2014 QCCA 1236, 2014 QCCA 1236

Droit de la famille — 141448 2014 QCCA 1236 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024116-139 (500-12-3000511-098) MINUTES OF THE HEARING DATE: JUNE 13, 2014 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. JACQUES A. LEGER, J.A. MANON SAVARD, J.A. APPELLANT ATTORNEY O. P. Mtre Antonella Petrolito RESPONDENT ATTORNEY D. PA. Mtre Marin Guzun GUZUN & ASSOCIES-AVOCATS / LAWYERS On appeal from a judgment rendered on November 14, 2013 by the Honourable Justice Brian Riordan of the Superior Court, District of Montreal

NATURE OF THE APPEAL : Accessory measures – Safeguard order Court Clerk: Julie Boudreault Gravel Courtroom: Pierre-Basile-Mignault HEARING 9 : 31 Beginning of the hearing. Identification of attorneys. 9 : 32 Submissions by Mtre Petrolito. Comments by the Court. Mtre Petrolito continuous. 9 : 39 Submissions by Mtre Guzun. Comments by the Court. Mtre Guzun continuous. 9 : 53 Recess. Resumption. 10 : 05 Judgment rendered - see page 3. 10 : 06 Conclusion of the hearing.

Julie Boudreault Gravel Court Clerk BY THE COURT JUDGMENT [ 1 ] The parties proceeded on November 14, 2013 before the motion judge on the respondent’s "motion in modification of the accessory measures and safeguard order" served on the appellant on November 11, 2014.

At the time, each party had filed detailed affidavits, which contained conflicting evidence. [ 2 ] It appears from the transcript of the hearing before the motion judge that he was only seized with the safeguard order the respondent requested. [ 3 ] Therefore, the appellant is correct when arguing that the motion judge erred in law by rendering a final judgment on November 14, 2013, thereby not confining his order for a limited period of time. A safeguard order is, by its nature, an interim order.

Article 813.3 of the Code of Civil Procedure states that such an order should be limited to a 30-day period, unless the parties extend it by mutual agreement or, in case of disagreement, the court extends it.

Safeguard orders are based on fragmentary evidence and are issued to maintain the situation of the parties in place during the period they require to complete the file so as to proceed on provisional measures or those of corollary relief before a judge who will hear them and evaluate their credibility. [ 4 ] Except for this error, the appellant failed to demonstrate the necessity for the Court to intervene with respect to the other conclusions of the judge’s order, especially in the context of an interim order.

A vast discretionary power is bestowed upon the judge of the Superior Court to tailor every interim and safeguard order to the specific situation of the parties. Therefore, our Court will not

intervene in a matter of respecting a provisional order, unless it is demonstrated that it is patently unreasonable, unjust or flagrantly wrong [1] , which is not the case in this file. [ 5 ] The proper remedy is therefore to return the file to the Superior Court so that the attorneys can complete the file and then proceed to a hearing on the provisional measures or those of corollary relief.

FOR THESE REASONS, THE COURT: [ 6 ] ALLOWS the appeal in part and ADDS the following paragraph [18-a] to the judgment appealed from: [18-a] This safeguard order remains in force until July 10, 2014; [ 7 ] RETURNS the file to the superior Court; [ 8 ] WITHOUT COSTS , given the nature of the appeal. FRANÇOIS DOYON, J.A. JACQUES A. LEGER, J.A. MANON SAVARD, J.A.