2022 QCCA 1709, 2022 QCCA 1709

Droit de la famille — 222191 2022 QCCA 1709 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030249-221 ( 500-12-331754-162 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 C.C.P .). DATE: December 16, 2022 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. GENEVIÈVE COTNAM, J.A. APPELLANT COUNSEL D. P. Mtre Michael N. Bergman ( Bergman & Associé

s) By videoconference RESPONDENT COUNSEL G. G. Mtre Claude Lapointe ( Claude Lapointe Avocate ) Absent On appeal from a judgment rendered on September 16, 2022, by the Honourable Pierre A. Béliveau of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal and subsidiary for provisional execution (articles 365 and 661 C.C.P .). Application for leave to appeal de bene esse (articles 30 (2) and 357 C.C.P .). Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault

HEARING 9:32 Continuation of the hearing held on December 12, 2022. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Robert Osadchuck, Clerk at the hearing JUDGMENT MISE EN GARDE : Interdiction de divulgation ou diffusion : le Code de procédure civile (« C.p.c . ») interdit de divulguer ou diffuser toute information permettant d’identifier une

partie ou un enfant dont l’intérêt est en jeu dans une instance en matière familiale, sauf sur autorisation du tribunal (article 16 C.p.c .). [ 1 ] The appellant has appealed certain conclusions of the divorce judgment dated September 16, 2022, rendered by the Honourable Justice Pierre A. Béliveau of the Superior Court, District of Montreal. Pursuant to

article 30 of the Code of Civil Procedure (“CCP”), the appellant has simultaneously filed an application for leave to appeal de bene esse the dismissal of her cross-application. [ 2 ] For his part, the respondent has filed an application to dismiss the appeal and, alternatively, he seeks the provisional execution during the appeal of the orders of the trial judge which are not challenged in appeal. The application for leave to appeal the dismissal of the cross-application [ 3 ]

Article 30 CCP provides that leave to appeal is required when a trial judgment has dismissed a judicial application because of its abusive nature. The appellant submits that notwithstanding the trial judge’s findings that her pleadings and judicial conduct were abusive, leave to appeal is not required in this case because the trial judge would not have dismissed her cross-application for this reason. The appellant is mistaken. [ 4 ] The appellant claimed $172,143.63 as an additional provision for costs to cover the unpaid balance on accounts billed to her by various lawyers: para. 255 of the trial judgment.

The trial judge dismissed this claim after a lengthy and thorough review of the appellant’s conduct, which allowed him to conclude that the “Court cannot condone the wife’s abuse of the judicial system by repeatedly granting to her provisions for costs”: para. 290 of the trial judgment.

The trial judge added that “the Court is of the view that it is imperative that a declaration of abuse be indicated in the conclusions of this judgment to send a clear message that such conduct shall not be tolerated in the future”: para. 301 of the trial judgment. [ 5 ] The trial judge also dismissed the appellant’s claim for damages, based on a finding of abuse of procedure: [303] The wife claims $ 1,250,000 as damages - $ 750,000 for herself, and $ 250,000 for each child – due to the husband’s alleged abuse and violence that she allegedly suffered as well as the unjustified placement of the children in 2019.

Once again, this claim by itself is clearly an abuse of procedure , especially considering the significant amount claimed and the feeble evidence adduced to support same. (Emphasis added) [ 6 ] Moreover, when read with the judgment as a whole, it is readily apparent the trial judge also rejected, based on abuse of procedure, the numerous other claims set out in the appellant’s cross-application: paras. 317 to 366 of the trial judgment. [ 7 ] As a result, the trial judge concluded that, on the whole, the appellant’s proceedings were abusive, as was her conduct: [385] DECLARES the defendant’s pleadings and judicial conduct abusive; [387] DIMISSES any and all claims of the parties, save and except for those set out in the conclusions of this judgment; [ 8 ] It appears clear to the Court that the appellant’s cross-application was dismissed because of its abusive character.

As recently

noted by the Court in Moghaddam c. Succession de Naraghi , 2022 QCCA 284 , para. 11 : [11] Comme la Cour l’a décidé à de nombreuses reprises depuis l’entrée en vigueur du nouveau C.p.c. , le jugement qui rejette une demande introductive d’instance ou une demande reconventionnelle en raison de son caractère abusif et la déclare explicitement ou implicitement abusive dans ses motifs ou son dispositif, ne peut être porté en appel que sur permission, et ce sans égard au fait que d’autres motifs puissent également être invoqués à l’appui du rejet du recours. [ 9 ] Leave to appeal the dismissal of the cross-application is therefore required pursuant to

article 30 CCP. Such leave may only be granted if the Court considers that the appeal of the dismissal of the appellant’s cross-application should be submitted to the Court, for example because it involves a question of principle, a new issue of law or an issue of law that has given rise to conflicting judicial decisions. [ 10 ] To challenge the finding of abuse, the appellant essentially submits that the trial judge should not have taken into account her previous conduct in the litigation or her conduct in other proceedings. We do not agree that the trial judge erred in so doing in this case.

The trial judge reviewed the appellant’s prior conduct in the context of her request for an additional provision for costs, whose purpose was to obtain reimbursement from the respondent for the costs she had incurred in proceedings which were themselves abusive and which she had initiated. [ 11 ] Moreover, the appellant fails to identify a question of principle, a new issue of law or an issue of law that has given rise to conflicting judicial decisions that would justify granting leave to appeal the dismissal of her cross appeal.

The application to dismiss the appeal [ 12 ] As regards the appeal with respect to the other conclusions of the trial judgment, the respondent seeks its dismissal on two alternative grounds: the appeal has no reasonable chance of success, and it is also tardy. Since we conclude that the appeal has no reasonable chance of success, we need not deal with the second ground of dismissal. [ 13 ] The conclusions set out in paragraph 12 of the appellant’s notice of appeal ask the Court to make the following orders: (

a) ALLOW the appeal; (

b) QUASH the first instance judgment in the following respects; (

c) QUASH the declaration of the Appellant’s abusive pleadings and judicial conduct; (

d) AWARD to the Appellant Parenting Time; (

e) CONDEMN the Respondent to pay to the Appellant damages for physical and emotional abuse together with interest and interest indemnity according to

article 1619 C.C.Q.; (

f) REVISE the provision for spousal support (alimentary pension) to $3,500 per month for a term of 5 years, reserving the right of the Appellant to take proceedings to extend or eliminate the term; (

g) CONDEMN the Respondent to pay the Appellant with legal costs both in first instance and on appeal. [ 14 ] As discussed above, the conclusions in paragraphs 12(

c) and (

e) of the notice of appeal require leave to appeal because of the trial judge’s findings of abuse. As we already concluded above, such leave will not be granted. [ 15 ] What remains, therefore, are the conclusions set out in paragraphs 12(

d) and (

f) concerning parenting time and spousal support. [ 16 ] With respect to parenting time, it should be noted that the two children were born on [...], 2005, and [...], 2007, respectively. They are thus presently aged 17 and 15. They are also the subject of protective orders issued by the Court of Québec, at the request of the Director of Youth Protection, removing the children from the appellant’s care: paras. 12 to 14 and 40 to 43 of the trial judgment. Moreover, the trial judge concluded from the evidence that the children preferred to remain with the respondent: para. 45 of the trial judgment.

He also concluded that the appellant attempted to alienate the children from the respondent: paras. 48 to 52.

The trial judge nevertheless indicated that the appellant could, in the future, seize the Superior Court of the matter of parenting time should the situation evolve: para. 61 of the trial judgment. [ 17 ] In these circumstances, we are of the view that the appeal on the issue of parenting time is doomed to failure. [ 18 ] The appellant nevertheless argues that the trial judge should not have relied on the decisions pertaining to the children rendered by the Court of Québec under the provincial youth protection legislation, as it was he who was solely competent to decide the issue of parenting time under the Divorce Act .

This argument is also doomed to fail in appeal. The judge specifically stated in his judgment that he solely held jurisdiction on the matter of parental time: para. 27 of the trial judgment. He further considered the best interests of the children in reaching his decision on parental time, as well as the pertinent factors set out in the Divorce Act : paras. 31-33 of the trial judgment. [ 19 ] With respect to spousal support, the trial judge determined the gross annual income of the respondent considering the evidence before him, including a joint expert report from PWC: paras. 231 to 235 of the trial judgment.

He further concluded that this income was

insufficient to meet the needs of the respondent and of the children: para. 236 of the trial judgment.

The trial judge nevertheless granted the appellant monthly spousal support of $2,500 for a term of two years, considering her relatively young age at the time of the separation (44 years) and her ability to earn gainful income: para. 241 to 250 of the trial judgment. [ 20 ] The only ground raised in the notice of appeal to challenge the spousal support order is that the judge allegedly failed to find that the respondent’s capital assets were greater than the appellant’s and that he should have factored this in his analysis: paras. 17 and 18 of the notice of appeal.

Since the conclusions of the trial judge with respect to the respondent’s income are largely based on a joint expert report, we are of the view that this ground of appeal also has no reasonable chance of succeeding.

Moreover, the trial judge substantially added to the respondent’s income additional notional incomes and dividends to take into account a new business and potential interests earned on retained earning in his company: paras. 232-235. [ 21 ] Since we are of the view that the appeal should be dismissed on the ground that it has no reasonable chance of success, the issue of the provisional execution of the trial judgment is moot. [ 22 ] Finally, we see no reason to declare the appeal abusive as requested by the respondent.

FOR THESE REASONS, THE COURT : [ 23 ] DISMISSES the application for leave to appeal; [ 24 ] REFUSES leave to appeal from (

a) the declaration of abuse as set out in paragraph 12(

c) of the notice of appeal, and (

b) the dismissal of the applicant’s cross-demand with respect to damages as set out in paragraph 12(

e) of the notice of appeal; [ 25 ] GRANTS the application to dismiss the appeal; [ 26 ] DISMISSES the appeal; [ 27 ] THE WHOLE without legal costs, given the nature of the dispute. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. GENEVIÈVE COTNAM, J.A.