2016 QCCA 304, 2016 QCCA 304

Droit de la famille — 16336 2016 QCCA 304 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025891-169 (500-12-315901-128) MINUTES OF THE HEARING DATE : February 11, 2016 THE HONOURABLE MARK SCHRAGER , J.A. PETITIONER ATTORNEY C. A. Mtre ELIZABETH JACQUART (Elizabeth Jacquart avocate) RESPONDENT ATTORNEY S. R. Mtre LINDA SCHACHTER (Devine Schachter Polak) DESCRIPTION : Motion for leave to appeal a judgment rendered on January 22, 2016 by the Honourable Judge Louisa Arcand of the Superior Court, district of Montreal and for suspension of proceedings. (Articles 355, 357 et 358 C .p.c. ) Clerk : Mihary Andrianaivo Courtroom : RC-18

HEARING 16:03 Beginning of the hearing. Submissions by Mtre Jacquart. 16:11 Submissions by Mtre Schachter. 16:21 Rebuttal by Mtre Jacquart. 16:25 Recess. 16:34 Resumption of the hearing BY THE JUDGE: Judgment – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Appellant seeks leave to appeal the interlocutory judgment pronounced during the trial on January 22, 2016 by the Superior Court, District of Montreal (the Honourable Louisa Arcand). The motion for leave to appeal was served today.

The judgment is set forth in the minutes of the proceedings on the fourth day of a divorce trial and reads as follows: Le Tribunal n’entendra pas ce témoin. Le Tribunal ne voit pas la pertinence de ce témoignage, ayant suffisamment de preuve sur le sujet sur lequel le témoin viendrait témoigner. Le Tribunal demande à Me Jacquart de libérer le témoin. [ 2 ] In effect, the judge maintained an objection to any evidence that the witness, Mrs. Ch.

H., could offer, without hearing the witness. [ 3 ] Appellant contends that the testimony was pertinent to establish monies received by Respondent which should be considered in the division of the family patrimony. As well, it is submitted that the evidence would be brief (15 minutes) and relevant to the assessment of Respondent’s credibility. [ 4 ]

Article 31 C .C.P. foresees the possibility of an appeal with leave of such a judgment. In principle leave should be sought without delay. In the present instance, the judgment was rendered over two weeks ago and argument in the case is fixed for tomorrow morning, February 12, 2016. Appellant’s counsel explains that Appellant was out of town from the end of the hearing until this week when counsel was instructed to seek leave to appeal. Although the explanation is thin, I will give the benefit of the doubt since the importance of the matter may only have been appreciated upon preparation for argument. [ 5 ] The matter is covered by

article 31 C .C.P. However, does the interest of justice (as provided in article 9(3) C.C.P.) require that leave be granted? Again, the motion materials are thin but it appears that the witness was disclosed and the evidence, could have an effect on the ultimate outcome of the trial notwithstanding the judge’s comment. It is also clear that without hearing the evidence, the relevance cannot be fully appreciated. [ 6 ] Respondent requested that if I grant leave, the proceedings in first instance not be suspended so that argument can proceed tomorrow, as scheduled.

Article 31 C.C.P. provides that in such event Justice Arcand cannot render her judgment but she can commence her advisement pending this Court’s decision on the appeal. I understand from both attorneys that this has been a highly contested case. The interest of justice and its efficient administration dictate that the arguments proceed tomorrow notwithstanding that leave will be granted. [ 7 ] Also, in the interest of justice is that the appeal proceed on an accelerated basis.

FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] GRANTS the motion for leave to appeal; [ 9 ] GRANTS leave to appeal the interlocutory judgment of the Superior Court, District of Montreal (the Honourable Louisa Arcand) pronounced during the trial on January 22, 2016; [ 10 ] DECLARES that the proceedings in first instance are not suspended pending the outcome of the appeal; [ 11 ] ORDERS that the appeal proceed on an accelerated basis by memorandum of 10 pages for each party to be produced by Appellant on or before March 4, 2016 and by Respondent on or before March 25, 2016; [ 12 ] Each party shall have 30 minutes for oral argument; [ 13 ] INSTRUCTS counsel to communicate with the clerk of the Court to fix the first available date for hearing the appeal. [ 14 ] Legal costs to follow suit.

MARK SCHRAGER , J.A.