2021 QCCA 1118, 2021 QCCA 1118

Droit de la famille — 211288 2021 QCCA 1118 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029457-215 ( 500-12-338148-186 ) MINUTES OF HEARING DATE: July 8, 2021 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A. APPELLANT COUNSEL K. O. Mtre PAMELA O'REILLY RESPONDENT COUNSEL KA. M. Mtre DANIEL SIrhAN On appeal from a judgment rendered on March 15, 2021 by the Honourable Guylaine Duplessis of the Superior Court , District of Montreal .

DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on July 5, 2021. The parties were excused from appearing in Court. Judgment – see page 3. Robert Osadchuck, Clerk at the hearing

JUDGMENT [ 1 ] The Appellant has appealed from a judgment (the Honourable Guylaine Duplessis, J.S.C.) which granted the Respondent’s application for a divorce and accessory measures. The Respondent seeks to dismiss the appeal pursuant to

Article 365 of the Code of Civil Procedure , on the basis that it has no reasonable chance of success. In addition, she asks that the appeal be declared abusive and that the Appellant be ordered to pay damages of $15,000.

As an alternative to dismissal, the Respondent asks that the Appellant be ordered to post security for costs in appeal of $35,000. [ 2 ] For the reasons that follow, the Application to Dismiss an Appeal will be granted in part. [ 3 ] In regards to each of the issues he raises in his appeal, the Appellant submits that the trial judge committed numerous errors of fact and numerous errors of law. [ 4 ] In order to succeed on an appeal based on errors of fact, an appellant must establish that the errors are palpable and overriding.

The Appellant fails to demonstrate that any such errors were committed by the first instance judge here. Instead, the Appellant invites the Court to re-examine the evidence in regards to issues such as the needs of the daughter, the assets of the parties and his conduct throughout the litigation, and to arrive at a different conclusion than that of the trial judge. As has been written many times, this is not the role of a court of appeal. [1] [ 5 ] Furthermore, several of the grounds raised in the Notice of Appeal are mischaracterized as errors of law.

For example, contrary to what Appellant alleges, the trial judge’s conclusion in regards to child support was not based on a finding that the child’s needs were the responsibility of the state – the judgment actually contains no such finding – but rather her appreciation of the facts. The same can be said for the issue of spousal support. The trial judge did not fail to apply the appropriate criteria, as Appellant asserts.

She determined that the request amounted to a retroactive request for child support that had not been properly pleaded and was not, in any event, supported by the facts. [2] [ 6 ] As far as the remaining grounds of appeal are concerned, merely stating that something is an error of law does not make it one and the Appellant has failed to demonstrate that the judgment contains such an error. [ 7 ] The appeal has no reasonable chance of success and must therefore be dismissed. That said, the Respondent has failed to convince us that the appeal is abusive.

FOR THESE REASONS, THE COURT : [ 8 ] GRANTS in part the Application to Dismiss an Appeal; [ 9 ] DISMISSES the appeal; [ 10 ] WITHOUT JUDICIAL COSTS , given the nature of the file. MANON SAVARD, C.J.Q. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A.