2013 QCCA 2043, 2013 QCCA 2043

Droit de la famille — 133380 2013 QCCA 2043 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023988-132 (500-12-315799-126) MINUTES OF THE HEARING DATE: November 20, 2013 THE HONOURABLE MADAM JUSTICE MARIE-FRANCE BICH, J.A. PETITIONER A TTORNEY C. P. Mtre Micheline Parizeau RESPONDENT ATTORNEY N. L. Mtre Daniel Gallagher DOWNS, GALLAGHER, DIONNE MOTION FOR LEAVE TO APPEAL A JUDGMENT ON PROVISIONAL MEASURES (Art. 29, 494 and 511 Code of Civil Procedure ) Clerk: Asma Berrak Court Room: RC.18

HEARING 14:00: Beginning of the hearing. 14:01: Submission by Mtre Parizeau. 14:53: Discussion between the judge and the parties. 14:54: Submission by Mtre Gallagher. 15:23: Reply by Mtre Parizeau. 15:31: Suspension of the hearing. 15:47: Resumption of the hearing. 15:47: Discussion between the judge and the parties. 15:48: Suspension of the hearing. 16:45: Resumption of the hearing. 16:45: Judgment - see page 3. 16:52: Conclusion of the hearing.

Asma Berrak Clerk JUGEMENT [ 1 ] On October 8, 2013, after a four day trial, the Superior Court, district of Montreal (the honourable Madam Justice Dionysia Zerbisias), rendered judgment on the motions for provisional measures presented by the parties in the course of their divorce proceedings. [ 2 ] The petitioner seeks leave to appeal this judgment with respect to the following issues: calculation of the parties’ annual income for support purposes, right to spousal support, amount of child support and provision for costs.

She also seeks suspension of the provisional execution of conclusions 81, 84 and 87 of the judgment. * * [ 3 ] In Droit de la famille — 132493 , 2013 QCCA 1574 , 2013EXP-3120, I recently wrote that: [3] The petitioner seeks leave to appeal this judgment.

According to Droit de la famille – 121718 , 2012 QCCA 1229 , [2012] R.J.Q. 1232, and Droit de la famille – 123147 , 2012 QCCA 1966 , J.E. 2012-2168, his motion for leave to appeal is governed by art. 29 and 511 C.C.P. which are applicable by virtue of s. 21, para. (6), of the Divorce Act . [ 4 ] In Droit de la famille – 123147 , 2009 QCCA 1888 , the Court stated that: [29] First, appellate courts show a high degree of deference to provisional alimentary orders.

As noted by this Court in Droit de la famille – 092415 , "une ordonnance alimentaire provisoire ne sera pas infirmée en appel à moins que des circonstances très exceptionnelles et urgentes (injustice manifeste, erreur grossière et déterminante) ne transparaissent du dossier". [Reference omitted] It is the Court's view that Mr.

B. has failed to show such an error in the judgment of the Superior Court. [ 5 ] See also: Droit de la famille — 10961 , 2010 QCCA 872 , 2010EXP-1620, and, by analogy, Droit de la famille – 131908 , 2013 QCCA 1206 , J.E. 2013-1297. [ 6 ] Considering the exacting standard of appellate review of interim or provisional judgments in family matters, leave to appeal will be granted only in exceptional circumstances, when the grounds for appeal are exceptionally serious, and most notably when there is a flagrant error, in fact or in law, in the judgment of first instance, which is of such a nature as to cause an irreparable prejudice to the petitioner (which requirement is consistent with art. 29, first paragraph, sub-para. 1 and 2, C.C.P. ) See: Droit de la famille – 131480 , 2013 QCCA 986 , 2013EXP-2005; Droit de la famille – 123583 , 2012 QCCA 2251 , 2013EXP-138, J.E. 2013-73; Droit de la famille – 08143 , 2008 QCCA 172 , J.E. 2008-367. [ 7 ] In the present case, the petitioner failed to demonstrate the existence of such exceptional circumstances, nor does he establish

that the judgment of Therrien J. is, on its face, flawed to the point of commanding a review of the file by this Court. [ 8 ] The grounds of appeal rest essentially on the allegation of the financial incapacity of the petitioner to pay support to his wife and children in the amount established by Therrien J. and to fulfill his obligations in this regard. It is but a plea in favour of a complete reappraisal of all the issues that were dealt with by the judge.

All grounds of appeal are of a purely factual nature and challenge the manner in which the judge canvassed the evidence and assessed the credibility of the parties and the witnesses (whom she heard for four days). The Court is even less likely to intervene in such a case and the appeal appears to be devoid of any reasonable chance of success. [ 9 ] In her judgment, Therrien J. explained, in detail, the peculiarities of the petitioner's financial situation, which is – to say the least – unclear (the judge appropriately used the word “obscure” in para. [28] of her judgment).

She did not believe the petitioner when he tried to demonstrate that he earns no more than $45,000 per year and she convincingly explained why, noting for instance the expansive lifestyle enjoyed by the parties before the divorce proceedings.

All in all, she concluded that the petitioner, in fact, has the financial means to comply with her orders. [4] The facts and issues at stake in the present case are similar and they command the same conclusion, i.e. dismissal of the motion for leave to appeal. * * [5] Zerbisias J. concluded that both parties “have flexible notions of the 'truth’” (para. 9) and that “neither hesitates to embellish it positively or negatively, under oath, when it serves their interests” ( ibid. ).

She then went on to examine the allegations of the parties and all of the evidence in a thorough manner, carefully assessing the credibility of each party and that of the witnesses. [6] The petitioner does not show that the judgment suffers from the kind of error that would warrant further examination of the file by the Court, considering the exacting standard of appellate review, especially in cases such as this one, where credibility is at the heart of the matter. [7] In particular, the fact that the petitioner is an employee, and is not self-employed, was considered by the judge.

She decided that, despite this status (which does not tell the whole of his financial situation), he earned undeclared income, which she then calculated according to the evidence. The judge also considered the fact that the respondent is able to work, since she is “young, healthy, clearly has skills, the ability to work, and holds 2 certifications” (para. 33). She granted spousal support on a provisional basis and it is clear from her judgment that should the petitioner persist in not making bona fide efforts to find gainful work, consequences may ensue.

It is also clear that she found that temporary support was nevertheless necessary. [8] Nothing in these conclusions appears to be unreasonable, flagrantly flawed or grossly unjust, on the contrary, nor has it been shown that they will cause irreparable harm to the petitioner. [9] Some of the judge’s findings might be certainly be debatable, as they rest on contradictory evidence. The petitioner also questions her decision to order retroactive spousal support, as her reasons to do so may not be entirely convincing.

These, however, are not issues that can justify an appeal. [ 10 ] As a matter of fact, the petitioner would have the Court reassess the whole of the evidence put before Zerbisias J. and retry all of the issues that she decided. The Court is not likely to intervene in such a case.

I am indeed of the view that the appeal has no reasonable chance of success and that, consequently, leave should not be granted. [ 11 ] It must also be pointed out that all orders set out in the judgment, including all orders of a monetary nature, are reviewable upon a significant change of circumstances during the proceedings, that they do not bind the judge which will hear the merits of the case and that they can be retroactively reconsidered at that stage.

The findings of fact contained in the judgment, which were made at an early stage of the proceedings, can also be reversed upon fresh evidence and are not binding either. [ 12 ] For these reasons, I shall dismiss the motion for leave to appeal. * * [ 13 ] One last comment. In her judgment, Zerbisias J. wrote that : [7] The present case has all the makings of a saga.

In less than a year the parties have appeared 9 times before the Court seeking safeguard and management orders. [ 14 ] As of November 18, 2013, the motion for divorce having been filed on November 16, 2013, there were already 99 entries in the Superior Court’s record. A saga it is, indeed, and I would respectfully but strongly suggest that the parties, in view of their undoubtedly mounting legal fees and mutual exasperation, cease fighting over provisional measures and move on to the merits of the case as diligently as possible.

A settlement conference under the guidance of a judge of the Superior Court or a private mediator might also be worth considering and might help the parties settle their differences, at least partly, to the benefit of their child and in their own interest. * * [ 15 ] FOR THESE REASONS , the motion for leave to appeal is DISMISSED , without costs. MARIE-FRANCE BICH, J.A.