2023 QCCA 594, 2023 QCCA 594

Droit de la famille — 23617 2023 QCCA 594 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030461-230 ( 500-04-077647-213 ) 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: May 3, 2023 THE HONOURABLE PATRICK HEALY, J.A. APPLICANT COUNSEL L. C.

Mtre Garance Paradis-Lemaire ( Brook Légale ) By videoconference RESPONDENT COUNSEL M. D. Mtre Sarah Canta ( Étude Légale de Me Sarah Canta ) By videoconference DESCRIPTION: Application for leave to appeal De Bene Esse from a judgment rendered in the course of the proceeding on February 13 th, 2023, by the Honourable Serge Gaudet of the Superior Court , District of Montréal . (Articles 30 (2) and 357 C.C.P. ) Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING 9:27 Commencement of the hearing.

Identification of counsel. 9:30 Submissions by Mtre Canta. 9:37 Discussion between the judge and Mtre Canta.

9:38 Submissions by Mtre Paradis-Lemaire. 9:47 Discussion between the judge and the parties. 9:50 BY THE JUDGE : The judgement will be rendered on the minutes of hearing this afternoon. Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT 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 .). [ 1 ] The petitioner seeks leave to appeal against two conclusions in a judgment of the Superior Court in a family matter that the judge described as a severe conflict. [1] Both conclusions are cash sums awarded to the respondent.

The first is a sum of $3000.00 as compensation for goods not recovered by the respondent. The second is an order for costs under

article 342 C.C.P. Neither conclusion may be appealed as of right; both require leave in accordance with the third paragraph of

article 30 C.C.P. [ 2 ] The first claim advanced by the petitioner is that the trial judge made palpable and overriding errors in his assessment of the evidence and that as a result he erred in his conclusion that the respondent was entitled to a sum of $3000.00 as compensation for things he was unable to recover after the separation of the parties.

After a careful and detailed examination of the evidence, the judge concluded in fact that the petitioner persistently and by various means frustrated the respondent’s attempts to recover various items of moveable property after an earlier judgment of the Superior Court authorised him to do so. He also concluded that the items that the Respondent sought to recover were no longer recoverable due to the petitioner’s actions.

The judge accepted the respondent’s estimate that the value of these items was “at least” $3000.00 and so ordered the petitioner to compensate the respondent in this amount. [ 3 ] The second conclusion is an order pursuant to

article 342 C.C.P. that the petitioner pay judicial costs in twelve monthly payments to the respondent for a total of $5000.00. This figure represents an estimate by the judge of the costs incurred by the respondent as a result of the petitioner’s conduct of proceedings between the parties.

Article 342 C.C.P . grants a judge a discretion to sanction substantial breaches noted in the course of those proceedings. The judge’s reasons record multiple instances in the course of these proceedings. [ 4 ] Under

article 30 C.C.P . leave cannot be granted unless the petitioner demonstrates that the matter should be submitted to the Court on, for example, a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions. The petitioner must demonstrate that it is in the interests of justice for leave to be granted and that the case respects the principle of proportionality. In view of these criteria the constant jurisprudence of this Court is that leave should be granted sparingly.

An error, even a legal error, is not sufficient by itself. [ 5 ] The present application for leave satisfies none of the necessary criteria. The application raises only questions of fact that have significance between the parties and do not merit submission to a panel of this Court. The application discloses no error that could warrant the intervention of the Court. FOR THESE REASONS THE UNDERSIGNED: [ 6 ] DISMISSES the application for leave without costs. PATRICK HEALY, J.A.