2022 QCCA 967, 2022 QCCA 967

Droit de la famille — 221184 2022 QCCA 967 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030027-221 ( 500-12-309265-118 ) 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 (arts. 15 and 16 C.C.P .). DATE: July 8, 2022 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. FRÉDÉRIC BACHAND, J.A. PETER KALICHMAN, J.A.

APPELLANT COUNSEL A. H. Mtre muriel librati ( Teitelbaum Librati ) By videoconference RESPONDENT S. Ha. PRESENT AND Unrepresented By conference call On appeal from a judgment rendered on April 6, 2022 by the Honourable Gregory Moore of the Superior Court , District of Montreal .

DESCRIPTION: Application to dismiss an appeal (Article 365 C.C.P. ). Application for leave to appeal after expiry of time limit (Article 363 C.C.P. ). Application to suspend provisional execution (Articles 379 and 660 C.C.P. ). Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 9:27 Commencement of the hearing. Continuation of the hearing held on July 7, 2022. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. 9:28 Conclusion of the hearing.

Lesly Ramos, 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 (arts. 15 and 16 C.C.P .). [ 1 ] The Applicant, A. H., seeks leave to appeal outside the applicable delays, a judgment of the Superior Court (the Honourable Gregory Moore), ordering him to pay monthly spousal support of $1,000 to the Respondent, S. Ha..

He also seeks to stay provisional execution of that judgment. [ 2 ] Ms. Ha. opposes both of Mr. H.’s motions and brings her own, seeking dismissal of the appeal and a declaration to the effect that it is abusive. [ 3 ] The background to the various motions can be summarized as follows: i. The parties separated in 2011 after 20 years of marriage; ii. By judgment dated November 24, 2015, the Superior Court (the Honorable Michel Déziel) granted the parties’ divorce but refused Ms. Ha.’s request for spousal support ( Droit de la famille – 153107 , 2015 QCCS 5776 );

iii. Ms. Ha. appealed that decision and in June, 2016, the Court allowed her appeal in part and ordered Mr. H. to pay $1,000 in monthly spousal support ( Droit de la famille – 161445 , 2016 QCCA 1044 ); iv. One year later in 2017, Mr. H. brought an application to vary the order requiring him to pay spousal support. His application was dismissed by the Superior Court (the Honourable André Roy) ( Droit de la famille – 181223 , 2018 QCCS 2454 ). Justice Roy concluded that Mr. H. had failed to establish a material change in circumstances which would justify varying the order.

He added that even if he had been satisfied that a material change had occurred, he would still have dismissed the application; and v. In 2020, Mr. H. brought a second application to vary spousal support which was heard on the merits over two days in October 2021. The judgment dismissing this application was rendered in April of 2022. [ 4 ] The judge agreed with Mr. H. that there had been a material change in circumstance in light of his 2019 diagnosis of kidney disease and his resulting decrease in revenue. However, he was not convinced that support should be varied.

In reaching his conclusion, the judge noted that both the Court in 2016 and Justice Roy in 2018, viewed Mr. H.’s insistence on maintaining a secondary residence in Florida as being inconsistent with his assertion that he was unable to afford spousal support. Furthermore, the judge agreed with Ms. Ha. that Mr. H.’s application was abusive and awarded her damages of $5,000. [ 5 ] Mr. H. filed a notice of appeal and an application to stay provisional execution. The application to stay execution was denied by the Honourable Benoît Moore, J.C.A., who determined that the appeal had not been regularly formed.

More specifically, he concluded that since the judgement declared Mr. H.’s application to vary spousal support to be an abuse of procedure, leave to appeal was required but had not been sought. [ 6 ] Mr. H. subsequently brought his application for leave to appeal after the expiry of the time limit and a new application to stay provisional execution, which was deferred to us. **** [ 7 ] According to Mr. H., the judge erred in: (

i) failing to consider the needs and means of Ms. Ha.; (ii) failing to take account of the fact that at age 65 (in several years), he will no longer be eligible for disability payments; (iii) failing to consider that his secondary Florida residence is no longer a liability; (iv) concluding that he contributes to the expenses of a third residence since he only contributes to food and a portion of the household expenses; and (

v) determining that his application was an abuse of procedure when, in fact, it was Ms. Ha. who had acted abusively. **** [ 8 ] The Court will not grant Mr. H.’s motion for leave to appeal outside the delays. While Mr. H. meets certain of the criteria (less than 6 months have elapsed since the judgment and it was impossible for him to have acted sooner), he has failed to convince the Court that his appeal has a reasonable chance of success. [ 9 ] Moreover, the judge concluded that Mr. H.’s second attempt to cancel spousal support along with his repeated and unfounded claims about Ms.

Ha.’s personal life, amounted to an abuse of procedure. Mr. H. was therefore required to seek leave in accordance with

article 30, al. 2(3) C.p.c . and thus to show that the appeal raises an issue of principle or a question that is either new or is the subject of contradictory jurisprudence. Mr. H. identifies no such issue or question and this conclusion alone justifies dismissing his application. [ 10 ] The Court adds that the judge’s conclusion regarding abuse commands deference and Mr. H. fails to demonstrate any reviewable error in this aspect of the judgment. On the contrary, as the judge notes, in two separate judgments it was made clear to Mr.

H. that taking on monthly expenses pertaining to a secondary residence that he used only infrequently must not conflict with his capacity to respect his duty of alimentary support. In its 2016 judgment, the Court described as “self-evident” that Mr. H. must “attend to his alimentary responsibilities before taking on the major monthly expense of a secondary residence which, given the extent of his professional responsibilities in Montreal, he can only use infrequently”. This admonition was reiterated by Justice Roy in 2018 when Mr. H. brought his first application to vary spousal support. [ 11 ] Mr.

H. takes issue with the judge’s

interpretation of the evidence regarding the expenses related to the residence in which he lives and the two residences which he owns but does not occupy. However, he fails to identify a palpable and overriding error in that regard. Ultimately, Mr. H. invites the Court to review the evidence and to arrive at a different result, which is not the role of an appeal court. [ 12 ] In light of the Court’s conclusion, the remaining motions become academic and will be dismissed.

FOR THESE REASONS, THE COURT: [ 13 ] DISMISSES the Application for leave to appeal after the expiry of the time limit; [ 14 ] DISMISSES as academic, the Application to suspend provisional execution; [ 15 ] DISMISSES as academic, the Application to dismiss the appeal;

[ 16 ] Without legal costs given the nature of the matter. MARIE-JOSÉE HOGUE, J.A. FRÉDÉRIC BACHAND, J.A. PETER KALICHMAN, J.A.