2021 QCCA 140, 2021 QCCA 140

Droit de la famille — 2181 2021 QCCA 140 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029250-206 ( 500-12-297241-089 ) MINUTES OF HEARING DATE: January 22, 2021 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANT COUNSEL A. C. Mtre Muriel Librati ( Teitelbaum Librati ) By videoconference RESPONDENT COUNSEL R. T.

Mtre Paola Tiranardi ( Bardagi Tiranardi ) By videoconference DESCRIPTION: Application for leave to appeal bene esse from a judgment rendered in the course of the proceeding on November 18, 2020 by the Honourable Christiane Alary of the Superior Court , District of Montréal (Art. 31 C.C.P. ) . Application to be relieved from the default of notifying the proceedings to the defendant’s attorney within the required delays (Art. 31 et 358 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:11 Commencement of the hearing. Identification of counsel.

Submissions by Mtre Librati. 10:28 Submissions by Mtre Tiranardi. 10:35 Reply by Mtre Librati.

10:37 BY THE JUDGE: Judgment – see page 3. 10:38 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] I am tasked with the adjudication of an application for leave de bene esse of a judgment rendered in the course of a proceeding being the judgment rendered on November 18, 2020 by the Superior Court, District of Montreal (the Honourable Christiane Alary).

The judgment dismisses Applicant’s motion in first instance seeking production of a number of documents of a financial nature from the Respondent in a divorce case with the stated purpose of establishing his real income. [ 2 ] The judgment is equivalent to one maintaining an objection to evidence. Thus, leave is required pursuant to

article 31 C.C.P. which can be granted, inter alia , where the judgment causes a prejudice not susceptible of remedy by the final judgment. The attorney for Applicant confirms to me that the mention of “ de bene esse ” in the title of her proceeding is an error. [ 3 ] Applicant is convinced that Respondent earns undeclared income and alleges the following: [58] That Plaintiff has knowledge of Defendant’s lifestyle and it is simply not possible that Defendant can sustain such a lifestyle on the revenues he is declaring.

In fact, Defendant’s income dramatically dropped from $305,000 to $145,000 when he incorporated his company in [Company A], (which was in 2013) which begs the question as to why such a drastic decrease in income? [59] That Defendant must have other sources of revenues in order to sustain his lifestyle, and it is necessary for Plaintiff to obtain a full and complete picture of Defendant’s financial information in order to be able to request to impute income onto Defendant for the purpose of child support calculations.

This includes both his personal and company financial information. [ 4 ] In refusing the motion as a “fishing expedition” the judge finds the aforementioned allegations vague as to the existence of undeclared income. Moreover, the judge also states that Respondent is a broker and earns his income from financial institutions.

She mentions this as another reason to doubt the existence of undeclared income. [ 5 ] Should Applicant acquire information which would substantiate seeking additional precise financial evidence, the possibility of further discovery up to and including trial still exists. [1] As such, any prejudice caused by the judgment can be remedied. [ 6 ] The allegations in paragraphs 58 and 59 of the re-amended motion in first instance are not so much fact as belief so that it is difficult to find error in the judgment which would be subject to appellate intervention.

Moreover, I observe that while attorney for Applicant challenges the financial information provided, her questions are based on suspicion and speculation, which would not justify this Court intervening in the exercise of the motion judge’s discretion. As such, the proper administration of justice, a criterion applicable to the granting of leave pursuant to

article 18 C.C.P. , does not warrant the granting of leave to appeal irrespective of whether any prejudice is or is not liable to be remedied by judgment on the merits in first instance. [2] [ 7 ] The other motion before me (i.e. to extend delays, given the failure to notify Respondent’s attorney of the motion within the legal delays) need not be discussed in the circumstances and will also be dismissed.

FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the application for leave for appeal de bene esse of a judgment rendered in the course of a proceeding; [ 9 ] DISMISSES the application to be relieved from the default of notifying the proceedings to Defendant’s attorney within the required delays; [ 10 ] THE WHOLE without legal costs given the nature of the case. MARK SCHRAGER, J.A.