2012 QCCA 1862, 2012 QCCA 1862

Droit de la famille — 122904 2012 QCCA 1862 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022993-125 ( 500-12-314618-129 ) MINUTES OF THE HEARING DATE: October 15, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY E. K. Mtre François Gottlieb RESPONDENT ATTORNEY I. KR. Mtre Robert Teitelbaum TEITELBAUM LIBRATI

MOTION FOR LEAVE TO APPEAL FROM AN INTERLOCUTORY SAFEGUARD ORDER RENDERED ON SEPTEMBER 13, 2012, BY THE HON. MARIE GAUDREAU OF THE SUPERIOR COURT DISTRICT OF MONTREAL AND TO SUSPEND EXECUTION PENDING APPEAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:35 Commencement of the hearing. Comments by Mtre Teitelbaum. Comments by Mtre Gottlieb. Suspension. 9:37 Resumption of the hearing. Exchange between the judge and counsel. 9:45 Submission by Mtre Gottlieb on his motion for leave to appeal. 9:58 Submission by Mtre Teitelbaum. 10:02 Reply by Mtre Gottlieb. 10:04 Suspension. 10:12 Resumption of the hearing.

BY THE JUDGE. Judgment – See page 3. 10:17 Conclusion of the hearing. Annick Nguyen Clerk JUDGMENT

[ 1 ] E. K. seeks leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal (the Honourable Marie Gaudreau), rendered on September 13, 2012, in which a safeguard order was issued bearing upon the custody of a child of the marriage, responsibility for expenses for the family residence, and alimentary support including a provision for costs. His wife, I. Kr., who filed a motion to institute divorce proceedings against the petitioner on August 12, 2012, requested the safeguard order. [ 2 ] Mr.

K. only ask for leave to appeal in respect of three of the orders issued by the judge of the Superior Court: firstly, that he pay all expenses connected to the family residence, with that responsibility applying retroactively to the date of service of the proceedings; secondly, that he pay the respondent $3,000 per month of support, again retroactively to the date of service of the proceedings; and, thirdly, that he pay an amount of $4,000 to the respondent’s advocate for October 1, 2012, to be characterized at a later date. [ 3 ] The judge directed that the safeguard order will expire today: October 15, 2012. *** [ 4 ] Mr.

K. argues that the judge erred in fact and law in ordering him to pay a total of more than $6,000 per month, in addition to the provision for costs, which greatly exceeds his earning capacity and other disposable resources. He says that the judge erred in finding that he had always paid the expenses associated with the family residence. The judge also allegedly failed to take into account declared income and other resources of the respondent in fixing responsibility for expenses of the residence and the provision for costs. [ 5 ] Mr.

K. states that he is prepared to offer instead $800 per month as spousal support and that he would pay hypothecary and insurance payments on the family residence. [ 6 ] He also asks that provisional execution of the impugned orders be suspended during the appeal. [ 7 ] As a preliminary matter, both parties submitted to me for consideration affidavits that post-dated the judgment of the Superior Court.

Because these materials were not part of the record in first instance, I decline to consider them in these reasons. *** [ 8 ] As is often the case for a safeguard order in family matters to be adjudicated on an urgent basis, the evidence was presented by way of detailed affidavits from both parties. The tenor of the affidavits reflects a plainly acrimonious dispute. The wife alleges that the husband has been abusive towards her. The husband alleges that the wife is an alcoholic, is emotionally unstable and has a poor or inappropriate relationship with the children.

Their presentations of one another’s financial circumstances are radically different. The judge had the difficult task of deciding the safeguard order in a situation of urgency not uncommon when there is a breakdown of a marriage with children. [ 9 ] In the circumstances, the judge ordered a temporary solution for one month based on her appreciation of the status quo as gleaned from the

summary evidence before her. She considered in particular a sworn statement from the wife that detailed how household expenses were paid for by the husband in the past. The judge also made an allusion to the “nouveau ‘revenu’ déclaré par le père”. The whole of the record left the judge with the sense that the financial order she made was manageable in the short term for Mr.

K.. [ 10 ] Her temporary order based on the status quo is consonant with general principles applicable to safeguard orders issued in family matters. [1] The design of the order was to allow, on an urgent basis, for the on-going management of family affairs during proceedings. [ 11 ] The jurisprudence of this Court is plain that it will only intervene to disturb a safeguard order in exceptional circumstances.

Because of the advantage that a motions judge has in hearing the safeguard order first hand, appellate courts should show deference in respect of the exercise of motion judge’s discretionary powers to respond to the urgent problem of meeting on-going family needs during the proceedings. [2] [ 12 ] Mr. K. argues that the judge seriously misapprehended the extent of his resources such that she imposed on him payments that he cannot meet. While they are contradictory in many respects, the materials before the judge did, however, provide a basis for her order as a reflection of the status quo .

I take her choice to render a 30-day order as a cautionary measure. Her judgment specifically allows for further evidence to be gathered from both sides before the safeguard order is renewed. To my mind, these are plain signs that she exercised her discretion appropriately. Mr. K. alleges a flagrant error that he has not substantiated to my satisfaction. He has shown no basis that would allow the Court to disturb this order. [ 13 ] The ends of justice do not therefore require leave to be granted. [ 14 ] In the circumstances, Mr. K.’s petition to suspend execution of the order is without object.

FOR THESE REASONS , the undersigned: [ 15 ] DISMISSES the motion; [ 16 ] THE WHOLE , without costs given the nature of the dispute. NICHOLAS KASIRER, J.A.