r v. AN., 2010 QCCA 2307

Droit de la famille — 103398 2010 QCCA 2307 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021179-106 (500-12-256444-013) DATE: December 6 th , 2010 IN THE PRESENCE OF THE HONOURABLE JACQUES DUFRESNE, J.A. A. W. PETITIONER – Defendant - petitioner v. AN. L. RESPONDENT – Plaintiff - respondent JUDGMENT [ 1 ] The petitioner has filed a motion for leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Carole Julien), rendered October 19, 2010, which dismissed his motions to reduce the amount of periodic payments for child support dated September 28, 2009 and September 27, 2010 and imposed redress pursuant to

article 54.1 C.C.P. [ 2 ] The conclusions of the judgment read as follows : [26] REJETTE les requêtes actuellement pendantes de Monsieur à savoir : - sa requête en réduction de la pension alimentaire du 28 septembre 2009; et - sa requête en réduction de la pension alimentaire du 27 septembre 2010; [27] LE TOUT avec dépens; [28] Compte tenu des conclusions du Tribunal en vertu de l'article 54.1 C.p.c. et le rejet des requêtes en modification émanant de Monsieur; [29] VU le préjudice causé à Madame, notamment quant à l'obligation de se présenter à la Cour sans que Monsieur ne respecte les ordonnances de la Cour; [30] LE TRIBUNAL ORDONNE que toute nouvelle procédure en modification des mesures accessoires au divorce soit autorisée par le Juge en chef de la Cour avant d'être signifiée à madame et porte mention de cette autorisation pour éviter tout déplacement inutile à Madame. [ 3 ] The petitioner’s attorney explained that her client did not attend court on the day that the motions were heard because, due to no fault of his own, all the relevant documents were not available at that time.

The attorney is of the view that the matter is one of principle. She contends that the dismissal of the motions was premature, at least regarding the motion that she filed in 2010 to vary corollary relief. The attorney argues as well that the judge mistakenly concluded that the petitioner was in bad faith and that he had abused his right to take legal action. [ 4 ] After having dismissed a motion to postpone the hearing of the petitioner's motions to vary corollary relief to reduce the child support payments because of his careless behaviour, the judge in first instance dismissed the motions.

In paragraphs 10 to 24 of her reasons, the judge sets forth in great detail the facts that show the negligent conduct of the petitioner and his improper use of procedure, which amply suffice to justify her conclusions. The judge took all the relevant aspects of the file into account and her conclusions were plainly justified by the tenor of the record and by the conduct of the petitioner. [ 5 ] In the main, the judgment is the result of the exercise of judicial discretion. No grounds were raised that would justify that leave be granted.

The petitioner’s motion should therefore be dismissed. [ 6 ] When informed by the undersigned that the part of the judgment bearing on the dismissal of the motions to vary corollary relief (reduction of child support payments) was susceptible of appeal as of right pursuant to subs. 21(1) of the Divorce Act , R.S.C. (1985), c. 3 (2 nd supp.), but that the time limit to bring the appeal had expired, the petitioner’s attorney brought a verbal motion to extend the time period allowed to inscribe the judgment of the Superior Court in appeal (subs. 21(4)).

This motion must also be dismissed given that, for the reasons set forth above, the appeal has no reasonable chance of success.

[ 7 ] FOR THESE REASONS, the undersigned: [ 8 ] DISMISSES petitioner’s motion for leave to appeal the judgment rendered by the Superior Court on October 19, 2010, without costs; and [ 9 ] DISMISSES petitioner’s verbal motion to extend the time for instituting the appeal of the said judgment, without costs. JACQUES DUFRESNE, J.A. Mtre Monica Lee Attorney for Petitioner Mrs. An. L. In person Date of hearing: November 25, 2010