2013 QCCA 1574, 2013 QCCA 1574

Droit de la famille — 132493 2013 QCCA 1574 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023862-139 (500-12-314115-126) MINUTES OF THE HEARING DATE: September 13, 2013 THE HONOURABLE MADAM JUSTICE MARIE-FRANCE BICH, J.A. PETITIONER ATTORNEY J. W. Mtre Muriel Librati TEITELBAUM LIBRATI RESPONDENT ATTORNEY A. L. Mtre Andre Heft ME ANDREW H.

HEFT, AVOCATS- ATTORNEYS PETITIONER'S MOTION FOR LEAVE TO APPEAL REGARDING AN INTERLOCUTORY JUDGMENT (PROVISIONAL MEASURES JUDGMENT) (Art. 29, 494 et 511 C.c.p. ) & MOTION TO SUSPEND PROVISIONAL EXECUTION OF A JUDGMENT RELATING TO SPOUSAL AND CHILD SUPPORT AND PROVISION FOR COSTS (Art. 550 C.c.p. & Art. 21(1) of the Divorce Act )

Clerk: Asma Berrak Court Room: RC.18 HEARING 10 h 23: Beginning of the hearing. 10 h 23: Submission by Mtre Librati. 10 h 51: Suspension of the hearing. 11 h 16: Resumption of the hearing. 11 h 16: Submission by Mtre Heft. 11 h 37: Reply by Mtre Librati. 11 h 41: Reply by Mtre Heft. 11 h 44: End of arguments. 11 h 45: Suspension of the hearing. 14 h 07: Resumption of the hearing. 14 h 07: Judgment- see page. 14 h 14: Conclusion of the hearing. Asma Berrak Clerk JUDGMENT Motion for leave to appeal [ 1 ] The parties are in the midst of what appears to be a very acrimonious divorce.

The proceedings were instituted in June 2012 and there are, as of this date, more than 115 entries in the Superior Court's record (some relating to contempt of court proceedings). [ 2 ] After a four-day trial and the filing of written arguments, the Superior Court (the Honourable Madam Justice Carole Therrien), on August 19, 2013, ruled on the following issues, at the provisional stage: - Child support to be paid by the petitioner based on the custody arrangement currently in place; - Spousal support to be paid by the petitioner; - Respondent and children's right to reside in the family residence and expenses thereof; - Provision for costs to be paid by the petitioner to the respondent.

[ 3 ] The petitioner seeks leave to appeal this judgment. According to Droit de la famille – 121718 , 2012 QCCA 1229 , [2012] R.J.Q. 1232, and Droit de la famille – 123147 , 2012 QCCA 1966 , J.E. 2012-2168, his motion for leave to appeal is governed by art. 29 and 511 C.C.P. which are applicable by virtue of s. 21, para. (6), of the Divorce Act . [ 4 ] In Droit de la famille – 123147 , 2009 QCCA 1888 , the Court stated that: [29] First, appellate courts show a high degree of deference to provisional alimentary orders.

As noted by this Court in Droit de la famille – 092415 , "une ordonnance alimentaire provisoire ne sera pas infirmée en appel à moins que des circonstances très exceptionnelles et urgentes (injustice manifeste, erreur grossière et déterminante) ne transparaissent du dossier". [Reference omitted] It is the Court's view that Mr.

B. has failed to show such an error in the judgment of the Superior Court. [ 5 ] See also: Droit de la famille — 10961 , 2010 QCCA 872 , 2010EXP-1620, and, by analogy, Droit de la famille – 131908 , 2013 QCCA 1206 , J.E. 2013-1297. [ 6 ] Considering the exacting standard of appellate review of interim or provisional judgments in family matters, leave to appeal will be granted only in exceptional circumstances, when the grounds for appeal are exceptionally serious, and most notably when there is a flagrant error, in fact or in law, in the judgment of first instance, which is of such a nature as to cause an irreparable prejudice to the petitioner (which requirement is consistent with art. 29, first paragraph, sub-para. 1 and 2, C.C.P. ) See: Droit de la famille – 131480 , 2013 QCCA 986 , 2013EXP-2005; Droit de la famille – 123583 , 2012 QCCA 2251 , 2013EXP-138, J.E. 2013-73; Droit de la famille – 08143 , 2008 QCCA 172 , J.E. 2008-367. [ 7 ] In the present case, the petitioner failed to demonstrate the existence of such exceptional circumstances, nor does he establish that the judgment of Therrien J. is, on its face, flawed to the point of commanding a review of the file by this Court. [ 8 ] The grounds of appeal rest essentially on the allegation of the financial incapacity of the petitioner to pay support to his wife and children in the amount established by Therrien J. and to fulfill his obligations in this regard.

It is but a plea in favour of a complete reappraisal of all the issues that were dealt with by the judge. All grounds of appeal are of a purely factual nature and challenge the manner in which the judge canvassed the evidence and assessed the credibility of the parties and the witnesses (whom she heard for four days).

The Court is even less likely to intervene in such a case and the appeal appears to be devoid of any reasonable chance of success. [ 9 ] In her judgment, Therrien J. explained, in detail, the peculiarities of the petitioner's financial situation, which is – to say the least – unclear (the judge appropriately used the word “obscure” in para. [28] of her judgment). She did not believe the petitioner when he tried to demonstrate that he earns no more than $45,000 per year and she convincingly explained why, noting for instance the expansive lifestyle enjoyed by the parties before the divorce proceedings.

All in all, she concluded that the petitioner, in fact, has the financial means to comply with her orders. [ 10 ] All this being considered, I am of the view that the petitioner's motion does not fulfill the conditions set out in art. 29 and 511 C.C.P. , as interpreted and applied by the Court. * * [ 11 ] In another respect, considering the nature of the dispute between the parties and their mounting legal fees, I would respectfully suggest that they would be wise to cease fighting over provisional measures and try to move on to the merits of the case as diligently as possible.

A settlement conference might also offer an alternate, non-confrontational forum for the parties to discuss and hopefully solve their differences, and may be worth considering. * * [ 12 ] FOR THESE REASONS, the motion for leave to appeal is DISMISSED , without costs. Motion for suspension of the provisional execution [ 13 ] The motion for leave to appeal the judgment of Therrien J. having been dismissed, the motion for suspension of the provisional execution of said judgment has become moot, and is therefore DISMISSED , without costs. MARIE-FRANCE BICH, J.A.