2021 QCCA 50, 2021 QCCA 50

Droit de la famille — 2120 2021 QCCA 50 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028798-205 ( 540-12-021445-176 ) MINUTES OF HEARING DATE: January 14, 2021 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. MARTIN VAUCLAIR, J.A. SOPHIE LAVALLÉE, J.A. APPLICANT COUNSEL H. E. Mtre Katherine-Anne MacLeod By videoconference RESPONDENT COUNSEL Ha. B. Mtre Kadiatou Desautels By videoconference On appeal from a judgment rendered on December 20, 2019 by the Honourable David R. Collier of the Superior Court , District of Laval . NATURE OF THE APPEAL: Family - Provisional measures.

Application for leave to appeal after the expiry of the time limit (Art.363 C.C.P .) . Clerk at the hearing : Mélahelle Sicotte Courtroom: Pierre-Basile-Mignault HEARING

11:26 Commencement of the hearing.

Identification of counsel. 11:30 Submissions by Mtre MacLeod. 11:32 Precision by the Court. 11:35 Discussion between the Court and Mtre MacLeod regarding the judgment in the first instance. 11:40 Mtre MacLeod resumes her submissions. 11:45 Question by the Court and response of Mtre MacLeod regarding the manifest and decisive error. 11:47 Submissions by Mtre Desautels. 11:49 Question by the Court and response by Mtre Desautels. 11:50 Discussion between the Court and Mtre Desautels regarding the judgment in the first instance. 11:55 Verbal request: Mtre Desautels aks for a postponement of the hearing. 12:05 The Court asks the parties if there is a possibility for agreeing on all the modalities in this case.

Response by Mtre Desautels. 12:06 Question by the Court and response by Mtre Desautels regarding the approach that could be considered in Superior Court. 12:10 The Court asks the position of Me MacLeod regarding the request for a postponement. 12:11 Recess of the hearing. 12:27 Resumption of the hearing. BY THE COURT: The request for postponement is dismissed. 12:31 Mtre Desautels resumes her submissions regarding the question of general interest. 12:33 Reply by Mtre MacLeod. Recess of the hearing. 12:42 Resumption of the hearing. BY THE COURT : Judgment – see page 4.

The Court invites the parties to discuss of an agreement. 12:48 Conclusion of the hearing. Mélahelle Sicotte, Clerk at the hearing JUDGMENT [ 1 ] The appellant initiated divorce proceedings in April 2017, which were declared ready for trial in July 2018. [ 2 ] However, on the morning of the hearing before the trial judge on November 21, 2019, the parties requested more time to partition the partnership of acquests and the family patrimony . In paragraph 4 of his judgment, the trial judge wrote that “[i]n the meantime, the parties are asking for intermediate, provisional orders from the Court”.

The trial judge ruled on these latter questions on December 20, 2019. [1] As provisional measures, [2] the trial judge granted sole custody of the child to the respondent and access rights to the appellant, ordered the latter to pay child support, including arrears, as well as spousal support, and authorized the respondent to travel to [Country A] to visit her family with the child.

On January 16, 2020, the appellant appealed this judgment as of right. [ 3 ] It is well established that a judgment on provisional measures in divorce proceedings does not constitute a final judgment under art. 30, para. 1 C.C.P. , as it “contemplates the continuation of the proceedings”. [3] Accordingly, the appellant was not entitled to an appeal as of right and leave to appeal should have been obtained by an application to that effect within 30 days of the judgment under appeal pursuant to art. 360 C.C.P.

For that reason, the appeal is improperly before the Court. [ 4 ] The parties were notified in advance to address the Court on the regularity of the appeal and its competence to hear the appeal. On January 6, 2021, in response, the appellant filed an application for leave to appeal after the expiry of the time limit.

Such application must be dismissed given the fact that more than six months have elapsed since the judgment (art. 363 C.C.P. ) [4] , even taking into account the suspension of delays on March 15, 2020, which ended on September 1, 2020. [5] [ 5 ] Furthermore, the Court considered granting leave nunc pro tunc . [6] After hearing the parties, however, the conditions to remedy the procedural irregularity of the appeal have not been met in the present case. As the Court wrote in Droit de la famille — 17428 : [7]

[51] Generally speaking, the Court will consider granting leave nunc pro tunc if an appellant: (1) has clearly demonstrated an intention to appeal within the prescribed time limits; (2) the opposing party has not invoked the irregularity of the appeal and will suffer no prejudice by such leave being granted; (3) the appeal is not on its face dilatory or frivolous, and raises questions of general interest. [8] [ 6 ] Although the first two conditions are satisfied in the present case, the third one is not.

The appellant has not raised any error of law, despite alleging that he is doing so, and simply contests the judge’s assessment of the evidence and of the facts of the case. Moreover, the appellant calls into question numerous times the honesty and good faith of the respondent, thereby challenging the trial judge’s credibility assessment . Without the benefit of the complete transcript of the evidence in first instance, the Court would be in a difficult position to review the trial judge’s findings of fact.

Finally, provisional measures are by nature temporary and discretionary, as they are only to remain in force until the decision on the merits of the case and can be reviewed. [9] The grounds raised in the appellant’s memorandum could be heard and ruled upon by the judge seized of the merits of the case. [10] [ 7 ] Leave to appeal from judgments on provisional measures in divorce proceedings are thus only granted in exceptional circumstances. This is not the case here. [ 8 ] Recourse to art. 453 C.C.P. would certainly have led to a more efficient resolution of this matter.

It is now up to the parties to work together with the aim of amicably settling their divorce and the ancillary measures, in the best interest of their child. FOR THESE REASONS, THE COURT : [ 9 ] DISMISSES the appeal, which was improperly initiated; [ 10 ] DISMISSES the application for leave to appeal after the expiry of the time limit; [ 11 ] Without costs, given the nature of the file. MANON SAVARD, C.J.Q. MARTIN VAUCLAIR, J.A. SOPHIE LAVALLÉE, J.A.