2015 QCCA 1352, 2015 QCCA 1352

Droit de la famille — 152015 2015 QCCA 1352 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025478-157 (500-04-066333-155) (500-12-326305-152) DATE: AUGUST 18, 2015 PRESIDING: THE HONOURABLE NICHOLAS KASIRER, J.A. B. S. PETITIONER – defendant v. S. K. RESPONDENT – plaintiff JUDGMENT [ 1 ] In connection with an action for divorce brought against him by S. K., B.

S. asks for leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Catherine Mandeville), rendered July 16, 2015, that, inter alia , granted Ms K.’s motion to dismiss Mr. S.’s proceedings, to foreclose him from filing any further proceedings and to strike his affidavits filed pursuant to

section 21.1 of the Divorce Act . The judge ordered that Mr. S. be authorized to refile his divorce proceedings in the Superior Court if he files, at the same time, an affidavit indicating that all the barriers to Ms K.’s remarriage within the Jewish faith have been removed. Failing such affidavit, the judge authorized Ms K. to proceed in the divorce action ex parte . The judge also suspended all proceedings in an action for separation as to bed and board brought by Mr.

S.. [ 2 ] In my view, by authorizing the petitioner to refile his divorce proceedings if and only if he files an affidavit indicating that all barriers to Ms K.’s remarriage have been removed, and by authorizing her to proceed ex parte in the absence of a new affidavit, the judgment ordered that something be done that cannot be remedied by final judgment (article 29, para. 1 C.C.P.). [ 3 ] Moreover, mindful as I am that there is a significant factual aspect to the judge’s carefully-reasoned conclusion that Mr. S. failed to meet the requirements of

section 21.1 of the Divorce Act , I am nevertheless of the view that the “pursuit of justice / les fins de la justice”, within the meaning of

article 511 C.C.P., require that leave be granted. [ 4 ] Proceedings in first instance should continue and the appeal should be placed on the accelerated roll. [ 5 ] At the hearing, both parties express some sense that the matter might be ripe for settlement. I remind the parties that they may avail themselves of the mediation service of this Court should they decide it to be appropriate. [ 6 ] Given that there should be case management of the appeal; [ 7 ] Given sections 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48. Abandonment.

Where the appellant’s arguments and documents standing in lieu of the factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandis . 49. Foreclosure. Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedure apply, mutatis mutandis. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 8 ] GRANTS the motion for leave to appeal; [ 9 ] AUTHORIZES the appeal of the judgment of the Superior Court; [ 10 ] ORDERS the continuation of proceedings in first instance; [ 11 ] PLACES the case on the roll of December 18, 2015 , in room Pierre-Basile-Mignault for a 90-minute hearing (45 minutes for each party);

[ 12 ] ORDERS the appellant, after having served a copy upon the respondent, to file in the office of the Court, no later than September 21, 2015 , 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; [ 13 ] ORDERS the respondent, after having served a copy upon the appellant, to file in the office of the Court, no later than October 23, 2015 , five copies of a written argument not exceeding 20 pages , of her supplementary documents and of her authorities; [ 14 ] 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; [ 15 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 16 ] COSTS to follow suit.

NICHOLAS KASIRER, J.A. Mtre Gerald Stotland Mtre Victoria Cohene Mtre Laurence Bich-Carrière Lavery, De Billy, s.e.n.c.r.l. For the Petitioner Mtre Anne-France Goldwater Mtre Alexander Carin Goldwater Dubé Mtre Linda Schachter Devine Schachter Polak For the respondent Date of hearing: August 12, 2015