2022 QCCA 177, 2022 QCCA 177

Droit de la famille — 22166 2022 QCCA 177 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029812-211 ( 500-12-341869-190 ) MINUTES OF HEARING DATE: January 31, 2022 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A. APPELLANT C. CU. ABSENT AND Unrepresented RESPONDENT T. C. PRESENT AND Unrepresented (BY VIDEOCONFERENCE) On appeal from a judgment rendered on November 11, 2021 by the Honourable Paul Mayer 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 2:28 Commencement of the hearing. Mrs Cu. is absent. 2:29 Submissions by Mr. C. 2:43 Recess of the hearing. 2:49 Resumption of the hearing. 2:49 By the Court: judgment – see page 3.

Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] The procedural history of this matter is long and has been the subject of numerous decisions of the Superior Court. Suffice to say that this matter began when the Appellant decided in 2018 to remain in Honduras with the parties’ two children, where they have remained ever since. The Respondent’s efforts to have the children returned to Canada have thus far been unsuccessful. [ 2 ] The actual proceedings before the Court are related to a judgment rendered on November 11, 2021.

On such date, after a three day hearing, the Superior Court (the Honourable Paul Mayer) dismissed the Appellant’s application in revocation of the judgment of divorce pronounced on January 20, 2020. In addition to dismissing the application, the judge declared that the Appellant’s conduct was abusive.

He noted that the Appellant’s behavior “ dénote un détournement des fins de la justice, particulièrement des objectifs de la Convention de la Haye ” and agreed with a previous statement made in this file by another judge that “[the Appellant]’s beliefs that she is beyond the reach of our Law is short sighted”. [ 3 ] The Appellant filed a notice of appeal within thirty days of the judgment. She alleges several errors of law and fact which are convoluted and overlapping.

Essentially though, she repeats the same arguments she made before Justice Mayer, which are that service of the divorce proceeding instituted by the Respondent was not properly carried out in law or in fact. [ 4 ] The Respondent seeks dismissal of the appeal on the basis that the Appellant failed to obtain leave despite the fact that under

article 30 paragraph 2(3) C.C.P. , a judgment dismissing an application because of its abusive nature requires leave. The Respondent adds that in any event, the appeal has no reasonable chance of success such that leave should not be granted. His notice of presentation provides for his motion to be heard by the Court on January 31, 2022. [ 5 ] On January 24, 2022, the Appellant requested for the postponement of the hearing to “late july, 2022, based on the universal principles of FORCE MAJEURE AND FAIR TRIAL”.

Appellant’s motion for postponement was dismissed by the Court, in view of the circumstances of this file and her systematic refusal to answer to Quebec proceedings and to comply with the orders of the Superior Court. Notwithstanding the Court’s decision, the Appellant decided not to appear at the hearing. The Court thus proceeded in her absence. [ 6 ] On the merits of the Respondent’s motion, the Court is of the view that the Appellant required leave to appeal pursuant to

article 30 paragraph 2(3) C.C.P. The judge held that the Appellant’s application in revocation of the judgment of divorce was unfounded, that it constituted an improper use of procedure and that her conduct was abusive. The Court has confirmed that leave to appeal is required pursuant to

article 30 paragraph 2(3) C.C.P. in such circumstances: 2741-8854 Québec inc. c. Restaurants King Ouest inc , 2018 QCCA 1807 , paras 13 and ff.; Beauregard c. Boulanger (Succession de Boulanger) , 2021 QCCA 728 . [ 7 ] Having failed to seek leave to appeal, the Appellant’s appeal is improperly initiated and must be dismissed accordingly. In any event, leave to appeal would not have been granted as there is no apparent weakness in the judgment. [ 8 ] Legal costs will be awarded in favour of the Respondent in view of the Appellant’s behavior (article 340, paragraph 2 C.C.P. ).

FOR THESE REASONS, THE COURT : [ 9 ] GRANTS the Motion to dismiss the appeal; [ 10 ] DISMISSES the appeal; [ 11 ] With legal costs. MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A.