2021 QCCA 1638, 2021 QCCA 1638

Droit de la famille — 212084 2021 QCCA 1638 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029734-217 ( 500-04-060805-133 ) MINUTES OF HEARING DATE: October 29, 2021 THE HONOURABLE PETER KALICHMAN, J.A. APPLICANT COUNSEL G. D. Mtre DAN ROMANO ( KALMAN SAMUELS, Avocats – Attorneys ) By videoconference RESPONDENT COUNSEL J. A. Mtre Lori Boyadjian ( Azran & associés avocats ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on October 14, 2021 by the Honourable Gary D.D.

Morrison of the Superior Court , District of Montreal (Art. 31 and 357 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:46 Commencement of the hearing. Identification of counsel. Preliminary comments.

10:47 Submissions by Mtre Romano. 10:57 Submissions by Mtre Boyadjian. 11:03 Discussion between the parties. 11:04 Reply by Mtre Romano. 11:09 BY THE JUDGE: Judgment will be rendered on the minutes of the hearing and be sent to the parties. Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Applicant seeks leave to appeal from a judgment rendered on September 15, 2021 by the Superior Court, district of Montreal (the Honourable Gary D.D.

Morrison), dismissing her application for declinatory exception. [ 2 ] The Applicant submits that the Superior Court is not competent to hear the Respondent’s application to modify custody and child support in regards to their two minor children, because the children are domiciled in Belgium in accordance with an earlier decision of the same court, homologating an agreement between the parties. [ 3 ] The judge determines that by homologating the parties’ agreement, the Superior Court authorized only a temporary move on a trial basis and did not « in any final sense » authorize the children to move to Belgium.

Accordingly, applying the Court’s decision in L.J. v. M.P . [1] , he determines that the Superior Court has not lost jurisdiction. [ 4 ] The Applicant submits that the judge mischaracterized the agreement of the parties and erroneously concluded that the homologation judgment was temporary when, in fact, it was final. **** [ 5 ] The judgment was rendered in the course of proceedings and may be appealed with leave in accordance with

Article 31 C.C.P . Leave will be granted if it is demonstrated that the judgment determines in part the dispute or causes irremediable injury to a party. In addition, the appellant must demonstrate that the appeal is consistent with the principles of proportionality and of the proper administration of justice. [2] [ 6 ] The situation that results from the dismissal of a declinatory exception cannot be altered by the final judgment.

In this sense, such a judgment decides in part the dispute between the parties. [3] [ 7 ] Without in any way commenting on the merits of the judgment, the Applicant has convinced me that leave should be granted.

FOR THESE REASONS, THE UNDERSIGNED : [ 8 ] GRANTS the application for leave to appeal; [ 9 ] GRANTS leave to appeal; [ 10 ] ORDERS the suspension of proceedings in first instance; [ 11 ] PLACES the case on the roll for February 25, 2022, in the Pierre-Basile Mignault room at 9:30 am, for a hearing of 90 minutes in duration; [ 12 ] ORDERS the Appellant, after having notified a copy upon the Respondent, to file in the Office of the Court, no later than

November 29, 2021, five copies of a written argument not exceeding 10 pages. All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 13 ] ORDERS the Respondent, after having notified a copy upon the Appellant, to file in the Office of the Court, no later than January 7, 2022, five copies of a written argument not exceeding 10 pages and of his supplementary documents; [ 14 ] DIRECTS the parties’ attention to

article 376 C.C.P. and

section 55 of the Civil Practice Regulation, which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 15 ] REMINDS the parties about Practice Direction G-3 (latest revision: April 20, 2021) which strongly encourages them to attach a technological version of their brief or memorandum and their book of authorities to each hard copy of those documents.

The technological version must be saved on a USB key and must be in PDF format that allows keyword searches and includes hyperlinks from the table of contents to the brief, memorandum or book of authorities and, where applicable, from the argument to the schedules. If the Word version of their argument is available, parties are also invited to put that version on the USB key. [ 16 ] THE WHOLE , legal costs to follow. PETER KALICHMAN, J.A.