2011 QCCA 2004, 2011 QCCA 2004

Droit de la famille — 113398 2011 QCCA 2004 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021398-110 ( 500-12-299933-097 ) MINUTES OF THE HEARING DATE: OCTOBER 27, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) APPELLANT(

S) ATTORNEY(

S) D. P. Mtre Jay Turner OIKNINE & ASSOCIATES RESPONDENT(

S) ATTORNEY(

S) M. S. Mtre Sylvie Schirm ATTORNEY(

S) On appeal from a judgment rendered on January 7, 2011 by the Honourable Mr. Justice Joël A. Silcoff of the Superior Court, District of Montreal. NATURE OF THE APPEAL : DIVORCE Clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING 9 h 32 Beginning of the hearing. 9 h 32 Argument of Mtre Turner. 10 h 07 Argument of Mtre Schirm. 10 h 22 Reply by Mtre Turner. 10 h 33 Response by Mtre Schirm. 10 h 34 Suspension of the hearing. 10 h 43 Resumption of the hearing. Judgment rendered – see page 3. 10 h 45 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] It is only in exceptional circumstances that the Court of Appeal will intervene with regards to interlocutory judgments, especially in the case of a motion for Interim Provisional Measures. [ 2 ] Contrary to Appellant's argument, there was urgency as there was no outstanding order requiring payment of alimentary support to Respondent for her own benefit and that of their two children. Even though Appellant had made some payments, they were made on a voluntary basis, at his sole discretion, which meant that they could be reduced unilaterally. Moreover, Respondent had serious unmet financial needs.

In these circumstances, the trial judge did not commit a palpable and overriding error in concluding that there was urgency, especially as there was a foreseeable delay before provisional measures were to be decided. [ 3 ] The parties led a fairly opulent lifestyle before separating, which leads us to conclude that the amount of 10,000 $ per month ordered by the trial judge is fair and reasonable, at least at this stage (Appellant was offering 7,000 $ per month).

It should be noted that the judge who will hear the case on its merits will have the ability to retroactively correct the figures, should that be necessary. [ 4 ] As to the status quo , in light of the arbitrary nature of the payments made by Appellant, we cannot conclude that the parties had entered into a real agreement or arrangement, as contemplated by

section 15.2 (4)

c) Divorce Act . [ 5 ] There is no ambiguity as to the extent and scope of the expertise ordered by the trial judge, a forensic evaluation of Appellant's assets and income derived there from (see p. 14 and 207, lines 16-18, Appellant's Factum). Moreover, this a matter of case management, and the Court of Appeal generally does not interfere with such decisions. [ 6 ] FOR THESE REASONS , the Court: [ 7 ] DISMISSES the appeal, with costs. FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC)