2015 QCCA 757, 2015 QCCA 757

Droit de la famille — 15968 2015 QCCA 757 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-024840-142 (500-12-318054-131) PROCÈS-VERBAL D'AUDIENCE DATE : Le 30 AVRIL 2015 CORAM : LES HONORABLES FRANÇOIS PELLETIER , J.C.A. NICHOLAS KASIRER , J.C.A. MARTIN VAUCLAIR , J.C.A. APPELANT A... I... PERSONNELLEMENT INTIMÉE AVOCAT N... L... Me IGOR DOGARU En appel d'un jugement rendu le 22 octobre 2014 par l'honorable Steve J. Reimnitz de la Cour supérieure, district de Montréal NATURE DE L'APPEL : Requête pour permission de présenter une preuve nouvelle indispensable (Article 509 C.p.c.) Divorce – mesures accessoires

Greffière d’audience : Linda Côté Salle : Pierre-Basile-Mignault AUDITION 11 h 25 Début de l'audience. L'appelant s'adresse à la Cour. 11 h 42 Suspension de l'audience. 11 h 47 Reprise 11 h 48 Il ne sera pas nécessaire d'entendre Me Igor Dogaru. Arrêt unanime prononcé par la Cour – voir page 3. 11 h 49 Fin de l'audience. Greffière d’audience PAR LA COUR ARRÊT POUR DES MOTIFS QUI SERONT DÉPOSÉS ULTÉRIEUREMENT, LA COUR : [ 1 ] REJETTE la requête pour preuve nouvelle; [ 2 ] REJETTE l'appel; [ 3 ] LE TOUT sans frais. FRANÇOIS PELLETIER, J.C.A. NICHOLAS KASIRER, J.C.A. MARTIN VAUCLAIR, J.C.A. Droit de la famille — 15968 2015 QCCA 757

COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024840-142 (500-12-318054-131) DATE: LE 1 er MAI 2015 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. A. I., APPELLANT – Defendant v. N. L., RESPONDENT – Plaintiff REASONS FOR THE JUDGMENT RENDERED AT THE HEARING ON APRIL 30, 2015 [1] A. I. has appealed a judgment of the Superior Court, District of Montreal (the Honourable Steve J. Reimnitz), rendered on October 22, 2014, which pronounced a divorce between the parties and, inter alia , ordered the partition of the family patrimony.

The appellant has also presented a motion to adduce indispensible new evidence before the Court pursuant to

article 509 C.C.P. [2] After his lawyer ceased to represent him in the divorce proceedings, the appellant was summoned to appear personally by the respondent but failed to do so. On March 26, 2014, he was declared to be in default. [3] The hearing in first instance proceeded in the appellant’s absence. [ 4 ] At that hearing, the respondent gave evidence on which the judge relied in setting the terms for partition of the family patrimony. No evidence was presented on behalf of the appellant.

He did not take proceedings to have the judgment revoked but instead has sought to remedy it by way of an appeal to this Court, accompanied by the motion for new evidence. *** [ 5 ] In his motion to adduce new evidence, the appellant seeks to introduce into proof on appeal several documents that, he says, would have had an impact on the calculation of the value of property divided by the first judge: a document attesting a change in the municipal evaluation of the residence in Town A owned by the parties in indivision, dated September 15, 2011; an undated document attesting to the value of the dwelling jointly owned by the parties in Town B, with reference to the municipal evaluation in 2014; certain of his pay stubs dated variously between 2008 and 2011; and credit card statements dated 2004 and 2008.

He also seeks to introduce a medical certificate in respect of his work stoppage for three days in February 2014. [ 6 ] The motion does not meet the requirements set forth in

article 509 C.C.P. None of the documents constitutes new evidence and he has not convinced the Court that they were not available at the time of the hearing in first instance. As this Court recently recalled in Droit de la famille – 111934 , “[…] la requête pour présentation d’une preuve nouvelle en vertu de l’article 509 C.p.c . ne peut servir à refaire le procès sur la base de preuves déjà disponibles en première instance mais différentes de celles versées au dossier”. [1] [ 7 ] The motion to adduce new evidence should be dismissed. ***

[ 8 ] In the appeal as inscribed, the Court is invited by the appellant to correct what he describes as errors in the judgment of first instance relating to the calculation of the value of the family patrimony subject to partition. [ 9 ] In support of his arguments, the appellant has included certain documents, bills and financial statements as a

schedule to his exposé of argument. These documents were not part of the evidence before the first judge. As such, they do not form part of the record on appeal as contemplated by

article 507 C.C.P. and cannot serve as the basis for judgment in appeal. [ 10 ] As for the substance of the appeal, the appellant complains that the judge erred because the proper valuation of different items of property he was called upon to partition as part of the family patrimony was not based on fair market value at the time of judgment. Had he been present, the appellant suggests, he would have been able to show that the two principal properties composing the family patrimony were evaluated in a manner that caused him prejudice.

The appellant also argues that the judge erred by not taking into account the total value of one of the residences at the time of the purchase, which he says appears in the evidence that was presented in first instance. [ 11 ] It may or may not be that the judge would have ruled otherwise had the appellant been present at the hearing. Suffice to say that he was in default, and the appellant did not seek to remedy the judgment by way of a motion in revocation. [ 12 ] Instead, he seeks to remedy the judgment by asking for what amounts to a new trial on appeal.

Both institutionally and practically speaking, this is not the proper function of appellate proceedings. Moreover the appellant has not shown that the judge erred in interpreting the evidence that was before him. In sum, his inscription in appeal and oral argument disclose no error of law or palpable and overriding error of fact that would allow this Court to disturb the judgment of the Superior Court.

Accordingly, the appeal should be dismissed. [ 13 ] For these reasons, the Court DISMISSED the appellant’s motion to adduce new evidence and DISMISSED his appeal at the hearing of April 30, 2015, the whole without costs, given the nature of the dispute. FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. A. I. Personally Mtre Igor Dogaru Idlex Legal Services Inc. For the respondent Date of hearing: April 30, 2015