publishing companies, which respondent cashed without her consent, while misrepresenting/lying her that he deposited them into the parties’ joint USD account, (VI) M…’s recording of what he told the attorney for children on October 5, 2020 (both the actual recording via email and its transcripts), (VII) the proofs of how unethically the respondent and his lawyer involved the children in the discussion of the divorce related matters and how they “motivated” A… and D… to bully M… to say 50 - 50 to the attorney for children in favour of shared custody, and (VIII) the proofs of the appellant’s help for A… according to the methods and conditions indicated by the Court. (verbatim, except for the names of the children) [ 5 ] It appears from this application that apart from seeking to substantiate her claims of falsification of the trial recordings and potential collusion between the judge and the respondent’s lawyer, the appellant is trying to strengthen her case against the respondent with regards to the unequal partition of the family patrimony and the matrimonial regime.

It also appears that she intends to appeal the judgment on the matter of the shared custody of the parties’ younger son, as ordered by the trial judge, as well as on the amount owed to the respondent for the interim support of their eldest son. These grounds of appeal are not mentioned in her notice of appeal. Application for permission to present indispensable new evidence (art. 380 c.c.p. )

[ 6 ] The application does not fulfil the exacting requirements of art. 380 C.C.P. , as interpreted by a long line of cases. [5] “Indispensable new evidence,” within the meaning of this provision, is indeed not simply a means to remedy weaknesses in the evidence that should have been led at trial. New evidence is that which was not adduced at trial because it was not available at that time and could not have been discovered despite the due diligence of the party now asking to file it in the appeal record.

New evidence is not that which the party decided not to submit at trial or which was omitted by mistake or otherwise. Indispensable evidence is that which could have led to a different judgment in first instance and could thus have a substantial impact on the outcome of the appeal.

For that reason, needless to say, “new indispensable evidence” must be identified clearly so that our Court can weigh its potential significance and decisiveness. [ 7 ] In the present case, the evidence that the appellant seeks to introduce is neither new nor indispensable, for the most part, and is also largely undefined. [ 8 ] The issue of the royalty cheques could and should indeed have been brought before the trial judge and the evidence that the appellant would like to submit in order to support her allegations in that respect is not new since it could have easily been obtained before trial.

The same can be said of the issues of the pressure allegedly exerted on the youngest child by his brothers and father, or the unethical conduct of the latter and his lawyer in that respect, all the more so since the “new” evidence that would support these allegations is not described in the appellant’s application, which is a fatal flaw. The undefined evidence relating to the appellant’s claims about the interim support for the eldest child, a matter that was duly canvassed at trial, is not new either, as the appellant could have established then what she is trying to establish now.

The recording and transcript of the conversation between the youngest child and his lawyer, a topic that was also discussed before the trial judge, [6] are not new evidence. The letter from the middle child’s school, although new, is clearly not decisive, and therefore not indispensable. [ 9 ] Finally, the application cannot be granted with regard to the falsification of the trial recordings or the collusion between the judge and the respondent’s lawyer or their unethical conduct.

The appellant’s allegations in that respect are without any apparent foundation and arise from misinformed inferences that are frivolous on their face and could obviously not affect the outcome of the appeal.

Application to dismiss an appeal (art. 365 C.C.P. ) [ 10 ] Considering the applicable – and very severe – standard of appellate review in matters of child custody and child support, [7] partition of the family patrimony or matrimonial regime, [8] and other corollary measures, the appeal has no reasonable chance of success and shall be dismissed. [ 11 ] As indicated above, the allegation regarding the falsification of the trial recordings is ill-founded on its face.

So are the allegations that the judge penalized the appellant because she was not represented by counsel or prevented her from fully defending herself at trial. [ 12 ] The allegations of bias on the part of the judge are also without merit in light of the principles set out by the Supreme Court of Canada in Wewaykum Indian Band v.

Canada . [9] To borrow from Droit de la famille — 182090 , [10] they are “certainly a far cry from what is required to overturn the presumption of impartiality that benefits judges in Canada.” [ 13 ] The other grounds of appeal do not point to any reviewable error in the judgment of the Superior Court. The errors of law mentioned in the notice of appeal unfortunately derive from a manifest ignorance or misconstruction of the rules governing the family patrimony, the partnership of acquests and their partition.

As for the rest, the appellant, who disagrees with the Superior Court’s judgment, invites our Court to reassess all of the evidence and arguments presented at trial and to substitute her views for those of the trial judge. That is not the role of a court of appeal. [11] * * [ 14 ] Given that the appeal is being dismissed at this stage, it will not be declared abusive.

FOR THE AFOREMENTIONED REASONS, THE COURT: [ 15 ] DISMISSES the appellant’s application for permission to present indispensable new evidence; [ 16 ] GRANTS the respondent’s application to dismiss an appeal; [ 17 ] DISMISSES the appeal; [ 18 ] The whole without legal costs, pursuant to art. 340, para. 2 C.C.P. MARIE-FRANCE BICH, J.A. ROBERT M. MAINVILLE, J.A. STEPHEN W. HAMILTON, J.A. L. S. Appellant

Unrepresented E. P. Respondent Unrepresented Date of hearing: April 12, 2021