2021 QCCA 1273, 2021 QCCA 1273

Droit de la famille — 211587 2021 QCCA 1273 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029493-210 ( 500-04-050742-098 ) MINUTES OF HEARING DATE: August 6, 2021 CORAM: THE HONOURABLE STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. GUY COURNOYER, J.A. APPELLANT COUNSEL C. K. ABSENT AND Unrepresented RESPONDENT COUNSEL S. M. PRESENT AND Unrepresented On appeal from a judgment rendered on April 8, 2021 by the Honourable André Wery of the Superior Court, District of Montreal. DESCRIPTION: Application for permission to present indispensable new evidence (Article 380 C.C.P. ).

Application to dismiss an appeal (Article 365 C.C.P .). Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault HEARING 9:06 Commencement of the hearing. Continuation of the hearing held on August 3, 2021.

9:07 Discussion between the Court and Mrs. S. M. 9:17 Recess of the hearing. 9:23 Resumption of the hearing. BY THE COURT: Judgment – see page 3. 9:24 Discussion between the Court and Mrs. S. M. 9:25 End of the hearing. René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] The Appellant has appealed from a judgment setting child support for the child of the parties. The Respondent presents a motion to dismiss the appeal and a motion for permission to present indispensable new evidence in the event the appeal continues. [ 2 ] The motions were produced May 17, 2021 and were made presentable July 6, 2021.

The Appellant’s lawyers ceased representing him before the hearing, and he was not present in person or by video at the hearing. At the hearing, the Court advised the Respondent to comply with

Article 192 C.C.P. , and postponed the hearing to August 2, 2021. [ 3 ] The Respondent served the notice required by

Article 192 C.C.P. on July 19, 2021 at the Appellant’s place of business. The Appellant has neither appointed another lawyer nor sent a notice of his intention to self-represent. He advised the court clerk that he was sick, but he did not provide any note from a doctor. He was not present in person or by video at the hearing on August 2, 2021, and the Court continued the hearing to today to give him one last chance to appoint a lawyer, attend the hearing in person or by video or provide a doctor’s note as to why he cannot appear.

He did none of these. [ 4 ] In these circumstances, the Court proceeded today on the Respondent’s motions in his absence. [ 5 ] Child support was established by Justice Collier in 2012. He fixed the Appellant’s revenue at $315,000 based on a declaration made by him to a financial institution.

Justice Collier found this figure to be consistent with the value of the Appellant’s assets and his lifestyle. [ 6 ] In 2020, the Appellant sought to reduce child support based on several factors – the closure of the language school that he owns with his father as a result of COVID, the increase in the Respondent’s revenues as a result of government COVID payments, and the fact that he sold or transferred to his ex-wife (not the Respondent) various assets. He also asked to be relieved of the obligation to contribute to daycare since the child did not attend daycare.

The Respondent made a cross-demand in which she asked that child support be increased. [ 7 ] In a lengthy and very detailed judgment, [1] Justice Wery reduced the Appellant’s income to $239,378, increased the Respondent’s income to $27,000, eliminated the daycare payments and increased the resulting child support by 30% to take into account the fact that the Appellant does not exercise any access rights.

In the end result, Justice Wery decreased child support from $1,718 per month to $1,630.49. [ 8 ] The reduction in the Appellant’s income was calculated by adjusting the figure of $315,000 to take into account the fact that he no longer is paid a salary by the school. The judge confirmed this amount by attributing a return to the Appellant’s assets and by examining his lifestyle. [ 9 ] In his appeal, the Appellant asks that his income be established at $82,024.58, with the result that child support would be fixed at $714.23 per month.

He raises several arguments which mostly pertain to the factual conclusions drawn by the judge or on how the judge used his discretion when attributing a revenue to the Appellant. [ 10 ] The exercise of attributing income to a parent who is attempting to conceal it is not a precise exercise. It rests in large part on the judge’s appreciation of the credibility of the witnesses and is largely discretionary. The Court will not intervene, unless there is a clear error by the judge or an unreasonable result. [2] [ 11 ] The Appellant fails to demonstrate any clear error or that the result is unreasonable.

The judgment is well-reasoned and the delicate exercise accomplished by the trial judge is inextricably linked to his assessment of the credibility of the Appellant. Given the standard of review, the appeal does not have any reasonable chance of success. [ 12 ] The Appellant’s appeal will therefore be dismissed.

[ 13 ] The Respondent asks, in addition to the dismissal of the appeal, that the Court declare the father a vexatious litigant, that the Court set aside the Wery judgment and re-establish the Collier judgment, and that the Court return the file to the Superior Court to assess the special needs of the child. These additional conclusions will be dismissed. The records of this Court do not indicate any vexatious conduct before the Court. The Respondent has not filed a cross-appeal and is beyond the delay to do so, such that we do not have jurisdiction to modify or set aside the Wery judgment.

In any event, her cross-appeal would be subject to the same standard of review as his appeal and would have the same chance of success. [ 14 ] Finally, the Respondent also makes a motion for permission to present indispensable new evidence to show that the school offers online courses and reopened in October 2020. Given the dismissal of the appeal and the absence of any cross-appeal, this motion is without object.

FOR THESE REASONS, THE COURT: [ 15 ] GRANTS in part the motion to dismiss the appeal; [ 16 ] DISMISSES the appeal; [ 17 ] DISMISSES the motion for permission to present indispensable new evidence; [ 18 ] THE WHOLE, without costs given the nature of the dispute. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. GUY COURNOYER, J.A.