2014 QCCA 495, 2014 QCCA 495

Droit de la famille — 14506 2014 QCCA 495 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-09-024146-144 (500-12-268174-038) MINUTES OF THE HEARING DATE: March 12, 2014 THE HONOURABLE MR. JUSTICE NICHOLAS KASIRER, J.A. PETITIONER S. Q. In person RESPONDENT COUNCEL C. G. Mtre Luce Gayrard Mtre Gabrielle Gayra rd ME LUCE GAYRARD MOTION TO EXTEND THE DELAY TO APPEAL ( Subsection 21(4) of the Divorce Act ) Clerk: Asma Berrak Court Room: RC.18

HEARING 9:33: Beginning of the hearing. 9:33: Discussion between the judge and Mtre Luce Gayrard. 9:34: Submission by Ms Q.. 9:59: Submission by Mtre Gayrard. 10:27: Reply by Ms Q.. 10:36: Suspension of the hearing. 10:46: Resumption of the hearing. 10:46: Judgment-see page 3. 10:52: Conclusion of the hearing. Asma Berrak Clerk JUDGMENT [ 1 ] Pursuant to subsection 21(4) of the Divorce Act , S. Q. has filed a motion to extend the time limit within which she may appeal a judgment rendered by the Superior Court, the District of Montreal on December 6, 2013.

That judgment, inter alia , granted two motions filed by C. G. following the divorce between the parties. The judge made orders suspending the payment of alimentary pensions payable by him and maintained a suspension of access rights as well as all forms of contact between Ms. Q. and their child X. [ 2 ] Ms. Q. represents herself in these proceedings. [ 3 ] On February 19, 2014, my colleague St-Pierre, J.A. dismissed Ms.

Q.’s motion for leave to appeal from the same judgment on the grounds that the judgment was final and therefore subject to appeal as of right, pursuant to subsection 21(1) of the Divorce Act (reported at 2014 QCCA 319 ). St-Pierre, J.A. observed, at paragraph [8] of her reasons, that Ms.

Q. was not without remedy in the circumstances “since she may present to the Court or to one of its judges a motion to extend the time limit of 30 days as per article 21(4) of the Divorce Act (hereinabove mentioned) if she sees fit to do so”. [ 4 ] She thus filed the motion now before me. [ 5 ] Has the petitioner demonstrated the existence of “special grounds/motifs particuliers”, within the meaning of that expression in subsection 21(4) , to justify that the time limit to bring an appeal be extended? [ 6 ] In my view, and assuming, pursuant to St-Pierre, J.A.'s judgment, that the decision of the Superior Court is a final judgment, Ms.

Q. has met this burden. I would grant the motion to extend the time limit for bringing an appeal to 4:30 p.m. on March 21, 2014. [ 7 ] I note firstly that the motion for leave before St-Pierre, J.A. had been filed within 30 days of the judgment, which indicates the petitioner’s intention to bring an appeal within the applicable time limits. Petitioner claims she proceeded with a motion for leave because she mistakenly thought that the judgment was an interlocutory one, given that Turcotte, J. convened the parties, at an as yet unspecified date, to a case management conference in her conclusions for judgment.

Not only should Ms. Q.’s procedural mistake, assuming it was one, not deprive her of a substantive right of appeal in the circumstances, but it cannot be meaningfully said that it causes prejudice to Mr. G.. [ 8 ] In respect of the substance of her motion before me this morning, Ms. Q. submits that the judge erred in suspending payment of child support and alleges errors of fact and law in respect of Ms. Q.’s access rights.

Without commenting further on the carefully-written reasons of Turcotte, J. in the Superior Court, I cannot conclude, on the basis of the pleadings before me, that an appeal would be without a reasonable prospect of success, on one or another of the points it raises, if leave were to be granted. [ 9 ] On this basis, there are special reasons justifying that the motion should be granted. [ 10 ] I note that Ms.

Q. asks, in the conclusions to her motion, that she be permitted to file an inscription in appeal within ten days of the present judgment and has not asked that her motion be considered to stand as an inscription in appeal. She shall have until March 21, 2014 to file the inscription.

[ 11 ] A final observation is in order. Even from the imperfect vantage point of a judge in chambers, it appears likely that the longstanding dispute between the parties could well have a ruinous effect on their children’s future happiness and on the parties’ own finances. I would respectfully remind Ms. Q. and Mr. G. that, once an appeal has been properly filed, they might usefully avail themselves of the optional mediation services of this Court.

In a comparable setting, my colleague Gascon, J.A. noted the advantages for parties to seek out “un terrain d’entente plutôt que de consacrer leurs moyens et leurs énergies aux débats judiciaires”: Droit de la famille —13446 , 2013 QCCA 358 , para. [6] . These words bear careful consideration here in light of the relevance of principles relating to the best interest of the child and proportionality in judicial proceedings to family law dispute resolution. I say so mindful of the fact that mediation has not proved fruitful in the past.

FOR THE AFOREMENTIONED REASONS , the undersigned: [ 12 ] GRANTS the motion; [ 13 ] EXTENDS the time limit for the petitioner to file an inscription in appeal to 4:30 p.m. on March 21, 2014; [ 14 ] Without costs given the nature of the dispute. NICHOLAS KASIRER, J.A.