2017 QCCA 228, 2017 QCCA 228

Droit de la famille — 17228 2017 QCCA 228 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026484-162 (505-04-014782-064) DATE: FEBRUARY 10, 2017 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. M. J. APPELLANT - plaintiff v. Z. Z. RESPONDENT - defendant JUDGMENT [ 1 ] The respondent, defendant in divorce proceedings in the Superior Court, seeks the dismissal of the appellant’s appeal pursuant to art. 365 C.C.P. on the basis that it has no reasonable chance of success.

The judgment of the Superior Court under review rendered on November 3, 2016 by the Honourable Madam Justice Chantal Tremblay cancelled the spousal support order pronounced by the Ontario Superior Court of Justice on October 26, 2007 in favour of the appellant retroactive to September 30, 2011.

Under that order, the respondent was obliged to pay her $1,500 per month of spousal support. [1] [ 2 ] The judgment of the Ontario Superior Court of Justice also ordered the parties to exchange their respective income tax filings and assessments no later than June 15 each year. [ 3 ] In his application to vary the support order, the respondent alleged, and the motion judge accepted, that the appellant had become financially autonomous such that his support was no longer needed. [2] She carried out an extensive review of the evidence and concluded that she could not “rely on (her) testimony to establish her annual income and earning capacity”, and found that during an out of court discovery the appellant “continued denying clear evidence of undisclosed income”.

She also concluded from the appellant’s testimony that “she was unable to explain the shortfall between her monthly income and expenses”. [ 4 ] There were numerous other contradictions the trial judge identified in the appellant’s testimony based on the exhibits produced, all of which led her to conclude that the appellant had achieved financial autonomy.

It is precisely this conclusion the appellant attacks in appeal in order to have the respondent’s motion in the Superior Court dismissed and the initial spousal support order from the Ontario Superior Court of Justice restored. [ 5 ] Her declaration of appeal asserts no errors of law but only errors of fact. The Court would have to examine them from the perspective of errors that were both manifest – clear to the eye – and also determinative of the outcome, such that without such errors having been made, she should have prevailed in the Superior Court. That is simply not possible.

She also asserts that her Chinese language C.V. in the record “had been modified by someone else”, who she “suspects is the defendant”, a subject that is not broached in the judgment of the Superior Court, and which this Court is in no position to consider. [ 6 ] It is generally the Court’s practice not to entertain motions to dismiss appeals in family matters, first because they are heard preferentially on the merits, and second, because it is a waste of resources to have parties exposed to two hearings instead of one.

This case, however, is a clear exception to that practice, and now is an appropriate time to bring this appeal to an end. FOR THESE REASONS, THE COURT: [ 7 ] GRANTS the motion to dismiss the appeal, without legal costs;

[ 8 ] DISMISSES the appeal, without legal costs. LOUIS ROCHETTE, J.A. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. M. J. In person Mtre Émilie Chevrier Barrette & Associés For the respondent Date of hearing: February 6, 2017