2010 QCCA 2406, 2010 QCCA 2406

Droit de la famille — 103547 2010 QCCA 2406 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020818-100 ( 500-12-271196-036 ) MINUTES OF THE HEARING DATE: December, 13 th 2010 THE HONOURABLE NICHOLAS KASIRER, J.A. APPELLANT/Cross Respondent ATTORNEY(

S) P. C. Mtre Raphael Levy Mtre Evangelia Tsotsis LEVY, TSOTSIS RESPONDENT/ CrossAppellant ATTORNEY(

S) P. M. Mtre Gerald Stotland LAVERY DE BILLY

RESPONDENT/CROSSS-APPELLANT'S MOTION TO DISMISS THE APPEAL MOTION TO DISMISS RESPONDENT'S MOTION TO DISMISS THE APPEAL Clerk: Marcelle Desmarais Courtroom: RC.18 HEARING 9 h 28 Submission by Mtre Gerald Stotland. 9 h 39 Submission by Mtre Raphael Levy. 9 h 44 Suspension of the hearing. 9 h 49 Resumption BY THE JUDGE : Judgment – see page 3. Marcelle Desmarais Clerk JUDGMENT [ 1 ] The respondent has filed a motion to dismiss the appeal pursuant to

article 497, para. 3 C.C.P. [ 2 ] On October 6, 2010, the Court ordered the appellant to deposit security of $250,000 within sixty days of its judgment.

[ 3 ] On December 6, 2010, and to this day, appellant has not deposited such security. [ 4 ] On November 5, 2010, appellant filed a motion to be heard before a judge of this Court, sitting alone, seeking a safeguard order in which, inter alia , the appellant sought to extend the delay in which to furnish security for two months. In that motion, appellant asserted that he needed the extension because the respondent declined to cooperate in his effort to hypothecate the family residence.

He alleged that the residence is his only asset that could serve as collateral allowing him to post security. [ 5 ] In the judgment she rendered on the motion on November 18, 2010, Duval Hesler, J.A. postponed the appellant's motion for a safeguard order sine die . In her reasons for judgment, my colleague wrote that the appellant was seeking to introduce new evidence relevant to the Court's order of October 6, 2010, including as it might relate to the extension of the December 6, 2010 time limit.

She noted that the parties were scheduled to proceed before the Superior Court on November 29, 2010 and suggested that it would be appropriate, given the respective jurisdictions of the Superior Court and the Court of Appeal, that the substance of the motion be presented in Superior Court. [ 6 ] Given the complexity of the case, the parties could not be heard in the Superior Court on November 29, 2010.

February 7 and 8, 2011 were designated by the Superior Court to hear the matter. [ 7 ] Taking into account the judgment of my colleague of November 18, 2010 and the fact that the parties could not be heard on the safeguard motion in Superior Court until after the expiry of the 60 day period set by the Court on October 6, 2010, I am of the view that the motion should be postponed to a fixed date in the new year. FOR THESE REASONS , the undersigned [ 8 ] POSTPONES the motion [ 9 ] FIXES it for hearing before a judge of this Court sitting in chambers on February 25, 2011 [ 10 ] Costs to follow.

THE HONOURABLE NICHOLAS KASIRER, J.A.