2021 QCCA 838, 2021 QCCA 838

Droit de la famille — 21904 2021 QCCA 838 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029487-212 (500-12-341137-184) DATE: May 17, 2021 BEFORE THE HONOURABLE FRÉDÉRIC BACHAND, J.A. Z. J. APPLICANT – Plaintiff v. A. D. RESPONDENT – Defendant JUDGMENT [ 1 ] The applicant is asking for leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Marie- Anne Paquette) dismissing her application seeking to reopen the trial (article 323 C.C.P. ). [1] * * * [ 2 ] The parties have been involved in divorce proceedings since 2018.

The issues in dispute include support for their 3-year-old child. [ 3 ] After the completion of the trial, the applicant asked the trial judge to reopen the trial so as to allow her to file additional documents — some of which she had recently obtained, others she expected to obtain in the near future — which allegedly show that the respondent has not been forthright with respect to his revenues.

The applicant insisted on the fact that child support is an issue of public order and she asked for an order allowing her “to adduce evidence with respect to the true income of [the respondent].” [2] [ 4 ] The trial judge refused to reopen the trial. In doing so, she dismissed the applicant’s explanation as to why she was unable to obtain the documents at issue sooner. She was also troubled by the applicant’s behaviour in several respects, including the fact that the latter had never informed her that she had brought legal proceedings in Qatar aimed at clarifying the respondent’s financial situation.

The trial judge found that it would be unfair and unnecessary to reopen the trial, and that the priority ought to be the completion of the divorce proceedings, “which ha[d] been delayed long enough, often for reasons attributable to [the applicant] or at her initiative.” [3] * * * [ 5 ] The judgment at issue was rendered in the course of proceedings and it is analogous to a judgment allowing an objection to evidence within the meaning of

article 31 para. 2 C.C.P. [4] [ 6 ] When determining whether leave ought to be granted, the key question is whether the proposed appeal would raise questions worthy of the Court’s attention.

That determination must be made in light of considerations which include the principle of proportionality, the best interests of justice, the nature and importance of the questions at issue, as well as the proposed appeal’s likelihood of success. [5] * * * [ 7 ] The applicant has not convinced me that her application ought to be granted. [ 8 ] While there are situations where the Court will allow an appeal from a judgment dismissing an application to reopen a trial, [6] such situations are exceptional, for several reasons.

One is that trial judges’ discretion to reopen a trial must be exercised “sparingly and with the greatest care.” [7] Another is that, as is well established, the Court cannot simply substitute its own discretion for that of the trial judge. [8] This highly deferential approach is consistent with the general rule according to which, in all matters relating to the administration of evidence in the context of a trial, the Court will only interfere with first-instance judges’ broad discretionary powers in the clearest of cases. [9] [ 9 ] The applicant would thus face a significant burden in order to convince the Court to allow her appeal.

Her chances of success would in all likelihood depend upon a showing that the trial judge’s dismissal of her application amounted to an unreasonable exercise of judicial discretion and that it led to a significant injustice. [ 10 ] In my opinion, the applicant’s chances of success are not strong enough to justify granting leave to appeal.

[ 11 ] In coming to this conclusion, I have remained mindful that child support is a matter of public order and that it is of utmost social importance that children benefit fully from the support to which they are entitled from their parents. However, a key consideration here is that the trial judge’s decision to prioritize the prompt completion of the divorce proceedings will not leave the applicant without remedies.

If the evidence that the applicant has uncovered is as compelling as she claims, she will — in all likelihood — be able to obtain, from the Superior Court, an order modifying the amount of child support so as to reflect the respondent’s true financial situation. [ 12 ] Viewed in this light, the proposed appeal could end up adding needlessly to the costs and length of the divorce proceedings. It could also run afoul the best interest of the parties’ child, which may very well be best served by a prompt resolution of the issue of custody.

These considerations provide further justification for not granting leave to appeal. FOR THESE REASONS, THE UNDERSIGNED: [ 13 ] DISMISSES the application for leave to appeal, without legal costs given the nature of the dispute. FRÉDÉRIC BACHAND, J.A. Mtre Joan Benson For the Applicant Mr. A. D. Unrepresented Date of hearing: May 13, 2021