2019 QCCA 1399, 2019 QCCA 1399

Droit de la famille — 191715 2019 QCCA 1399 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028456-192 ( 500-12-342942-194 ) MINUTES OF HEARING DATE: August 15, 2019 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANT COUNSEL K. El. Mtre Raphael Levy ( Levy Tsotsis avocats ) RESPONDENT COUNSEL N. E.

Mtre Jeffry Awwad ( Goldwater, Dubé inc. ) DESCRIPTION: Amended application for leave to appeal from a judgment rendered in the course of the proceeding on June 18, 2019 (Revised transcription of the written grounds of the Judgment on July 2, 2019) by the Honourable Claude Dallaire of the Superior Court, District of Montreal . Clerk at the hearing : Stephane Robinson Courtroom: RC-18 HEARING

9:30 Continuation of the hearing held on Tuesday August 13, 2019. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 3. Stephane Robinson, Clerk at the hearing JUDGMENT [ 1 ] The Petitioner seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Claude Dallaire), rendered on June 18, 2019. The judgment ordered the Petitioner to pay to the Respondent child support, spousal support and a provision for costs, on an interim basis.

The judgment is in effect until September 16, 2019. [ 2 ] The hearing took place on Monday, June 10, 2019 and was continued on Friday, June 14, 2019. On Friday, June 7, 2019, the Petitioner presented a motion to dismiss the divorce proceedings in Town A, invoking the existence of divorce proceedings in [Country A].

It appears that the Respondent instituted divorce proceedings in [Country A] on December 1, 2018, before she instituted divorce proceedings in Town A on April 15, 2019. [ 3 ] The judge considered that the question of jurisdiction was not ready to be heard, considering the short notice given to the Respondent.

She also considered that she had jurisdiction to issue a safeguard order, to address the urgent need for child support, spousal support and the provision for costs. [ 4 ] The Petitioner submits that the judge erred in failing to rule on the issue of the jurisdiction of the Court before issuing the safeguard order. He also claims that she erred in her assessment of his financial capacity, with the result that she ordered him to pay amounts that he does not have the capacity to pay. [ 5 ] The motion for leave to appeal is based on

Article 31 of the Code of Civil Procedure . The judgment may be appealed if I am of the view that it determines part of the dispute or causes irremediable injury to a party.

As a general matter, leave to appeal from a safeguard order in family matters is rarely granted, given its discretionary character and the high degree of deference accorded by the Court to decisions of this nature. [1] [ 6 ] In the present matter, leave to appeal should be denied. [ 7 ] The jurisdiction issue is important and it is complicated – the parties will need to make proof of the nature of the proceedings in [Country A] and the reasons for the absence of corollary measures in [Country A]. Normally, the jurisdiction issue would be decided first.

Here, the judge decided that, because of the urgency of hearing the Respondent’s motion for a safeguard order and the late filing of the Petitioner’s motion to dismiss, she would hear the Respondent’s motion without first deciding the Petitioner’s motion. It appears that she had prima facie jurisdiction over the matter under

Section 3 or 4 of the Divorce Act (the parties are or were married and the Petitioner is domiciled in Quebec) and that

Article 3138 C.C.Q. allowed her to order provisional measures even if she had no jurisdiction over the merits of the dispute. [ 8 ] The judgment does not determine part of the dispute. It does not decide the jurisdiction issue. On the issues of child support, spousal support and the provision for costs, it is a temporary judgment that can be modified by subsequent judgments. [ 9 ] Further, the Petitioner did not demonstrate that these temporary orders cause him an irremediable injury. [ 10 ] Finally, the interest of justice and the principle of proportionality require that leave be dismissed.

The parties need to proceed quickly on Petitioner’s motion to dismiss in the Superior Court, rather than proceeding with an appeal that will be limited to the issue of whether the judge could issue a safeguard order without first ruling on the Petitioner’s motion to dismiss. THEREFORE, THE UNDERSIGNED :

[ 11 ] DISMISSES the amended application for leave to appeal, without judicial costs, given the nature of the matter. STEPHEN W. HAMILTON, J.A.