2021 QCCA 1580, 2021 QCCA 1580

Droit de la famille — 212022 2021 QCCA 1580 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029665-213 ( 450-04-016363-201 ) MINUTES OF HEARING DATE: October 22, 2021 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A. APPELLANTS COUNSEL E. E. Mtre SABRINA ROCHELEAU ( Le Palier Juridique ) Absent RESPONDENT COUNSEL A. K. Mtre SÉBASTIEN GAGNON ( Gagnon Rodriguez Avocats ) Absent On appeal from a judgment rendered on July 30, 2021 by the Honourable Line Samoisette of the Superior Court , District of Saint-François .

DESCRIPTION: Amended Application to dismiss an appeal (Art. 365 C.C.P .). Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 9:34 Commencement of the hearing. Continuation of the hearing held on October 18, 2021 The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 3. 9:35 Conclusion of the hearing.

Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The Respondent seeks the dismissal of the appeal filed against the judgment rendered on July 30, 2021 by the Superior Court, District of St-François (the Honourable Madam Justice Line Samoisette), [1] on the ground that the appeal has no chance of success. [ 2 ] The judgment under appeal awarded the Respondent custody of the child X, who was two years old at the time, and granted the Appellant access rights.

On appeal, the Appellant seeks a reversal of these conclusions so that shared custody, on the basis of two weeks per parent each month, can be implemented gradually. [ 3 ] After correctly stating the legal rules applicable to such matters, the trial judge explained the reasons that led her to grant custody of the child to the Respondent.

She weighed each of the relevant criteria and was of the view that the child’s stability, the fact that the child had lived with the Respondent since his birth, that the Appellant had never experienced day-to-day life with the child for more than three consecutive days, that the Appellant lived with a roommate and had not proved that he had found a place in daycare (he worked full-time, just as did the Respondent) nor that he could offer the child a stable environment, the whole combined with the fact that he was now living near Toronto, an eight-hour drive from the Respondent’s home, supported this outcome. [ 4 ] In his notice of appeal, the Appellant argues that the judge erred in law by not giving sufficient weight to the fact that he will not be able to adequately pass on his cultural values to the child, by giving too much weight to the distance between the Appellant’s home and that of the Respondent, and by failing to consider the fact that the Respondent allegedly hid her pregnancy from him.

Yet the judgment, including paragraphs [67] to [70], [2] demonstrates that the judge assessed the first two elements and did, indeed, take them into consideration.

As for the Appellant’s third ground of appeal—that the judge failed to consider the fact that the Respondent allegedly hid her pregnancy from him—contrary to the Appellant’s contention, the judge addressed this point in detail in her reasons and dismissed the Appellant’s allegation as unfounded, preferring the Respondent’s testimony. [ 5 ] These grounds of appeal, just like the factual errors alleged in the notice of appeal, are centred on the judge’s assessment of the testimonial and documentary evidence.

It is well established that, in such matters, the trial judge’s findings must be given considerable deference and that only a palpable and overriding error warrants appellate intervention. [3] This level of deference is particularly high in family matters: [4] [ 57] The appeal primarily raises questions of fact. In such cases, there is a strict standard of review. An appellate court will intervene only if the trial judge has made palpable and overriding errors. In other words, these must be obvious errors that are “self-evident” and that one can put one’s finger on.

Moreover, in family matters, appellate courts must generally accord great deference to the judgment at first instance. This deference applies to the analysis of support orders just as it does to orders involving the partition of property. [ 57] L’appel soulève principalement des questions de fait. Or, en pareil cas, la norme d’intervention est élevée. Une Cour d’appel n’interviendra que si des erreurs manifestes et déterminantes ont été commises par le juge de première instance. En d’autres mots, il doit s’agir d’erreurs évidentes qui « sautent aux yeux » et qui peuvent être montrées du doigt.

Qui plus est, en matière familiale, les tribunaux d’appel doivent généralement faire preuve d’un haut degré de déférence à l’égard du jugement de première instance.

Cette retenue s’applique tant à l’analyse des ordonnances alimentaires qu’à celles traitant du partage des biens. [Reference omitted] [ Référence omise ] [ 6 ] The Appellant has not convinced us that his grounds of appeal are liable to result in the reversal of the judgment under appeal nor that they are more than a request for the Court to reassess the facts, which is not the role of the Court. [5] [ 7 ] The appeal, therefore, has no chance of success.

FOR THESE REASONS, THE COURT: [ 8 ] GRANTS the Application to dismiss the appeal, without legal costs; [ 9 ] DISMISSES the appeal, without legal costs given the nature of the case.

GENEVIÈVE MARCOTTE, J.A. GENEVIÈVE COTNAM, J.A. STÉPHANE SANSFAÇON, J.A.