2014 QCCA 2150, 2014 QCCA 2150

Droit de la famille — 142922 2014 QCCA 2150 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024592-149 ( 500-12-265910-020 ) MINUTES OF THE HEARING DATE: November 24, 2014 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. PETITIONER COUNSEL G. L. Mtre. HOWARD M. GREENFIELD ( Greenfield et Associé

s) RESPONDENT COUNSEL L. F. Mtre. JONATHAN SHULAK ( Devine Schachter Polak ) DESCRIPTION: Motion of defendant-appellant G. L., ( ès-qualités co-liquidator to the estate of the Late R. L. ) for leave to appeal from a judgment rendered on June 19, 2014 by the honourable Danielle Grenier from the Superior court, district of Montreal. (Art. 26 and 494 Code of Civil Procedure ) Clerk: Asma Berrak Courtroom: RC-18

HEARING 10 :25 Commencement of the hearing. Identification of counsel. Mtre. Greenfiled asked the judge to strike his motion without costs. Discussion between the judge and the parties. 10:27 Submission by Mtre. Greenfield. 10:37 Submission by Mtre. Shulak. 10:43 Reply by Mtre. Greenfield. 10:47 Suspension of hearing. 11:08 Resumption of hearing. Discussion between the judge and Mtre. Greenfield. 11:10 Judgment-see page 3. 11:12 Conclusion of hearing.

Clerk BY THE JUDGE JUDGMENT [ 1 ] The Petitioner is asking me to strike his motion for leave to appeal following the transmittal by the Respondent of a proof of payment that puts an end to the litigation between the parties, as it serves to negate a potential claim by the estate of the late R.

L. against the Respondent. [ 2 ] The Petitioner insists that said motion be struck without costs. [ 3 ] While it is true that the Respondent only transmitted the relevant documentation to the Petitioner last Friday, on November 21, after more than a year and a half of being required to provide same and only then sought a discontinuance with costs, the Petitioner insisted on making representations before me, today, rather than file a discontinuance that would entail the payment of costs to the Respondent.

As a result, the Respondent’s attorney had no other choice but to attend the Court today. [ 4 ] Given that the Code of Civil Procedure does not provide per se for the striking for a motion and in the absence of a consent from the Respondent, I must treat the situation as the equivalent of a discontinuance. Under the circumstances, I see no reason to forego the usual rule of awarding costs as against the party filing the discontinuance, as contemplated under

article 264 of the Code of Civil Procedure . FOR THESE REASONS, THE UNDERSIGNED : [ 5 ] PRAYS ACT of the discontinuance; [ 6 ] WITH COSTS , against the Petitioner. GENEVIÈVE MARCOTTE , J.A.