2014 QCCA 1692, 2014 QCCA 1692

Droit de la famille — 142281 2014 QCCA 1692 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024607-145 ( 500-12-321933-149 ) MINUTES OF THE HEARING DATE: September 16, 2014 THE HONOURABLE nicholas kasirer , J.A. PETITIONER COUNSEL L. V. Mtre linda hammerschmid ( Hammerschmid & associé

s) RESPONDENT(

S) COUNSEL C. A. Mtre caroline duval ( Caroline Duval Avocate ) DESCRIPTION: Petitioner’s motion for permission to appeal from a judgment rendered on July 8, 2014, by the Honourable Justice Louis J. Gouin, of the Superior Court, District of Montreal. Clerk: Asma Berrak Courtroom: RC.18

HEARING 10 h 45 Commencement of the hearing. Identification of counsel. Submission by Mtre Hammerschmid. 11 h 03 Submission by Mtre Duval. 11 h 13 Reply by Mtre Hammerschmid. 11 h 30 Suspension of hearing. 11 h 36 Resumption of hearing. Judgment-see page 3. 11 h 43 Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] L.

V. seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Louis Gouin), rendered on July 8, 2014, that decided on interim spousal support and related issues in respect of the action for divorce that is currently before the Superior Court. [ 2 ] The judge heard motions from both parties and plainly recorded that he would decide only what he characterized as urgent demands.

He rendered judgment on the minutes of the hearing. [ 3 ] Specifically, the petitioner seeks leave only in respect of one conclusion of the interim judgment dealing with the judge’s refusal of her request for full financial disclosure by the respondent at this stage of the proceedings. *** [ 4 ] The respondent made an admission of his ability to pay the proposed amount of the interim order of support. He relied on

section 28 of the Rules of Practice of the Superior Court of Québec in Family Matters , RSQ, c. C-25, a. 47 , which provides that a party who acknowledges being able to pay the amounts claimed by the other party “is not required to provide a detailed financial statement, unless the Judge decides otherwise/n’a pas à fournir les détails de sa situation financière, à moins que le juge n’en décide autrement”. [ 5 ] The judge did not order full disclosure, citing

section 28 as authority for his decision. He did order that the respondent provide the petitioner with information relating to “des biens du régime matrimonial familial des parties et décrits au paragraphe 8 de la Requête de Monsieur”. *** [ 6 ] The petitioner argues that the judge erred in law in relying on

section 28 of the Rules to justify his decision not to order full disclosure. She contends that the jurisprudence of the Supreme Court and the Court of Appeal has uniformly adopted the view that full and honest disclosure of financial information is the rule. The petitioner cites a recent judgment of this Court in Droit de la famille— 131908 (S.S. c. L.SH.) , 2013 QCCA 1206 , para. [33] in which my colleague Bich, J.A. wrote, in part, that “an ability to pay does not preclude a disclosure order” as support for her motion for leave. Petitioner also argues that the judge’s ruling on the matter amounts to a final one that cannot be reviewed later in the proceedings. ***

[ 7 ] Leave may be granted pursuant to subs. 21(4) of the Divorce Act , based on the applicable rules governing interlocutory judgments set forth notably in articles 29 and 511 C.C.P. [ 8 ] Leave for appeal should be refused in this case. [ 9 ] The oft-stated rule that the Court of Appeal only intervenes sparingly at the interim stage of proceedings bears repeating. Judges of first instance deciding interim matters enjoy a wide discretionary authority to which appellate courts generally defer, in the absence of a manifest error of law or a plain and overriding error of fact.

The interim judgment is understood to be a temporary one, subject to revision as circumstances change, and it is understood that the judge who hears the matter first hand is best placed to decide on the issue in dispute: see the useful discussion of the relevant cases by author Michel Tétrault, Droit de la famille : La procédure, la preuve et la déontologie , vol. 4 (Cowansville: Éd. Yvon Blais, 2010) esp. 108-9. [ 10 ] In the instant case, the judge made clear that he was addressing himself, at the interim stage, only to urgent matters.

He was not deciding on disclosure for all stages of the file and, with respect for the contrary view, to suggest otherwise is a misreading of his opinion and a misapprehension of the interim nature of the judgment for which leave is sought. [ 11 ] I am of the respectful view that the petitioner has cited Droit de la famille—131908 out of its proper context. In that case, Bich, J.A. observed specifically at para. [33] of her reasons that

section 28 of the Rules can relieve a debtor of a support obligation from making full disclosure but, that in the circumstances of that case, no admission of ability to pay had been made so that the rule in s. 28 did not apply. [ 12 ] Moreover, I see no incompatibility between, on the one hand, the general policy of promoting full disclosure and, on the other hand, the possibility of exempting a debtor from disclosure where he or she admits an ability to pay.

In many instances, the mechanism in s. 28 is conducive to quick and efficient settlement of the matter, especially in the heat of debate on interim measures where time is of the essence. In addition, the legislature had built in a safeguard into s. 28 by providing the judge with the power to order otherwise. [ 13 ] In the present case, the presiding judge, ruling on an interim basis in the context of urgency, declined to order disclosure once the ability to pay had been acknowledged. His decision reflects the exercise of a discretionary power that merits deference on appeal.

No plausible arguments have been raised that would allow that decision to be disturbed by the Court. FOR THE FOREGOING REASONS , the undersigned: [ 14 ] DISMISSES the motion for leave, without costs given the nature of the dispute. nicholas kasirer , J.A.