2023 QCCA 42, 2023 QCCA 42

Droit de la famille — 2341 2023 QCCA 42 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030327-225 ( 540-12-025343-229 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 C.C.P .). DATE: January 13, 2023 THE HONOURABLE CHRISTINE BAUDOUIN, J.A. APPLICANT COUNSEL S. U.

Mtre MURIEL LIBRATI ( Teitelbaum Librati ) Absent RESPONDENT COUNSEL SA. M. Mtre GOLSHAD DARROUDI Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of a proceeding on December 6, 2022 by the Honourable Mr. Justice Daniel Urbas of the Superior Court , District of Laval , and to stay the provisional execution (Articles 31 and 357 C.C.P. ). Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING Continuation of the hearing held on January 9, 2023. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 3.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 C.C.P .). [ 1 ] The Applicant seeks leave to appeal from the judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Daniel Urbas), rendered on December 6, 2022, which established a number of interim measures in the context of the parties’ divorce, namely, parenting time, child support, and a general order prohibiting any travel of the child outside Canada. The Applicant contests all three of those measures, and should leave be granted, asks that their provisional execution be stayed pending appeal. [ 2 ] To obtain leave, the Applicant must show that the judgment determines part of the dispute or causes him irremediable injury within the meaning of

article 31 para. 2 C.C.P.

Applications for leave to appeal interim orders in family law matters rarely satisfy either of those criteria, which are applied restrictively given the temporary and reviewable nature of the decision, as well as the broad discretion conferred upon the judge of first instance. [1] Absent exceptional circumstances – such as an apparent denial of justice or unreasonable exercise of discretion [2] – leave is generally refused. [ 3 ] The Applicant raises three palpable and overriding errors of fact in support of his leave application, none of which convince me that leave should be granted. [ 4 ] The first alleged error pertains to parenting time.

The Applicant contends that the judge disregarded the status quo that existed between the parties and also failed to consider an agreement (the “Agreement”) signed by them in January 2019, following their first of two separations, whereby the Applicant had full custody of the child and the Respondent renounced her parental authority and declared that she did not want “to exercise the custody or the access rights regarding the minor child”. [ 5 ] I disagree with the Applicant’s contention.

Rather, the judgment appears to restore the status quo that purportedly existed up until a few months prior to the hearing before Justice Urbas . The explanations provided by the Applicant to substantiate the irreparable injury that he or the child would suffer as a result of the parenting time so ordered are more a reflection of his disagreement with the facts as alleged by the Respondent and of his insistence on the content of the Agreement, but do not allow me to conclude that there are exceptional circumstances warranting leave, especially at such a preliminary stage in the proceedings.

Justice Urbas’ decision does not “set aside the Agreement between the parties” (as the Applicant states); it merely decides parenting time on an interim basis and subject to review, based on the parties’ respective allegations and the limited evidence before him.

This decision was made necessary in light of the persisting conflict between the parties, but also because of the Respondent’s allegation that the Applicant had recently been taking control of all access to the child. [ 6 ] The second alleged error concerns child support and, more particularly, the interim determination by Justice Urbas that the Applicant’s annual gross income is $150,000, rather than the approximately $60,000 he claimed in his proceedings.

In so doing, the Applicant claims that the judge failed to consider the provincial and federal notices of assessment he submitted before him. [ 7 ] Given the circumstances, and even if his reasons could have been more substantiated, I find that the judge did not exercise his discretion unreasonably. The transcripts of the hearing show that he had before him evidence of unusually large payments made by the Applicant, which were in keeping with the Respondent’s allegations that the Applicant’s income may in reality be more than he discloses.

However, the judge stressed, and rightly so, that the determination of the Applicant’s income was purely

summary and that it could be revised. Suffice to say here that the evidence that will be available once both parties have complied with their respective subpoenas duces tecum , which, according to the judge, include in large part financial information under

article 596.1 C.C.Q. , and this may possibly open the door to a modification of the child support order. Under those circumstances, the Applicant has failed to demonstrate an irremediable injury within the meaning of

article 31 para. 2 C.C.P. [ 8 ] Thirdly, the Applicant argues that the judge ruled ultra petita when he took notice of the Applicant’s undertaking to remit the child’s passport to the Respondent’s lawyer to be held in trust, and when he ordered that neither party travel with the child outside Canada. According to the Applicant, “neither parties were asking for permission for travel with the child, nor made a request for the child’s passport”. [ 9 ] The Applicant is mistaken.

The Applicant’s response to the divorce proceedings clearly and expressly sought an interim order authorizing him to travel with the child outside of Canada without the Respondent’s consent. The Respondent subsequently amended her divorce application to ask for an interim order prohibiting the parties from travelling outside of Quebec without the permission of the Superior Court. I fail to see where the trial judge ruled beyond what was asked, especially considering that the ultra petita rule must be applied with more flexibility in family matters. [3]

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the Application for leave to appeal from a judgment rendered in the course of a proceeding and to stay the provisional execution, without costs. CHRISTINE BAUDOUIN, J.A.