2015 QCCA 145, 2015 QCCA 145

Droit de la famille — 1554 2015 QCCA 145 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024987-158 (505-04-023750-144) MINUTES OF THE HEARING DATE: January 27, 2015 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL M. N. Mtre MURIEL LIBRATI ( Teitelbaum Librati ) RESPONDENT COUNSEL L. L. Mtre RENÉ ST-LÉGER ( Centre legal ) DESCRIPTION: Appellant’s motion for leave to appeal regarding an interlocutory judgment rendered on December 18, 2015 by the Honourable Justice Eva Petras of the Superior Court in the District of Longueuil. (Art. 29, 494 and 511 C.C.P. ) Clerk: Asma Berrak Courtroom: RC.18

HEARING 9:37 Commencement of the hearing. Identification of counsel. Submission by Mtre St-Léger. 9:39 Submission by Mtre Librati. 9:52 Submission by Mtre St-Léger. 9:56 Suspension. 10:08 Resumption. Judgment-see page 3. 10:13 Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] I have for adjudication a motion for leave to appeal the judgment of the Superior Court, District of Longueuil (the Honourable Justice Eva Petras) of December 18, 2014.

The judgment granted Respondent’s “Urgent Motion to obtain custody of a minor child prior to filing a motion to institute Divorce Proceedings” and granted custody of the parties’ minor child to the Respondent. While reserving the Applicant’s rights to seek access, the judgment also confirms that the child is “residing and domiciled in Quebec, and that the Quebec Courts have sole jurisdiction” regarding custody and access. [ 2 ] This judgment was granted on 2 ½ hours notice by e-mail when the Applicant was in Toronto and this, according to the Applicant, to Respondent’s knowledge.

Thus, unsurprisingly, the judgment was rendered ex parte . The Applicant alleges that the Respondent misled the Court on this and other grounds such as the already pending divorce proceedings wherein the couple was in mediation and had agreed that the Applicant could take the child to Toronto. In his motion, the Respondent accused the Applicant of seeking to take the child to Ontario without consent. [ 3 ] The allegations of each party toward the other tell an unfortunate tale of matrimonial discord. [ 4 ] The Applicant seeks leave to appeal before me under

Article 29 and 511 C.C.P . Whether this judgment falls within the ambit of

Article 29 C.C.P ., need not to be decided because I am of the opinion that the interest of justice does not require that leave be granted for two reasons. [ 5 ] Firstly, the appeal, if granted, would proceed on the basis of the record in the Superior Court. Since the position of the Applicant requires that the allegations of her motion be introduced in evidence, this Court would be unable to adjudicate in a useful manner. The application for leave is supported by the attorney’s affidavit which counsel explains was necessitated by the urgency of the matter.

While exceptionally new evidence can be adduced in appeal, this case is wholly inappropriate for such a manner of proceeding. The appeal would become in essence a fact driven trial on a motion for revocation of judgment. A motion in revocation of the ex parte judgment in Superior Court would have been appropriate had the delays stipulated in

Article 484 C.C.P. not passed. [ 6 ] Secondly, I am of the view that the judgment is governed inter alia by

Article 813.3 C.C.P . This is one of the articles invoked by the Respondent in his motion in first instance. Though the judge does not state any time period during which her ruling is in force, it is clear from the nature and the allegations of the Respondent’s motion and the judgment that this was in the judge’s mind: “an order to safeguard the rights of a party in an urgent case...” as provided in

Article 813.3, second paragraph. Accordingly, as a matter of law and irrespective of its own terms, the judgment lapsed thirty days after its issuance, that is on January 19, 2015. Counsel for the Respondent informs me that he agrees with this analysis. Therefore, the interest of justice does not require that leave be granted because the judgment has lapsed and no longer has effect in law. [ 7 ] There is a pending divorce file which predates the file in which the judgment was issued and it is ordinarily in that divorce file where motions for interim custody would appropriately be brought. [ 8 ] FOR THESE REASONS, THE UNDERSIGNED :

[ 9 ] DISMISSES the motion for leave to appeal saving the Applicant’s recourses and without costs, given the nature of the litigation. mark schrager , J.A.