2012 QCCA 2280, 2012 QCCA 2280

Droit de la famille — 123636 2012 QCCA 2280 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022820-120 (500-12-295573-087) DATE: DECEMBER 19, 2012 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. JACQUES R. FOURNIER, J.A. MARIE ST-PIERRE, J.A. N. J. APPELLANT – plaintiff v. M. H.

RESPONDENT - defendant JUDGMENT [ 1 ] The appellant asks the Court to review and set aside the judgment rendered on June 6, 2012 by the Superior Court, District of Montreal (the Honourable Madam Justice Hélène Le Bel), which granted the divorce of the parties, determined the custody of their children as well as child and spousal support, and divided the family patrimony and all matrimonial assets. The judgment dismissed the appellant's request for a compensatory allowance. * * [ 2 ] In family cases, trial judges' decisions are to be given considerable deference.

As stated by Gonthier, J. for the Supreme Court of Canada in M. (M.E.) v. L. (P.) : Before going on to analyze the circumstances of this case, I feel it is worth emphasizing the deference that must be accorded to the discretionary power of the trial judge under art. 559 C.C.Q. Clearly this principle is general in application, but it assumes even greater importance in family law for two reasons. The situation arising where a family is in the process of dissolving is unique. First, financial matters must be dealt with quickly so as to avoid exhausting the parties' resources and allow them to start their lives anew.

Second, this is an area where the parties have generally not kept documents that would provide evidence of each one's contribution. Oral evidence is thus of first importance, and assessing the credibility of witnesses is very much the function of the trial judge. In a proceeding involving a compensatory allowance, a trial judge's error must be obvious for an appellate court to intervene. [1] [ 3 ] The same rule applies to matters of child or spousal support (for instance, see: Hickey v. Hickey ), [2] custody and rights of access (for instance, see: Van de Perre v.

Edwards ), [3] compensatory allowance (for instance, see: P. (S.) v. R. (M.) ), [4] or partition of the family patrimony or matrimonial regime, [5] all of which are at stake here. [ 4 ] The standard of appellate review is thus stringent and a court of appeal will not reverse or modify a judgment unless it is vitiated by an error of law which, by its nature, affected the issue of the dispute or by a palpable and overriding error of fact (i.e. a substantial and manifest error in the evaluation of the evidence, including the credibility of the witnesses).

The appellant bears the burden of demonstrating the existence of such errors and cannot simply ask the Court to reassess the evidence and substitute its own opinion for that of the trial judge. [ 5 ] In the present case, no error of law can be discerned in the Superior Court judgment and the appeal rests entirely on the submission that the judge misapprehended the whole of the evidence.

This ground of appeal must fail. [ 6 ] Firstly, it must be noted that, although the appellant appears to have filed most of the evidence that was before the Superior Court, including the transcripts of all testimonies, she did not file all of it. The respondent, who is foreclosed from filing his factum, did not remedy that omission.

The Court must therefore be more cautious than usual in reviewing the findings of fact of the trial judge and this adds to the deference that is due to her judgment. [6] [ 7 ] Secondly, as far as one can see from the appellant's factum, the evidence at trial was lengthy, complex and contradictory. [7] The judge reviewed it carefully and thoroughly. She had some difficult choices to make and various claims to arbitrate; she explained her reasons at length, in a meticulous and convincing manner. Her conclusions are entirely reasonable and well-balanced.

[ 8 ] Although the appellant challenges many of the judge's findings and conclusions, she is unable to “put her finger on” the crucial flaw, fallacy or mistake in the judgment. [8] Basically, she disagrees with the judge on a variety of issues and, relying on parts of the evidence without considering it in context and in its entirety, she suggests that the judge should have believed her version of the events rather than that of the respondent. [ 9 ] This is not sufficient and we find no justification for intervention, matters of credibility, which are foremost in the present case, being the privileged domain of the trial judge. [ 10 ] As far as the federal guidelines for child support are concerned, the evidence, as it stands, does not support their application to the present matter.

It must also be noted that, during trial, counsel for the appellant expressly agreed that the Quebec guidelines were to be applied. The appellant has not disavowed her lawyer in accordance with the provisions of the Code of Civil Procedure (art. 243 and ff.). [ 11 ] Thirdly, it must be noted that, in her factum, the appellant appears to have filed exhibits that were not entered as evidence at trial. She did so without obtaining the authorization prescribed by

article 509 of the Code of Civil Procedure . Had she properly petitioned the Court, however, the filing of these exhibits could not have been permitted since they do not meet the requirements set out in

article 509, as interpreted by the Court. [9] In any event, even if they were to be considered, they are, unfortunately, meaningless and could not change the issue of the appeal. [ 12 ] One last comment is in order. In her factum, the appellant wrote that : 2. By allowing [the minor child] to travel with respondent abroad, the court will put her in great danger […]. That's why I don't want her to leave Town A until she is 18 years old. [10] [ 13 ] In fact, the trial judge did not unconditionally allow the child to travel abroad with her father.

Her order in that respect reads as follows: [195] ORDONNE que ni l'un ni l'autre des parents ne puisse amener l'enfant […] à l'extérieur du pays sans le consentement écrit de l'autre parent ou l'autorisation du Tribunal ( ORDERS that neither parent be allowed to take […] outside of the country without the written consent of the other parent or the authorization of th Court ); [ 14 ] The appellant may thus refuse to allow the child travel abroad with her father and, unless the Superior Court decides otherwise upon formal request, she will not.

We trust that this clarification will help put the appellant's worries at rest. * * [ 15 ] In another respect entirely, the appellant, in answer to a question from the Court, stated that the respondent has not paid the child support ordered by paragraph [197] of the judgment of the Superior Court. Counsel for the respondent confirmed this information, although he tried to explain that his client does not have the financial means to comply with this order.

In the circumstances, this explanation must obviously be disregarded and, needless to say, cannot relieve the respondent from his obligation to pay the child support ordered by the Superior Court. Such child support is to be paid pursuant to the provisions of the Act to facilitate the payment of support . [11] We suggest that, in order to accelerate the treatment of the file in this regard, the appellant contact the Minister of Revenue of Quebec, who is charged with the application of the Act . FOR THESE REASONS, THE COURT: [ 16 ] DISMISSES the appeal, without costs. MARIE-FRANCE BICH, J.A. JACQUES R.

FOURNIER, J.A. MARIE ST-PIERRE, J.A. Mrs. N. J. Personally Appellant Mtre Anthony Karkar For the respondent Date of hearing: December 6, 2012