2016 QCCA 1783, 2016 QCCA 1783

Droit de la famille — 162686 2016 QCCA 1783 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026054-163 (500-12-306055-108) MINUTES OF THE HEARING DATE: October 31, 2016 CORAM: THE HONOURABLE JACQUES CHAMBERLAND , J.A. DOMINIQUE BÉLANGER , J.A. MARIE-JOSÉE HOGUE , J.A. APPELLANT D. B. In person RESPONDENT A. o. In person APPLICANT (on the motion for forced intervention) COUNSEL D. O. Mtre MARIKA DOUVILLE (Robinson Sheppard Shapiro, s.e.n.c.r.l., LLP)

DESCRIPTION : Application for leave to appeal (Articles 30, para 2 and 357 C.C.P. ) Application for leave to appeal after the expiry of time (Article 363 C.C.P .) and Application for permission to present indispensable new evidence (Article 380 C.C.P .) Application for leave to appeal after the expiry of time limit (Article 363 C.C.P .) and Application for permission to present indispensable new evidence (Article 380 C.C.P .) Motion for forced intervention (Article 185 C.P.C. ) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 15:48 Commencement of the hearing. Identification of counsel. 15:49 Submissions by Mrs. B. 16:16 Submissions by Mr. O..

16:19 Submissions by Mtre Douville. 16:28 Reply by Mrs. B.. 16:35 Recess. 16:40 Resumption of the hearing. 16:40 By the Court: judgment – see page 3. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The Court is seized with three motions for leave to appeal from four judgments rendered by Prévost J. on January 21, 2015, November 17, 2015, April 1, 2016 (from the bench) and April 8, 2016, in the context of Appellant’s divorce from the Respondent. The Court is also seized with a motion for forced intervention by D.

O., the Notary who solemnized the parties’ contract of marriage on September 8, 1988. [ 2 ] The context is that of a divorce. [ 3 ] The divorce proceedings were instituted by the Respondent on October 7, 2010.

The Appellant’s Defence and counter-claim is dated January 14, 2011, proceedings in which Appellant raised different issues relating to the custody of the two children of the couple, the alimentary support for both the Appellant and the children, the partition of the family assets and, in this regard, the annulment of the contract of marriage. [ 4 ] The trial proceeded for eight days from November 12 to November 24, 2014, in Montréal.

In the context of this trial, the Appellant argued that the notarial contract of marriage was a false and forged document, to which she had never freely and willingfully consented to. On November 14, 2014, Prévost J. authorized the Appellant to proceed by way of incidental improbation and, given the impact this procedure might have on the partition of the family assets, splitted the action [1] , leaving the consequences (mainly financial) arising from the dissolution of the marriage for a later date [2] . [ 5 ] The trial proceeded on that basis and, on January 21, 2015, the judgment was rendered.

The divorce of the parties was pronounced, the Appellant was granted the custody of the two children, the support payable by the Respondent to the Appellant personally and for the benefit of the children, for the period from October 1, 2010 to December 31, 2014, and after, was established, but the Appellant’s claim for support payments for herself was dismissed while her claim for one-half of the family patrimony was granted. [ 6 ] There was no appeal from that judgment, at the time. [ 7 ] The motion for improbation of the marriage contract was instituted the next day, January 22, 2015.

The parties were examined on discovery on August 5, 2015 (the Appellant) and September 21, 2015 (the Respondent). The trial was hold on October 8, 2015 and the judgment rendered on November 17, 2015. Prévost J. heard contradictory versions of the circumstances surrounding the solemnization of the contract of marriage and concluded that Appellant’s testimony was not credible.

He dismissed the motion for improbation, with costs. [ 8 ] There was no appeal from that judgment, at the time. [ 9 ] The trial regarding the financial consequences arising from the dissolution of the marriage, including the Appellant’s claim for a compensatory allowance was set for April 1, 2016. At the outset of the hearing on April 1, 2016, the Appellant asked for a postponement in order for a forensic expertise to be carried on the original copy of the contract of marriage notarized by notary D. O.. Her motion was dismissed from the bench, the reasons being noted on the “procès-verbal d’audience” (page 2/4).

The judge of the first instance then heard the parties on the question of the compensatory allowance and took the matter under advisement. [ 10 ] The judgment rendered from the bench regarding the postponement and the forensic expertise was not brought to appeal, at the time. [ 11 ] Prévost J. rendered his judgment regarding the compensatory allowance on April 8, 2016. Here again, the judge of first instance was far from being impressed by Appellant’s credibility (para. 41).

On the basis of the evidence before him – referring to the “lacunes” and “incertitude” of such evidence (para. 43) – he concluded that the Appellant was entitled to a compensatory allowance in the amount of $109,080.57 with the interest and the additional indemnity from the date of the judgment. [ 12 ] The Appellant filed an appeal from this judgment, as well as from the judgments rendered on January 21, 2015 and November 17, 2015, on May 6, 2016. To the notice of appeal was attached an “Application for leave to appeal re: judgments rendered”.

[ 13 ] On September 9, 2016, the parties appeared before a judge of this Court, Kasirer J., sitting in chambers, concluded, as per the agreement of the parties, that the various motions would proceed before a panel of this Court on October 31, 2016. [ 14 ] The Court will now proceed with the various motions before it. [ 15 ] Before going any further, it is important to note that Prévost J. splitted the action on November 14, 2014, leaving the consequences arising from the dissolution of the marriage for a later date in view of the improbation proceedings to be instituted by the Appellant regarding the contract of marriage. [ 16 ] At the time, it was clear that the parties could not appeal from the first judgment to be rendered until the second one, the one “terminating the proceedings”, was rendered (art. 273.2 old C.C.P .).

The law was the same at the time Prévost J. rendered his first judgment on January 21, 2015. The Appellant could not appeal from that judgment until the second one was rendered. [ 17 ] This is exactly what the Appellant did. The second judgment was rendered on April 8, 2016, and the Appellant filed her appeal on May 6, 2016, within the 30-day time limit mentioned in the new Code of Civil Procedure (art. 360). [ 18 ] Consequently, Appellant’s appeal from the judgments dated April 8, 2016 and January 21, 2015 was properly initiated.

Appellant’s applications for leave to appeal form the January 2015 judgment are thus without object, and will be dismissed, without cost (motions #9 and #9.2 on the Court’s docket). [ 19 ] Relevant to this appeal is also Appellant’s application for permission to present indispensable new evidence (dated June 27, 2016) in the form of a forensic examination report to be obtained regarding some handwritten notes, including the signature appearing on various payments, transfer of funds and log notes.

According to the Appellant, the need for such forensic examination report was prompted by Respondent’s denial that these documents were written and/or signed by him. [ 20 ] Appellant’s motion does not meet the requirements for new evidence under articles 380 new C.C.P . The evidence is not new; it was available in first instance. If the allegations of the motion are true, the Appellant, who was then represented by counsel, knew at the time of trial that the documents question were handwritten by the Respondent and/or bore his signature. The Appellant could then have the documents examined by an expert.

It is too late now to have such a forensic examination carried on and the report of the expert filed in the Court record. [ 21 ] The application will be dismissed, without costs. [ 22 ] The judgment rendered on November 17, 2015, dismissing Appellant’s incidental improbation, is a judgment rendered in the course of a proceeding. Such a judgment may be appealed with leave of a judge of this Court, under certain conditions. It must be appealed “without delay” (article 31 new C.C.P .). [ 23 ] In the case at bar, there was no appeal from that judgment at the time, nor within the 30-day time limit mentioned in

article 360 new C.C.P . It was appealed for the first time in Appellant’s notice of appeal dated May 5, 2016. [ 24 ] The time limits for appeal are “strict time limits” and “the right of appeal is forfeited on their expiry” (article 363 new C.C.P .). Nevertheless, the Court may, under certain conditions, authorize an appeal if not more than six months have elapsed since the judgment. It is the case here, but the Appellant fails to convince us that it was impossible for her to act earlier.

She knew the importance of the judgment to be rendered on her motion for improbation of the contract of marriage, and she did nothing before May 5, 2016.

In addition, the Appellant fails to convince us that her appeal, should it be authorized, would have any reasonable chance of success. [ 25 ] Consequently, Appellant’s application for leave to appeal from the November 17, 2015 judgment will be dismissed, with costs (motion #9.1). [ 26 ] Relevant to this application for leave to appeal is also an Application for permission to present indispensable new evidence in the form of a forensic examination report of the marriage contract.

Since there will be no appeal of the judgment dismissing Appellant’s improbation proceedings, the application for new evidence is without object. In addition, the application is identical to a similar motion presented to the judge of first instance on April 1, 2016, which he dismissed from the bench.

The Court will deal later with Appellant’s application for leave to appeal from that decision. [ 27 ] Appellant’s Application for permission to present indispensable new evidence in the form of a forensic examination report of the contract of marriage will be dismissed, without costs (motion #9.1 plus). [ 28 ] On April 1, 2016, Prévost J. dismissed Appellant’s motion for a forensic expertise to be carried on the original copy of the contract of marriage, with costs. The judgment was not appealed from at the time.

In her two applications for leave to appeal dated June 27, 2016 (motions #9 and #9.1), the Appellant now seeks leave to appeal from that judgment on the basis of

article 363 new C.C.P . [ 29 ] This application ought to be dismissed. The reasons for Prévost J’s decision were noted on the “procès-verbal d’audience”. They are comprehensive and convincing. The motion was presented to him almost 5 months after the judgment dismissing Appellant’s motion for improbation. The Appellant admitted having had access to the original copy of the contract of marriage on September 28, 2015, well before the October 8, 2015 hearing and she did nothing.

The Appellant fails to convince us that the appeal contemplated has any reasonable chance of success. [ 30 ] Consequently Appellant’s application for leave to appeal the April 1, 2016 judgment will be dismissed, without costs. [ 31 ] D. O. was the notary who solemnized the contract of marriage signed by the parties on September 8, 1988. He was mis en cause in the improbation proceedings, and represented by counsel at the hearing held on October 8, 2015. Mr O.’s interest to intervene in the proceedings is intimately, and exclusively, linked to the improbation proceedings.

The Court being of the view that the Appellant ought not to be authorized to appeal from the November 2015 and April 1, 2016 judgments, Mr O.’s motion for forced intervention is

without object. It will then be dismissed without costs (motion #9.3 on the role).

FOR THESE REASONS, THE COURT: [ 32 ] DECLARES that Appellant’s appeal from the judgments dated January 21, 2015 and April 8, 2016 was properly initiated and that the delays to file Appellant’s brief will be computed as of today October 31, 2016; [ 33 ] DISMISSES Appellant’s application for leave to appeal from the January 21, 2015 judgment, without costs. [ 34 ] DISMISSES Appellant’s application for permission to present indispensable new evidence (dated June 27, 2016) in the form of forensic examination report of various handwritten notes, without costs. [ 35 ] DISMISSES Appellant’s Application for leave to appeal, after the expiry of the time limit, from the judgment rendered on November 17, 2015, with costs. [ 36 ] DISMISSES Appellant’s Application for permission to present indispensable new evidence in the form of a forensic examination report of the contract of marriage, without costs. [ 37 ] DISMISSES Appellant’s Application for leave to appeal, after the expiry of the time limit, from the judgment rendered from the bench on April 1, 2016, without costs. [ 38 ] REJETTE la demande d’intervention forcée, sans frais.

JACQUES CHAMBERLAND, J.A. DOMINIQUE BÉLANGER, J.A. MARIE-JOSÉE HOGUE, J.A.