2014 QCCA 1034, 2014 QCCA 1034

Droit de la famille — 141132 2014 QCCA 1034 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024440-141 (500-04-050945-097) MINUTES OF THE HEARING DATE: MAY 20, 2014 THE HONOURABLE MADAM JUSTICE GENEVIÈVE MARCOTTE, J.A. PETITIONER COUNSEL D. B. Mtre Sidney Cutler, Q.C. RESPONDENT COUNSEL DA. Q. Mtre Manuela Santos ME MANUELA SANTOS AVOCATE INC. MIS EN CAUSE COUNSEL Mtre Valentin Molpeceres for the child

MOTION FOR LEAVE TO APPEAL FROM TWO INTERLOCUTORY JUDGMENTS RENDERED ON MAY 20, 2014 BY THE HONOURABLE MR. JUSTICE MARK G. PEACOCK OF THE SUPERIOR COURT, DISTRICT OF MONTREAL (Articles 29 & 511 C.C.P. ) Clerk: Linda Côté Courtroom: RC.18 HEARING 16:23 : Commencement of the hearing. Identification of counsel. 16:23 : Submissions by Mtre Sidney Cutler. 16:37 : Submissions by Mtre Manuela Santos. 16:45 : Submissions by Mtre Valentin Molperceres. 16:49 : Reply by Mtre Cutler. 16:52 : Recess of the hearing. 17:13 : Resumption of the hearing. JUDGMENT RENDERED – see page 3 for reasons. 17:16 Conclusion of the hearing. Linda Côté Clerk JUDGMENT

[ 1 ] I am seized with a motion for leave to appeal of two interlocutory judgments rendered on May 20 th , 2014 by Justice Mark Peacock of the Superior Court, district of Montreal, in the context of a custody hearing. [ 2 ] Given that the hearing has been suspended until May 21 st , 2014 for the purpose of allowing the debate on the Motion for leave to appeal, I consider that the circumstances justify the abridgment of the delay for service of the Motion for leave to appeal of the two interlocutory judgments. [ 3 ] The first interlocutory judgment concerns a Motion for adjournement presented by the Mother which was dismissed by the trial judge who required the parents to proceed with the scheduled hearing. [ 4 ] The second interlocutory judgment concerns objections to three new witnesses not mentioned in the Common declaration or advised to opposing counsel. [ 5 ] The motion has to be decided under sections 29 and 511 of the CCP. [ 6 ] While both judgments appear to satisfy the criteria of

section 29 CCP , the applicant has failed to demonstrate that the pursuit of justice, within the meaning of

article 511 CCP, requires that leave be granted with respect to either judgments. [ 7 ] As stated by my colleague Justice Kasirer in Beaulne c.

Warner Chappel Music France [1] , the dismissal of a motion to adjourn is a matter of case management and the Court of appeal will rarely intervene in this type of decision [2] , given the discretionary power of the trial judge who has the duty to ensure the proper advancement of the trial process [3] . [ 8 ] In this case, the trial judge measured the consequences of the adjournement and ruled that it would be against the interest of the 13 year old child whose custody is at issue.

His decision to refuse the adjournement is well motivated and is not abusive under the circumstances. [ 9 ] He also ruled that the addition of previously unannounced witnesses, including an expert, would unduly disadvantage the father and daughter’s counsel, while there was no justification given by the mother for not declaring these witnesses sooner or foregoing the rules of the Civil code of procedure regarding the obligation to file a written report ahead of the expert’s testimony at the hearing. [ 10 ] The trial judge's decision to refuse the additional witnesses is the result of the exercise of his discretionary power in the context of the case management.

He properly motivated his decision and insisted on the need to ensure that the parties are heard, rather than face a postponement with the resulting negative consequences of uncertainty bearing on the child. This decision is not an abusive use of his discretionary power. [ 11 ] In light of the above, I am in the opinion that the ends of justice do not justify that leave to appeal be granted with respect to either judgments.

FOR THESE REASONS, THE UNDERSIGNED [ 12 ] ABRIDGES the delay for service of the Motion for leave to appeal. [ 13 ] DISMISSES the motion for leave to appeal without costs, in light of the nature of the case. GENEVIÈVE MARCOTTE, J.A.