2012 QCCA 1281, 2012 QCCA 1281

Droit de la famille — 121811 2012 QCCA 1281 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020897-104 ( 500-12-284938-069 ) MINUTES OF THE HEARING DATE: July 5, 2012 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A. APPELLANT ATTORNEY J.S. Me Robert Teitelbaum Teitelbaum Librati RESPONDENT ATTORNEY D.Z. Me Mona Laflamme Rivest Tremblay Tétreault, avocats s.n Respondent's motion de bene esse to file an appearance and make an incidental appeal. Respondent's motion for revocation of judgment rendered by the Greffier of the Court of appeal and dismissal of Appellant's motion to be granted a further delay to produce her factum.

Clerk: Marcelle Desmarais Courtroom: Pierre-Basile-Mignault HEARING 14 h 02 PAR LA COUR: La Cour prend acte du consentement de Me Robert Teitelbaum, avocat de madame J... S..., à la requête de bene esse to file an appearance and make and incidental appeal. 14 h 04 Argumentation par Me Mona Laflamme sur la requête en rétraction de jugement. 14 h 07 Representations by Mtre Robert Teitelbaum. 14 h 16 Réplique par Me Mona Laflamme. 14 h 23 Reply by Mtre Robert Teitelbaum. 14 h 25 Réplique par Me Mona Laflamme. 14 h 26 Ends of arguments. 14 h 26 Suspension 14 h 36 Resumption. BY THE COURT: Judgment – see page 3.

Marcelle Desmarais Clerk BY THE COURT JUDGMENT On the Respondent's motion for revocation and the Appellant's motion for a further delay to produce her factum: [ 1 ] D.Z. applies to the Court for the revocation of a judgment rendered by the Deputy Clerk of this Court (Mtre Bertrand Gervais), on May 31, 2012, in which appellant J.S.'s motion for a further delay to produce her factum was granted for a period of 45 days. [ 2 ] Mr. Z. was absent at the hearing before the Deputy Clerk.

The judgment reads as follows: [1] Vu que la requête n'est pas contestée compte tenu de l'absence de monsieur Z... à l'audition de la requête; [2] Vu les motifs invoqués; [3] POUR CES MOTIFS , la requête est ACCUEILLIE et le délai pour la production du mémoire de la

partie appelante est

prolongé jusqu'au 16 juillet 2012. [ 3 ] In support of his motion for revocation, Mr. Z. observes that he only received the motion on May 31, 2012 in the morning, after the time of the hearing before the Deputy Clerk. [ 4 ] In point of fact, the motion had been served by a bailiff, and deposited in Mr. Z.'s mailbox, on May 29, 2012. It is true that it did not come to his attention before May 31, but service was made on May 29 at which time the motion was filed with the Court. [ 5 ] But even counting from May 29, service by the appellant nevertheless fell afoul of the applicable rules.

Section 37 of the Rules of the Court of Appeal in Civil Matters provides that a motion to be heard by the Clerk shall be served and filed in the Office of the Court at least two clear juridical days before the date fixed for presentation of the motion. Counting from May 29 to the date of the hearing on May 31, two clear days notice were not given here. [ 6 ] On this sole basis, the respondent's motion for revocation of judgment should be granted. *** [ 7 ] Mr.

Z. asks further that Ms S.'s motion for a further delay be dismissed altogether and that her appeal be declared abandoned. [ 8 ] While Ms S.'s conduct has resulted in delays, Mr. Z. has not established that some further time should not be granted to her or that the appeal should be dismissed in this case. [ 9 ] Counsel for Ms S. informs the Court that the appellant's factum was filed in the Office of the Court two days ago.

He asks nevertheless for an extension of ten days, peremptorily, in order to make certain corrections to the factum. [ 10 ] The appointment of a new lawyer by Ms S. justifies that this extension of time be granted to the appellant in order to file her corrected factum. [ 11 ] By July 16, 2012, the appellant's corrected factum must be served and filed in the Office of the Court, on pain of the Clerk recording her default and issuing a certificate stating the appeal is abandoned, pursuant to

article 503.1, para. 2, C.C.P. FOR THESE REASONS , THE COURT : [ 12 ] GRANTS the respondent's motion to revoke the judgment of the Deputy Clerk of May, 31, 2012, without costs; [ 13 ] And, proceeding to render judgment on the appellant's motion to further extend the time period originally filed before the Deputy Clerk, THE COURT : [ 14 ] GRANTS the appellant's motion to extend the time period, without costs; [ 15 ] DECLARES that the time period in which the appellant may file her corrected factum is extended, peremptorily, to July 16, 2012, at 4:30 p.m.

On Respondent's motion de bene esse to file an appearance and make an incidental appeal [ 16 ] Having considered respondent D.Z.'s motion de bene esse and with due regard to

article 523 C.C.P.; [ 17 ] Taking due note of the opposing party's consent to the conclusions of the motion. FOR THESE REASONS, THE COURT : [ 18 ] GRANTS the motion to file an appearance and a cross-appeal notwithstanding the expiry of the time allowed; [ 19 ] AUTHORIZES the respondent to file a late appearance and a late cross-appeal; [ 20 ] WITHOUT COSTS . NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A.

MARIE ST-PIERRE, J.A.