2017 QCCA 1630, 2017 QCCA 1630

Droit de la famille — 172483 2017 QCCA 1630 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026978-171 (500-12-335437-178) MINUTES OF THE HEARING DATE: October 20, 2017 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL MI. E. Mtre ANDREW H. HEFT (Heft droit de la famille inc.) RESPONDENT COUNSEL m. P. Mtre RANDI KORZINSTONE ( Azran & associés av ocats inc.) DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceedings on August 1, 2017 by the Honourable Guylène Beaugé of the Superior Court, District of Montreal. (Article 31 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 11:37 Continuation of the hearing of October 18, 2017. The parties’ attendance is not required this morning. BY THE JUDGE: Judgment – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Mi. E. seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honorable Madam Justice Guylène Beaugé), rendered on August 1, 2017, which granted a safeguard order presented by M.

P. in connection with divorce proceedings between the parties and, in the same judgment, dismissed a motion for a safeguard order brought by Mr E. [ 2 ] Both parties had asked for authorization to sell the family residence. The judge ordered the parties to mandate, together, a broker to evaluate the home and list it for sale and, if they failed to agree, authorized the respondent to mandate a broker alone.

In the event of a sale, the judge authorized the respondent to keep 50% of the net proceeds, after discharge of the hypothecs and other expenses, and to deposit the other 50% in a lawyer’s trust account for distribution on final judgment. [ 3 ] In support of the application for leave, the petitioner submits that the safeguard order decides part of the dispute between the parties by authorizing, wrongly in law, the partition of a major asset of the family patrimony and distribution of the proceeds therefrom prior to the dissolution of the marriage. [ 4 ] The parties informed me at the hearing that since the time the motion for leave was filed, the house has been sold at an amount higher than both of their own estimates.

Pursuant to the terms of the safeguard order, the respondent insists that 50% of the net proceeds be paid to her outright at closing, and that the other 50% be deposited in a trust account, in keeping with paragraph [34] of the judgment a quo . [ 5 ] The petitioner continues to argue that an immediate distribution to the respondent of 50% of the net proceeds would contravene the rules on the family patrimony and presses his request for leave. *** [ 6 ] Leave to appeal is governed by

article 31, paragraph 2 C.C.P. In order to obtain leave, the petitioner must show that the judgment decides a part of the dispute or causes an irremediable prejudice within the meaning of

article 31 C.C.P., and that granting leave would be in the interests of justice as well as in keeping with the principle of proportionality. [1] It is often said that granting leave from a safeguard order rendered in like circumstances is rare given, in particular, its discretionary character. Typically, safeguard orders are deserving of deference on appeal.

Leave requires extenuating circumstances. [2] [ 7 ] At first blush, it does appear that the safeguard order decides part of the dispute by assigning 50% of the net proceeds from the sale of property that forms part of the family patrimony to the respondent prior to the calculation of her entitlement pursuant to articles 414 et seq . C.C.Q.. By doing so, it might be said that the judge assumed, prior to full proof on the merits, that the respondent’s net entitlement in the family patrimony extends to at least one half of the net value of the former family residence.

Respectfully stated, and without deciding the matter, this appears to overstep the proper purpose of a safeguard order, which is to maintain the status quo between the parties as the case proceeds to trial. Viewed from the imperfect vantage point of a judge in chambers, this is a prima facie weakness in the judgment. [ 8 ] But even if the petitioner has established that the judgment decides in part the matter in dispute or causes him the requisite harm under

article 31 C.C.P., is it in the interests of justice to grant leave? [ 9 ] In order to answer that question, some context is necessary. First, both parties sought authorization to sell the house and to distribute some or all of the net proceeds at the closing of the sale. It is disingenuous for the petitioner to complain that the sale of this

asset of the family patrimony and the immediate distribution of some of the net proceeds was inappropriate when that was, at least in part, what he sought by his own safeguard order. Indeed, in the conclusions to his safeguard order the petitioner wrote “[…] MAY IT PLEASE THE COURT TO […] TAKE ACTE of the Defendant’s [ i.e . Mr E.’s] offer to have half of the net proceeds from the sale of the former family residence divided equally between the parties upon the closing of the sale”. This was, of course, not a consent to the judge’s order.

But if the amount and modalities of the petitioner’s proposed distribution differ, it is plain that he was not opposed to an immediate distribution of some of the funds. [ 10 ] Relevant as well to the measure as to whether granting leave is in the interests of justice are the terms of a previous safeguard order, rendered by Morrison, J. on June 27, 2017. In that judgment, the respondent was granted custody of the five children of the marriage and awarded exclusive right to use the family residence and the furniture therein until the safeguard order expired on September 29, 2017.

The petitioner was to pay real property taxes, hypothecary charges and upkeep of the house, which, by his counsel’s own account, he did not do. He was to provide a provision for costs of $10,000 which he also did not do. The fact that he now seeks to have the respondent incur new legal fees on appeal, and that he has failed to meet his obligations in respect of the housing of the respondent and the children, suggest strongly that it is not in the interests of justice to grant leave here. [ 11 ] The house is now sold; the respondent will have to live elsewhere. The petitioner lives in Israel.

The judge plainly had in mind providing the respondent with resources that would allow her to house the children while the case proceeds to trial.

Given the Respondent’s poor track record in meeting his alimentary obligations, the judge’s solution, while unorthodox, is not unreasonable in the circumstances. [ 12 ] Furthermore, there is nothing to suggest that the respondent would not be in a position to repay any balance owed to the petitioner, should such a balance exist, when the final calculation of the net value of the family patrimony is made. [ 13 ] While I recognize – again so said respectfully – that the safeguard order suffers from an apparent weakness, leave to appeal should be refused.

Given these singular circumstances, granting leave would not be in the interests of justice and would involve costs, on both sides, that are hard to justify. FOR THE FOREGOING REASONS , the undersigned: [ 14 ] DISMISSES the application for leave to appeal, without legal costs given the nature of the dispute. nicholas kasirer, J.A.