2014 QCCA 1374, 2014 QCCA 1374

Droit de la famille — 141733 2014 QCCA 1374 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024474-140 ( 500-12-312313-129 ) MINUTES OF THE HEARING DATE: July 11, 2014 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. JACQUES A. LÉGER , J.A. MANON SAVARD, J.A. APPELLANT COUNSEL B Mtre Jacqueline Sanderson RESPONDENT COUNSEL C Mtre Pascale Nolin ROBINSON SHEPPARD SHAPIRO, SENCRL

Motion of the appellant to request an extension to file the notice of appeal and the non-publication of both the judgment in Superior Court and that of the decision to be rendered by the Court of Appeal ( Subsection 21 (4) of the Divorce Act and Articles 2 and 20 of the Code of Civil Procedure) Motion to dismiss the appeal from a judgment pronounced orally on May 2, 2014 (reasons transcripted on May 5, 2014) by the Honourable Mr.

Justice Paul Mayer of the Superior Court, District of Montreal (Art. 501 (2) of the Code of Civil Procedure) Clerk: Nadia Samy Courtroom : Pierre-Basile-Mignault HEARING 11:22 Commencement of hearing. 11:22 Submissions by Mtre Sanderson. 11:44 Submissions by Mtre Nolin. 12:05 Rebuttal by Mtre Sanderson. 12:06 Recess. 12:15 Resumption. 12:18 Judgment – see page 3. 12:22 End of hearing.

Clerk BY THE COURT JUDGMENT [ 1 ] C has moved to dismiss the inscription in appeal filed by B against a judgment of the Superior Court, District of Montreal (the Honourable Paul Mayer), rendered orally on May 2, 2014, which granted an application for divorce of the parties and issued various orders concerning the custody, access and support for the children of the marriage, the division of the family patrimony and the matrimonial regime, as well as spousal support and a provision for costs.

The judge filed a transcription of the judgment on May 5, 2014. [ 2 ] The motion to dismiss alleges that late filing amounts to an irregularity in the formation of the appeal. [ 3 ] Ms L. asks for special leave to appeal, de bene esse , pursuant to

article 523 C.C.P. and subsection 21(4) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd supp). Her burden is to offer an acceptable explanation for the lateness of the appeal and, further, that the grounds advanced in the inscription show a reasonable prospect for the appeal’s success.

*** [ 4 ] The inscription in appeal was filed by Ms. L. in the registry of the Court on June 3, 2014, outside the 30-day time limit, as calculated from the date of the oral judgment, as fixed by s. 21 of the Divorce Act [1] . [ 5 ] The appeal was filed late and was consequently improperly brought on June 3, 2014. [ 6 ] The inscription mistakenly records the date of the judgment as May 5, 2014 rather than May 2, 2014, the date on which it was rendered. *** [ 7 ] Should special leave be granted notwithstanding the lateness of the appeal? [ 8 ] Counsel for Ms. L. argues that the inscription was not late.

She candidly states, however, that she calculated the delay from May 5 rather then from the date of the oral judgment. Thus, lateness should be attributed to a lawyer’s error and not that of the client. [ 9 ] The Court is of the view that the error of counsel as to the proper calculation of the time limit within which an appeal must be brought constitutes sufficient grounds to excuse the tardiness in the circumstances. [ 10 ] The judgment of the Superior Court was plainly most carefully written. That said, Ms.

L. has satisfied us that an appeal, if authorized, would not be without a reasonable prospect of success. [ 11 ] The motion de bene esse for special leave should be granted and the case should be managed so that the appeal may proceed on the fast track. [ 12 ] Finally, Ms. L. has asked for an order for the non-publication of this judgment and that of the Superior Court. Mindful of the public character of proceedings before the courts, and considering articles 13 and 815.4 C.C.P., we are respectfully of the view that this application is to be dismissed.

The interest of justice would not be well served should an exception be made in this case on the basis of the privacy concerns – common to many families in different ways – raised by Ms. L.. The usual practice of publishing judgments with a view to protecting the privacy of parties shall be observed in the case of this judgment. Moreover, the petitioner has not demonstrated the basis upon which the Court could render an order concerning the non-publication of judgments already rendered by the Superior Court. We decline to make such an order in this case.

FOR THE AFOREMENTIONED REASONS, THE COURT: [ 13 ] DISMISSES the motion for non-publication; [ 14 ] GRANTS the motion to extend time for leave to appeal until the date of the present judgment; [ 15 ] DECLARES that the inscription in appeal filed on June 3, 2014, notwithstanding its tardiness, be considered sufficient to bring the appeal; [ 16 ] DECLARES the motion to dismiss to be without further object; [ 17 ] ORDERS that the appeal proceed on the fast-track roll; [ 18 ] PLACES the case on the role of November 27, 2014 for a 90 minute ( 45 minutes for each party) hearing; [ 19 ] ORDERS the appellant, after having served a copy upon the respondent, to file in the office of the Court, no later than September 5, 2014 , five copies of a written argument not exceeding 20 pages , of the exhibits that would normally have made up schedules I, II and III of his factum and of his authorities; [ 20 ] ORDERS the respondent, after having served a copy upon the appellant, to file in the office of the Court, no later than October 10, 2014 , five copies of a written argument not exceeding 20 pages , of his supplementary documents and of his authorities; [ 21 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12- point type, with no more than 12 characters per 2.5 cm, the use of the font ARIAL-12 being strongly recommended; [ 22 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 23 ] The whole, without costs given the nature of the dispute.

NICHOLAS KASIRER, J.A.

JACQUES A. LÉGER, J.A. MANON SAVARD, J.A.