2022 QCCA 1629, 2022 QCCA 1629

Droit de la famille — 222099 2022 QCCA 1629 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030244-222 ( 500-12-336513-175 ) 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: November 25, 2022 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. STEPHEN W. HAMILTON, J.A.

MICHEL BEAUPRÉ, J.A. APPELLANT A. J. ABSENT AND Unrepresented RESPONDENT Y. T. ABSENT AND Unrepresented DESCRIPTION: Application for leave to appeal after the expiry of time limit from a judgment rendered on September 6, 2022 by the Honourable Christian Brossard of the Superior Court, District of Montreal (Article 363 C.C.P .). Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on November 21, 2022. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 3. René Gutknecht, 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 Petitioner applies under

Article 363 of the Code of Civil Procedure (“ C.C.P. ”) for authorization to appeal after the expiry of the time limit from the judgment rendered on September 6, 2022, by the Superior Court, District of Montreal (the honourable Christian J. Brossard). That judgment dismissed her motion for a safeguard order with respect to the parenting time regarding the parties’ children as abusive, excessive and unreasonable and condemned her to pay to the Respondent the sum of $2,000 in damages.

The proposed appeal is limited to the declaration of abuse and the damages. [ 2 ] The majority of the parenting time had been attributed to the Respondent in the divorce judgment rendered less than two months earlier, on July 8, 2022. The Petitioner’s appeal from that judgment was dismissed on a motion on November 9, on the ground that the appeal had no reasonable chance of success. [ 3 ] The present motion will also be dismissed. Several grounds justify this outcome. [ 4 ] First, the Court cannot simply authorize the Petitioner to file her notice of appeal after the expiry of the time limit.

The appeal of a judgment dismissing a proceeding on the grounds of abuse also requires the granting of leave to appeal under

Article 30, para. 2(3) C.C.P. [1] , which the Petitioner never requested. Further, the Petitioner does not appear to meet the criteria for leave to appeal set out in the third paragraph of

Article 30. [ 5 ] Second, even assuming that the Court could get beyond this first difficulty, which it cannot,

Article 363 C.C.P. is clear: the time limits for appeal are strict time limits [2] and to obtain the authorization to appeal beyond the expiry of the time limit, a party must demonstrate that it was impossible in fact for it to act earlier. [3] The Petitioner admits in paragraph 30 of her motion that she “does not plead impossibility to act per se, but rather asks the court to consider clear evidence of her good faith and efforts to act within the time limit, under the circumstances”.

The Petitioner’s good faith does not remedy her failure to allege any fact that would allow the Court to understand and to excuse her decision to wait until the very last day of the time limit to start preparing her proceedings, which led to them being filed late and being refused by the clerk, or any fact that prevented her from acting earlier. [ 6 ] Third, even if the Court could get by this further difficulty, it would have to be satisfied under

Article 363 C.C.P. that the appeal has a reasonable chance of success. It is clear from a

summary review of the grounds of appeal that they do not meet this test. [ 7 ] Finally, the Court is of the view that the interest of justice, and of the parties, also justifies dismissing the motion. [ 8 ] The divorce proceedings were commenced by the Respondent five years ago. Since then, there have been more than 180 entries in the court record, 25 judgments, special case management and a six-day trial on February 16, 17, 18, 21, 22 and 23, 2022, with a reopening of the hearing on the following March 31 st .

And, as already mentioned, the Petitioner’s appeal from the judgment that followed, which dealt with the parties’ divorce and the accessory measures, including parental time, was very recently dismissed on motion by another panel of the Court. Finally, it is not the first time that the Petitioner has been condemned to pay $2,000 in damages for procedural abuse in this file. [ 9 ] In these circumstances, the definition that Justice LeBel, then of this Court, gave to the interest of justice in Costello c.

Greiss [4] , often cited since then, is very appropriate: (…), l'intérêt de la justice ne s'identifie pas seulement à celui d'une seule partie. Cette notion comprend également celui de l'adversaire, qui veut, comme ici, que son procès se termine un jour. Elle inclut également la conscience de l'intérêt général de la bonne administration et de l'utilisation rigoureuse et ordonnée du système judiciaire. Si celui-ci est souvent consacré au règlement de litiges particuliers, il demeure un service public.

Comme tel, il n'appartient pas aux parties. (…) FOR THESE REASONS, THE COURT: [ 10 ] DISMISSES the motion for leave to appeal after the expiry of the time limit, without costs given the nature of the matter. JACQUES J. LEVESQUE, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A.