2013 QCCA 259, 2013 QCCA 259

Droit de la famille — 13312 2013 QCCA 259 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023310-139 ( 500-12-261097-012 ) MINUTES OF THE HEARING DATE: February 13, 2013 THE HONOURABLE MARIE-FRANCE BICH, J.A. PETITIONER ATTORNEY A. M. Me Robert Teitelbaum TEITELBAUM LIBRATI RESPONDENT ATTORNEY AH. L. Me Linda Schachter DEVINE SCHACHTER POLAK MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT RENDERED ON JANUARY 24, 2013 BY THE HONOURABLE DANIEL W. PAYETTE

Clerk: Elena Captari Court Room: RC.18 HEARING 9h46: Commencement of the hearing. Identification of counsel. 9h46: Submissions by Me Teitelbaum. 9h55: Submissions by Me Schachter. 10h12: Reply by Me Teitelbaum. 10h17: Suspension of the hearing. 11h09: Resumption of the hearing. See judgment on page 3. 11h17: End of hearing.

Elena Captari Clerk JUDGMENT [ 1 ] The petitioner seeks leave to appeal the interlocutory judgment rendered by the Superior Court, on January 24, 2013, which dealt with a variety of issues between the parties, and, in particular, the postponement of the trial that was to be held on January 28, 29 and 30, 2013.

The conclusions of said judgment are as follows : [40] FOR THESE REASONS, THE COURT : [41] GIVES ACT of Madam's acceptance that Monsieur be granted the custody of Y and Z and her confirmation that their custody is not in issue; [42] GRANTS Monsieur custody of Y and Z; [43] ALLOWS Me Robert Teitelbaum to appear on behalf of Ms M. in view of the orders rendered below; [44] POSTPONES the hearing of motions 145, 162 and 169, peremptorily to May 13, 14, 15, 2013, in room 2.01; [45] ORDERS that should Me Teitelbaum's medical condition not allow him to represent Madam on these dates, Madam appear personally or constitute a new attorney in accordance with the Code of Civil Procedure ; [46] Except on a urgent basis of the nature of a safeguard order, PROHIBITS the parties from producing any other document or procedure into the court record or conduct or pursue any further examination except for : • updates of documents already produced;

• documents issued since June 2012 pertaining to the children's special expenses; • undertaking no 4 by Madam; [47] RENEWS Petras J.'s June 29, 2012 order until May 15; [48] By consent of the parties, REJECTS their respective request for provision for costs contained in Monsieur's motion no 161 and Madam's motion for postponement; [49] THE WHOLE without costs. [ 2 ] The petitioner's motion for leave to appeal states : 6. That aspect of the judgment for which permission is being sought to appeal relates specifically to the restrictive conditions imposed by the Honourable Mr.

Justice Payette on the Appellant when he granted the postponement of the hearing originally scheduled on January 27 th , and 28 th , 2013 which was rescheduled to May 13 th to 15 th , 2013. [ 3 ] According the conclusions of her motion, the petitioner requests that the Court : GRANT to her the permission to appeal the judgment of the Honourable Mr. Justice Payette on a “fast track” basis such that if successful, the Appellant can proceed to complete its examination of the Respondent and obtain all of the proof necessary so as to expeditiously proceed to trial on the scheduled dates.

SUSPEND provisional execution of the judgment rendered by the Honourable Mr. Justice Payette. [ 4 ] Taking for granted that such judgment can be appealed under art. 29 C.C.P. (which is not certain), [1] I am of the view that leave to appeal should not be granted, for the matter relates to the efficient management of a case set to be heard by the Superior Court and falls within the ambit of the discretionary powers granted to judges under art. 4.1 and 4.2 C.C.P. [ 5 ] The judge of the Superior Court gave detailed reasons for the restrictions set out in his judgment.

These reasons, which grew out of a concern for the endless warfare that the parties have been waging against each other since their separation, are entirely convincing. The petitioner does not establish that she will suffer any prejudice from the restrictions thus imposed upon both parties. The judgment simply seeks to ensure the application of the principles of efficiency and proportionality set out in art. 4.1 and 4.2 C.C.P. The parties, and, in particular, the petitioner, are not deprived from exercising their right to a full defence and they will be able to present their evidence at trial.

The trial judge will then deal with any difficulty that may arise in this regard and, needless to say, may vary the orders contained in the judgment of Mr. Justice Payette. [ 6 ] In paragraph 13 of her motion, the petitioner also states that : 13. Furthermore, although it was not included in his written decision, Appellant is advised that in open Court, the Honourable Mr.

Justice Payette expressed that he would not even permit subpoenas to be issued by the Appellant for the trial. [ 7 ] It is to be noted that, even if such a restriction was contemplated by the judge during the course of the hearing, it does not appear in the reasons or the conclusions of his judgment. Subpoenas can certainly be issued in view of the trial. [ 8 ] Another remark is in order. In Ontario Teachers' Pension Plan Board v. BCE inc. , [2] my colleague Hilton, J.A. wrote : [17] Although not dispositive, another factor weighs against leave being granted at this stage of the proceedings.

If leave were granted, the inevitable effect would be to delay the commencement of the trial, for which the daily rate of interest running is in the hundreds of thousands of dollars. [18] It is one thing, as both counsel suggest, that the Court order an expedited hearing of any appeal I might authorize. It is quite another, however, to establish a realistic timetable for facta to be filed, a date for hearing to be fixed that allows the members of a specially constituted panel adequate time to prepare for the hearing, and have a reasoned judgment rendered, all before January 13, 2013.

To that extent, and without it being the fault of either party, a hearing of the proposed appeal has a degree of unreality to it from a practical point of view. [ 9 ] These observations are entirely relevant to the present case, where a “fast track” appeal is also suggested by the petitioner. This suggestion, however, is not realistic and the consequence of granting leave to appeal would likely be to postpone the trial set out to begin next May. In the circumstances described by Mr.

Justice Payette, this is not advisable and would indeed be detrimental to the interests of both parties. [ 10 ] At the hearing of the motion, counsel for petitioner suggested, however, that leave be granted and the continuation of the proceedings before the Superior Court ordered. He would then be able to examine the respondent, once, which is all that he requires in order to assess the latter's revenues, assets, expenses and lifestyle. I understand from this comment that what counsel implies is that the appeal would then become moot and never need to be heard, and that trial would begin, as scheduled, on May 13.

While counsel must be commended for his candour, I believe that his suggestion reveals the purely tactical nature of the motion for leave to appeal and is not compatible with the interest of justice, as its only purpose would be to instrumentalise the appeal process and bypass the judgment of the

Superior Court without having to actually debate the issues in appeal. [ 11 ] In conclusion, the pursuit of justice, within the meaning of

article 511 C.C.P. , requires that leave not be granted. [ 12 ] FOR THESE REASONS , the motion is DISMISSED , with costs. MARIE-FRANCE BICH, J.A.