2013 QCCA 1224, 2013 QCCA 1224

Droit de la famille — 131958 2013 QCCA 1224 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023505-134 ( 550-04-013959-107 ) MINUTES OF THE HEARING DATE: July 10, 2013 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. CLÉMENT GASCON, J.A. APPELLANT ATTORNEY S. C. Mtre Joanne Cousineau RESPONDENT ATTORNEY J. L. In person

Motion of respondent J. L. to dismiss an appeal from a judgment rendered on February 28, 2013 by the Honourable Justice Pierre Dallaire of the Superior Court, District of Hull. Clerk: Marcelle Desmarais Courtroom: Pierre-Basile-Mignault HEARING 10 h 31 Mr. J. L. has nothing to add to his written motion. 10 h 32 Submissions by Mtre Joanne Cousineau 10 h 48 Rebuttal by Mr. J. L. 10 h 54 Ends of arguments 10 h 54 Suspension 11 h 24 Resumption. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT

[ 1 ] J. L. has filed a motion to dismiss the appeal brought by S. C. of a judgment of the Superior Court, District of Hull (the Honourable Pierre Dallaire presiding), rendered on February 28, 2013, which, inter alia , dismissed Ms. C.'s motion for sole custody of the couple's child, X. [ 2 ] Mr. L. is a self-represented litigant. His motion is entitled "Requête pour rejet d'un appel abusif et dilatoire (art. 501 [al. 1]

(5) C.p.c .)" but when one reads the substance of the motion it is plain that he also submits that Ms. C.'s appeal was not filed in a timely manner (art. 501, para. 1,

(1) C.C.P.) and that it has no reasonable chance of success (art. 501, para. 1,

(4.1) C.C.P.) (see paragraphs 5, 8 and 9 of the motion). [ 3 ] Firstly, Mr. L. submits that the appeal should be dismissed because the inscription in appeal was filed outside the 30-day time limit allowed by law. Ms. C. answers that she did not receive the judgment until March 8, 2013, such that her inscription in appeal cannot be considered to be late. The evidence on this point is not conclusive and, on balance, insufficient to justify dismissing the appeal on this sole basis. [ 4 ] Secondly, Mr.

L. submits that the grounds for appeal are not serious and would not justify disturbing the trial judgment. [ 5 ] We agree. The inscription fails to disclose an argument that offers Ms. C. a reasonable chance of success on appeal. [ 6 ] In her motion for sole custody brought before Dallaire J., Ms. C. sought to vary the judgment of Bédard J., dated November 30, 2011, who had ordered joint custody for X. One of Ms. C.'s principal arguments before Bédard J. was that Mr. L.'s apartment was insalubrious and there were signs of drug use on the premises.

She said that the setting was unfit for the exercise of child custody. On his review of the facts, Bédard J. disagreed. [ 7 ] The same arguments were raised before Dallaire J. who noted that Bédard J. had considered the arguments to be insufficiently serious to present an obstacle to an order of joint custody. [ 8 ] At the end of the day, Dallaire J. found that the evidence of untidiness in Mr.

L.'s apartment – a fact which, according to the judge, was not in dispute – did not amount to a significant change in circumstances that would justify departing from the joint custody order made by Bédard J. [ 9 ] In her inscription in appeal, the appellant has shown no basis that would allow the Court to have the judgment of the Superior Court set aside. [ 10 ] No plausible argument has been made that Dallaire J. misapplied the law.

His findings of fact are, absent of an overriding error, deserving of deference on appeal. [ 11 ] The appeal presents no reasonable chance of success and for this sole reason should be dismissed. [ 12 ] Given the familial nature of the dispute, there will be no order as to costs. FOR THESE REASONS , the Court: [ 13 ] GRANTS the motion to dismiss the appeal, without costs; [ 14 ] DISMISSES the appeal, without costs. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. CLÉMENT GASCON, J.A.