2021 QCCA 664, 2021 QCCA 664

Droit de la famille — 21694 2021 QCCA 664 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029398-211 ( 500-12 -342783-192) MINUTES OF HEARING DATE: April 19, 2021 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. MARTIN VAUCLAIR, J.A. MICHEL BEAUPRÉ, J.A. APPELLANT COUNSEL C. C. Mtre ALAN OVADIA ( Goldwater, Dubé ) RESPONDENT COUNSEL A. M. Mtre DANIELLE OIKNINE ( Oiknine & Associé

s) On appeal from a judgment rendered on March 3 rd , 2021 by the Honourable Karen Kear-Jodoin of the Superior Court , District of Montreal . DESCRIPTION: Application to dismiss an appeal and subsidiarily to order provisional execution notwithstanding appeal (Articles 365 and 366 C.C.P .) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 3:29 Commencement of the hearing. Identification of counsel. 3:31 Submissions by Mtre Oiknine. 3:34 Submissions by Mtre Ovadia 3:43 Reply by Mtre Oiknine. 3:48 Reply by Mtre Ovadia. 3:53 Recess. 3:57 Resumption of the hearing. 3:57 Judgment – see page 3.

Robert Osadchuck, Clerk at the hearing JUDGMENT [ 1 ] Respondent Mr M. presents a motion to dismiss Mrs C.’s appeal against a judgment rendered on March 3rd, 2021, by the Superior Court, district of Montreal (the honourable Karen Kear Jodoin), or, subsidiarily, to order provisional execution notwithstanding appeal of the judge’s orders (

i) nullifying spousal support retroactively to January 1st, 2021, and (ii) ordering the Appellant to remit the dog Willow to Respondent within 7 days of the judgment. [ 2 ] The judgment, which includes 109 paragraphs of reasons, granted the parties’ divorce, partitioned the family patrimony, determined the quantum, if any, of spousal support and its duration or cancellation, determined the ownership of the parties’ two dogs and ruled on Appellant’s claim for a further provision for costs. [ 3 ] In her notice of appeal, Mrs C. submits that the judge : - « erred in fact and law » in adjudicating the ownership of the dog Willow to Respondent, more precisely in accepting testimonial evidence from the latter contradicting the contract filed as Exhibit P-22 and in failing to consider the Animal Welfare and Safety Act ; - « erred in fact and law » in determining Respondent’s actual income and in « not awarding ongoing support to the Appellant ». [ 4 ] The Court concludes that the motion to dismiss the appeal is well-founded and that the appeal must be dismissed. [ 5 ] First, with regards the issue of spousal support, it is a well established principle that this Court owes significant deference to the trial judge’s inherently discretionary powers with respect to alimony and support matters, including the determination of the parties’ income [1] .

Yet, in her notice of appeal, Appellant fails to demonstrate or identify, even at first sight, an overriding and palpable error of the judge that might present a reasonable chance of success at the hearing of the appeal on the merits. [ 6 ] Second, the conclusion is the same with regards the issue of the ownership of the dog Willow. The Appellant raises exclusively questions of fact by challenging the judge’s conclusions on the particular circumstances and dynamics of the parties and their animals, as revealed by the evidence.

In the absence of an overriding and palpable error of the judge and of any allegation of an error of law, this ground of appeal is doomed to failure. [ 7 ] Finally, the appeal being dismissed, the subsidiary motion of Respondent to order provisional execution of the aforementioned orders notwithstanding appeal has no object. This is particularly so with regards the order concerning the retroactive nullifying of spousal support, given that such an order is subject to provisional execution as of right under paragraph 660.1° of the Code of Civil Procedure : 660.

A judgment is provisionally executed as of right, if it: (1) concerns support payments or support provision , determines arrangements regarding the custody of children or adjudicates on parental authority; […] [Underlining added] FOR THESE REASONS, THE COURT : [ 8 ] GRANTS the motion to dismiss the appeal; [ 9 ] DISMISSES the appeal; [ 10 ] WITHOUT COSTS given the nature of the matter. MANON SAVARD, C.J.Q.

MARTIN VAUCLAIR, J.A. MICHEL BEAUPRÉ, J.A.