2022 QCCA 1631, 2022 QCCA 1631

Droit de la famille — 222100 2022 QCCA 1631 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029610-219 ( 500-12-305147-104 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). DATE: December 2, 2022 CORAM: THE HONOURABLE SIMON RUEL, J.A. BENOÎT MOORE, J.A. PETER KALICHMAN, J.A.

APPELLANT COUNSEL F. M. Mtre CATHERINE BOUTIN ( Aide juridique de Montréal ) RESPONDENT COUNSEL I. S. Mtre ANGELO CAPUTO ( Caputo & associé

s) On appeal from a judgment rendered on June 21, 2021 by the Honourable Marie Gaudreau of the Superior Court , District of Montreal . NATURE OF THE APPEAL: Family Matters - Annulment of child support Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 8:45 Continuation of the hearing held on December 1, 2022. The parties were excused from appearing in Court. BY THE COURT : judgment – see page 3.

Robert Osadchuck, Clerk at the hearing JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). [ 1 ] This is an appeal of a judgment rendered on June 21, 2021 by the Superior Court (the Honourable Marie Gaudreau), granting th e respondent’s application for the modification of corollary measures and annulling both arrears of child support as well as any future payments. *** [ 2 ] The parties were married in Iran in 1996.

They moved to Town A in 2009 with their daughter. However, shortly thereafter, the appellant instituted divorce proceedings and the respondent moved back to Iran. [ 3 ] In 2011, a judgment was rendered by the Superior Court pronouncing the parties’ divorce and ordering the respondent to make child support payments for the benefit of the daughter. [ 4 ] In 2012, the appellant moved to Iran with the daughter.

The respondent claims that he voluntarily made support payments to his daughter since roughly that time. [ 5 ] In 2014, the appellant instituted legal proceedings in Iran to compel the respondent to make child support payments and a judgment was rendered to that effect. The respondent claims that he respected that judgment by making child support payments in Iran until the end of 2019. [ 6 ] In 2015, the respondent became aware that he owed arrears of child support in Canada. In 2019, he travelled to Canada and filed an application seeking to annul child support as of 2012 and for the future.

The thrust of the respondent’s position is that he should not have had to pay child support in Canada while the daughter lived in Iran and received child support payments there. [ 7 ] The appellant, who returned to Canada in 2019 with the daughter, contested the application and denied that the respondent had made support payments in Iran. [ 8 ] The respondent’s application was heard over two days in May 2021. Both parties testified as did the daughter.

The judge granted the application and issued the following orders: [27] ORDERS the annulment of child support payable for the benefit of the child X; [28] ORDERS the annulment of the child support arrears [1] ; [ 9 ] The judgment sets out the reasons why the judge favours the respondent’s version of events to that of the appellant. Essentially, based on the documentary evidence and the appellant’s lack of credibility, the judge was satisfied that the respondent had made support payments in Iran for the benefit of the daughter. *** [ 10 ] The appellant raises two broad grounds of appeal.

First, she argues that the judge erred in annulling support payments for the future even though it was clear that the respondent was not seeking such a conclusion. This ground of appeal is no longer contested.

The respondent concedes that this conclusion was not sought at trial and that, in fact, he had reserved his right to submit this question for adjudication at a later date. [ 11 ] In her second ground of appeal, the appellant maintains that the judge’s reasons for annulling the arrears of child support are insufficient and that she committed numerous palpable and overriding errors of fact, notably in her appreciation of the evidence regarding: who had access to the accounts into which funds were deposited; appellant’s bank accounts in Iran; and the access the appellant’s brother had to the bank accounts at issue.

Her arguments cover three separate periods, namely: (

i) October 12, 2012, to June 2014; (ii) June, 2014 to July 23, 2019; and (iii) after July 23, 2019. [ 12 ] With respect to the third period, appellant argues that since she and the daughter moved back to Canada in July 2019, support payments should have been made here and not in Iran and, as a result, arrears after that date should not have been annulled. The Court agrees and notes that this is consistent with the respondent’s representations before the judge.

[ 13 ] The appellant’s arguments regarding the other two periods must fail. [ 14 ] The judge’s reasons are perfectly clear. In concluding that between 2012 and 2019, the respondent deposited payments into two separate bank accounts in Iran for the benefit of the daughter, the judge relied on bank payment slips evidencing deposits, admissions by the appellant that 52 deposits had in fact been made by the respondent to the daughter’s account and certificates issued both by an Iranian bank and by an Iranian court, the latter of which was reproduced in the judgment itself.

Furthermore, the judge found the appellant’s testimony to be “vague, defensive and vindictive” and she gave numerous examples of false statements that she had made. She clearly did not accept her testimony that the deposited funds never reached her or the daughter.

This assessment contrasts sharply with the judge’s appreciation of the respondent’s testimony, which she found to be “transparent and sincere”. [ 15 ] The appellant clearly disagrees with the judge’s conclusions - particularly as they pertain to the period between 2012 and 2014 - but has failed to demonstrate that her reasons are insufficient or that there is any palpable and overriding error that would justify intervention. FOR THESE REASONS, THE COURT: [ 16 ] ALLOWS the appeal in part for the purposes of: (

i) striking the conclusion at paragraph 27 of the judgment rendered on June 21, 2021 by the Honourable Marie Gaudreau, J.S.C.; and (ii) replacing the conclusion at paragraph 28 with the following: [28] ORDERS the annulment of the child support arrears up until August 1, 2019; [ 17 ] WITHOUT legal costs, given the nature of the proceedings. SIMON RUEL, J.A. BENOÎT MOORE, J.A. PETER KALICHMAN, J.A.