2019 QCCA 1536, 2019 QCCA 1536

Droit de la famille — 191891 2019 QCCA 1536 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028473-197 ( 500-04-073639-180 ) MINUTES OF THE HEARING DATE: August 20, 2019 THE HONOURABLE MANON SAVARD, J.A. APPLICANT COUNSEL A. S. Mtre Andrew H. Heft ( Heft Droit de la Famille inc ) RESPONDENT COUNSEL n. M. Mtre Leila Sadeg ( Kalman Samuels Avocats ) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on July 9, 2019 by the Honourable Carol Cohen of the Superior Court , District of Montreal . Clerk at the hearing : Stephane Robinson Courtroom: RC-18 HEARING

9:34 Commencement of the hearing. Identification of counsel. The motion is contested. Recess. 11:48 Resumption of the hearing. 11:48 Discussion between the Court and Mtre Heft. 11:48 Submissions by Mtre Heft. 11:55 Intervention by Mtre Sadeg. 11:55 Mtre Sadeg files a copy of an exhibit, as Mtre heft refers to said exhibit. 12:01 Mtre Heft files an exhibit. 12:05 Submissions by Mtre Sadeg. 12:17 Reply by Mtre Heft. 12:20 Exchanges between the Judge and Mtre Heft.

Mtre Heft verbally amends his motion’s conclusion for costs, as he informs the judge that with regards to his Application for leave to appeal , he is not asking the Court for costs at this time, but in the event that leave for appeal should be granted, he would then ask the Court for costs. 12:20 Recess of the hearing. 12:25 Resumption of the hearing. 12:25 BY THE JUDGE : Judgment rendered forthwith by the honourable Manon Savard J.A., for which the reasons will be inserted in the minutes of the hearing – see page 3. 12:26 Conclusion of the hearing.

Stephane Robinson, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal a judgment of the Superior Court dismissing his application for a declinatory exception. [ 2 ] The Applicant filed his application for a declinatory exception in response to the Respondent’s application for separation from bed and board filed on December 21, 2018. The motion judge concluded that at the time the proceedings were instituted, the Respondent had re-established her domicile and residence in Town A, such that the proceedings had been validly instituted here under

section 3146 C.c.Q . She therefore dismissed the Applicant’s motion as being ill-founded in fact and in law. [ 3 ] The Applicant has not convinced me that the interests of justice require that leave to appeal be granted (articles 9, 18 and 31 C.C.P. ). [ 4 ] While the Applicant alleges that the motion judge committed an error of law by dismissing his application, he recognized before me that his motion is based solely on an alleged error of fact ( Droit de la famille – 182354 , 2018 QCCA 1894 , para. 13 ).

He failed, however, to establish, even on a prima facie basis, that the judge committed a palpable and overriding error in her analysis. [ 5 ] The evidence in first instance was contradictory. The judge did not accept the version offered by the Applicant to the effect that the Respondent had come to Town A merely to avoid the jurisdiction of [Country A] Courts. She preferred the Respondent’s testimony to the effect that she had re-established her residence in Town A for valid reasons (other than «forum shopping»), a conclusion that was supported by her review of the evidence.

The judge explained her conclusion in detail. Before me, the Applicant merely pleaded the same arguments that the motion judge had dismissed, but did not identify any element that could eventually justify the intervention of the Court. [ 6 ] In these circumstances, I am of the opinion that the interests of justice do not justify the application being granted. FOR THESES REASONS, THE UNDERSIGNED : [ 7 ] DISMISSES the Applicant’s application for leave to appeal; [ 8 ] WITHOUT legal costs, in accordance with

article 340 C.C.P.

MANON SAVARD, J.A.