2016 QCCA 1604, 2016 QCCA 1604

Droit de la famille — 162465 2016 QCCA 1604 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026357-160 (500-12-326763-152) MINUTES OF THE HEARING DATE: October 5, 2016 THE HONOURABLE ROBERT M. MAINVILLE, J.A. PETITIONER COUNSEL S. M. Mtre JAY TURNER Mtre DANIELLE oiknine ( Oiknine & Associé

s) RESPONDENT COUNSEL C. MC. Mtre gérald stotland Mtre victoria cohene ( Lavery, De Billy s.e.n.c.r.l. ) DESCRIPTION: Application for leave to appeal from a judgment rendered on August 17, 2016 by the Honourable Lucie Fournier of the Superior Court, District of Montreal. (Articles 31 and 357 C.C.P. ) Respondent’s Application for a suretyship. (Article 364 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC-18

HEARING 9:30 Commencement of the hearing. Identification of counsel. Exchanges between the Judge and the parties. 9:39 BY THE JUDGE: Judgment – See page 3. 9:41 Recess. 9:43 Resumption of the hearing. 9:45 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] On October 9, 2015, the Honourable Paul Mayer of the Superior Court ratified a consent to accessory measures signed by the parties. Mr.

M. subsequently filed in the Superior Court an Amended application to vary the terms of a consent to judgement on accessory measures, and alternatively, for annulment of the consent and revocation of judgment (the Amended Application ). [ 2 ] In a judgment dated August 17, 2016, the Honourable Lucie Fournier of the Superior Court decided that the reasons given in the Amended Application were not sufficient to revoke the judgment of October 9, 2015. [ 3 ] Mr. M. has since filed with the Court a notice of appeal as of right with respect to the August 17, 2016 judgment.

He also seeks leave to appeal that judgment de bene esse under

article 31 of the Code of civil procedure ( C.C.P. ). [ 4 ] Ms. Mc. challenges the application for leave to appeal and also seeks suretyship in the event leave is granted. [ 5 ] At the beginning of the hearing on these applications, the undersigned judge enquired as to Ms. Mc.’s position concerning the appeal as of right filed by Mr. M.. Counsel for Ms. Mc. responded that leave was required but should be denied in this case. In his view, the August 17, 2016 judgment was rendered in the course of a proceeding and is therefore subject to

article 31 C.C.P . [ 6 ] The corollary of this position is that the appeal filed as of right by Mr. M. should be dismissed. Counsel for Ms. Mc. informed the Court that he intends to file such an application once leave to appeal has been dealt with. [ 7 ] As set out in the decision of this Court in Savoie v. Thériault-Martel , [1] when an application for leave to appeal de bene esse is submitted to a judge and a notice of appeal has been simultaneously filed with respect to the same judgment, the judge should normally refer the matter to a panel of the Court.

This is moreover the case where the respondent challenges the appeal as of right, as in these proceedings. This principle has been consistently applied. [2] [ 8 ] This is so since under

article 365 C.P.C. only a panel of the Court may dismiss an appeal on the ground that the right to appeal is non-existent. Moreover, even if a judge dismisses a motion for leave to appeal de bene esse , that decision would not be binding on the panel of the Court if the appeal as of right was found by that panel not to be available. [3] [ 9 ] It is therefore appropriate to order Ms. Mc. to file now her application to dismiss Mr. M.’s appeal as of right and to refer all motions to a panel of the Court. [ 10 ] FOR THESE REASONS, THE UNDERSIGNED JUDGE: [ 11 ] ORDERS Ms. Mc. to file her application to dismiss Mr.

M.’s appeal on or before October 17, 2016. [ 12 ] FURTHER ORDERS that the application to dismiss be made following articles 59 and 60 of the Civil Practice Regulation (Court of Appeal) and include a notice of presentation specifying that it will be heard on November 21, 2016 at 9:30 a.m. before the panel of the Court sitting in the Pierre-Basile-Mignault courtroom at the Montreal facilities of the Court.

[ 13 ] REFERS the application for leave to appeal de bene esse and the application for a suretyship to the panel of the Court sitting in the Pierre-Basile-Mignault courtroom on November 21, 2016 , to be heard at the same time as the application to dismiss. [ 14 ] ORDERS the parties to file with the Court, on or before October 17, 2016, four additional copies of the application for leave to appeal de bene esse and of the application for a suretyship. [ 15 ] THE WHOLE without legal costs. ROBERT M. MAINVILLE, J.A.