2017 QCCA 1496, 2017 QCCA 1496

Droit de la famille — 172260 2017 QCCA 1496 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026930-172 (500-12-309650-111) MINUTES OF THE HEARING DATE: September 25, 2017 CORAM: THE HONOURABLE LOUIS ROCHETTE , J.A. NICHOLAS KASIRER , J.A. CLAUDE C. GAGNON , J.A. APPELLANT COUNSEL S. S. Mtre DAVID KELLERMAN (Kellerman Avocats) RESPONDENT COUNSEL E. K. Mtre FRANÇOIS BEAUVAIS (François Beauvais Avocat Inc.) On appeal from a judgment rendered on June 21, 2017 by the Honourable Justice David R. Collier of the Superior Court, District of Montreal

DESCRIPTION: Application to dismiss an appeal, to declare the appeal abusive, and subsidiaryapplication for suretyship (Articles 51, 365, 367 and 378 C.C.P.) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 11:23 Commencement of the hearing. Identification of counsel.11:23 Submissions by Mtre Beauvais11:32 Submissions by Mtre Kellerman.12:01 Reply by Mtre Beauvais.12:03 Recess.12:07 Resumption of the hearing.12:07 By the Court: judgment – see page 3.

Robert OsadchuckClerk BY THE COURT JUDGMENT [1] The trial judge found that Ms S.’s job training and Mr K.’s retirement following his accident constituted significant changeswithin the meaning of s. 17 of the Divorce Act and that the motion for variation of spousal support was bought in good faith. The judgefound, after weighing the evidence, including medical evidence, that the respondent’s decision to retire was « not altogether voluntaryand not motivated by a desire to reduce his income and spousal obligation». This distinguishes the case from T.(R.) v.

N.(M.), (QCCS) paras. 28 to 32. [2] These are findings of fact that merit deference on appeal. The judge’s observation that Ms S. had a duty to find employment isconsonant with the judgment of this Court, sitting in appeal of the initial order. [3] The notice of appeal fails to disclose a prima facie argument that the judge erred on a question of principle or committed apalpable and overriding error in his determination of the facts. Given the limited basis for appellate interception in matters relating toalimentary support set forth by the Supreme Court in Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518, the appeal presentsno reasonable prospect for success. We are not, however, of the view that the proposed appeal is abusive. FOR THE FOREGOING REASONS, THE COURT: [4] GRANTS the motion to dismiss the appeal; [5] DISMISSES the appeal; [6] The whole, without legal costs given the nature of the dispute.

LOUIS ROCHETTE, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A.