2011 QCCA 1315, 2011 QCCA 1315

Droit de la famille — 112068 2011 QCCA 1315 COURT OF APPEAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-09-021815-113 ( 500-12-305741-104 ) MINUTES OF THE HEARING DATE: July 6, 2011 THE HONOURABLE MARIE-FRANCE BICH, J.A. PETITIONER ATTORNEY W. G. Mtre Allan Adel ARCHAMBAULT ADEL TRUDEL RESPONDENT ATTORNEY C. C. Mtre Andrew H. Heft

MOTION FOR RULING CONFIRMING SUSPENSION OF THE EFFECT OF A JUDGMENT OF THE SUPERIOR COURT UPON INSCRIPTION IN APPEAL AND DE BENE ESSE TO SHORTEN DELAYS Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:19 Commencement of the hearing. 9:20 Submission by Mtre Adel. 9:38 Submission by Mtre Heft. 9:49 Reply by Mtre Adel. 9:57 Suspension. 10:07 BY THE JUDGE. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] I am seized with a motion pursuant to articles 2, 20, 46 and 497 of the Code of Civil Procedure ( C.C.P. ) seeking the following conclusion: CONFIRM that the Inscription in Appeal has suspended the execution of the Judgment of the Superior Court rendered by Justice Mark G.

Peacock on June 30, 2011, including the order to appear before him on July 6, 2011 for a sentencing hearing. [ 2 ] The Respondent argues that I am not empowered to adjudicate upon this motion, especially in view of the fact that the judgment of Mr Justice Peacock could not be appealed from, and certainly not by way of an inscription, since it is not a final judgment, the Superior Court not having exhausted its jurisdiction under

article 54 C.C.P. [ 3 ] It may be that, considering

article 54 C.C.P. , the appeal from the judgment of Mr Justice Peacock is indeed irregular or the right to appeal said judgment non-existent. However, until the Court, pursuant to

article 501, para. (1) or (2), C.C.P. , decides that such is the case,

article 497 C.C.P. has the effect of suspending all conclusions of the judgment appealed from. As a judge sitting alone, I do not have the jurisdictional capacity to declare that an appeal is irregular or non-existent. See: Globe and Mail (The) c. Canada (Procureur general) , 2008 QCCA 2516 , J.E. 2009-133, para. 35 and ff.

[ 4 ] In addition, the Petitioner's motion seeks a declaratory conclusion upon which I cannot rule. As a judge sitting alone, I have no such declaratory power.

Neither am I seized with a motion to suspend provisional execution since none was ordered in the present case (supposing that it could have been). [ 5 ] Finally, the Petitioner's motion appears premature since the trial judge has not yet ruled upon Petitioner's request that the hearing on the sentence be postponed. [ 6 ] In view of the circumstances that were explained by counsel, I find that it would be inappropriate to rule on a verbal motion for leave to appeal; nor can I transform the inscription in appeal into a motion for leave to appeal. [ 7 ] FOR THESE REASONS , the motion is dismissed , without costs.

MARIE-FRANCE BICH, J.A.