2012 QCCA 4, 2012 QCCA 4

Droit de la famille — 129 2012 QCCA 4 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021905-112 ( 500-04-056061-113 ) MINUTES OF THE HEARING DATE: January 6, 2012 MTRE BERTRAND GERVAIS, DEPUTY CLERK APPELLANT ATTORNEY(

S) M. M. Absent January 5, 2012 RESPONDENT(

S) ATTORNEY(

S) J. N. Mtre Helen Sanders absent January 5, 2012 O'HANLON, SANDERS, TEIXEIRA PETITIONER ATTORNEY(

S) Mtre GABRIELA MACHICO Present January 5, 2012 MOTION TO CEASE OCCUPYING.

Clerk: Marc Leblanc Courtroom: RC.18 HEARING The motion to cease occupying was taken under advisement January 5, 2012. The motion was heard January 5, 2012. Judgment rendered –see page 3. Marc Leblanc Clerk JUDGMENT [ 1 ] This is a motion by the appellant's attorney, Mtre Gabriela Machico, to cease occupying (s. 249 et 509.1 C.C.P.). [ 2 ] All the written arguments have already been produced and the case will be heard on January 26, 2012. [ 3 ] Mtre Machico was the only one present at the hearing. The appellant, Mr. M. M., was not there and neither was Mtre Helen Sanders, the respondent's attorney.

Mtre Sanders sent a letter to the Court on December 22, 2011 saying that she was not going to contest the motion. [ 4 ] In her motion, Mtre Machico wrote that "On December 19, 2011, Appellant revoked the undersigned attorney's mandate via e-mail". At the hearing, Mtre Machico gave me a copy of the e-mail that Mr. M. sent to her. In the e-mail, Mr. M. wrote: "Your services will no longer be required, numerous mistakes have been made to date". [ 5 ] Since that e-mail, Mtre Machino has not heard from Mr. M..

Also, the appellant has not yet filed a written appearance on his own behalf or seems to have a new attorney (no appearance in the court file). [ 6 ] In these circumstances, Mtre Machico asked this Court's permission to cease occupying because a serious breach of confidence has transpired between her and Mr. M.. [ 7 ] In Droit de la famille – 3301 [1] , Justice Gratien Duchesne states the criteria to be considered: La requête est autorisée si le Tribunal est convaincu de la validité et du sérieux des motifs invoqués et si les intérêts de la justice sont bien servis.

Elle pourrait être rejetée si les intérêts de la

partie adverse étaient préjudiciés par l'octroi de la demande.

[ 8 ] I do not doubt the seriousness of the grounds expressed in the motion. My only concern is that the case will be heard relatively soon. However, there is enough time for Mr M. to find a new lawyer, or to choose to represent himself in court. If the hearing of the case is postponed, it is likely that Mr. M. will be the party that will be the most negatively affected. [ 9 ] For these reasons : [ 10 ] The motion is ALLOWED , without costs. [ 11 ] AUTHORIZES the appellant's Attorney, Mtre Gabriel Machico, to cease occupying for the appellant in the present matter. [ 12 ] ORDERS Mr. M.

M. to immediately appoint another attorney or file a written appearance on his own behalf within 10 days of the present judgment, that is before January 16, 2012 at 4:30PM. [ 13 ] ORDERS Mtre Machico to serve the present judgment to Mr M. M. and to file in the office of this Court proof of the service. MTRE BERTRAND GERVAIS, DEPUTY CLERK