2016 QCCA 217, 2016 QCCA 217

Droit de la famille — 16254 2016 QCCA 217 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025813-155 (500-04-061674-132) MINUTES OF THE HEARING DATE: January 25, 2016 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. APPELLANT ATTORNEY I. A. Mtre ROBERT PANCER (Phillips Friedman Kotler s.e.n.c.r.l.) RESPONDENT ATTORNEY M. G. Mtre RANDI KORZINSTONE (Goldwater, Dubé) DESCRIPTION: Motion of appellant/Applicant/Defendant I. A. for permission to appeal an interlocutory Judgment Clerk: Shirley Thomas Courtroom: RC-18

HEARING 9: 30 Commencement of the hearing. Identification of counsel. Exchanges between the Judge and Mtre Pancer. 9: 31 Representations by Mtre Pancer. 9: 45 Representations by Mtre Korzinstone. 9: 57 Reply by Mtre Pancer. 10: 00 Recess. 10: 56 Resumption of the hearing. 10: 56 By the Judge: Judgment – see page 3. 11: 01 Conclusion of the hearing. SHIRLEY THOMAS Clerk BY THE JUDGE JUDGMENT [ 1 ] The motion for leave to appeal, dated December 28, 2015, concerns a judgment of November 27, 2015, which dismisses a motion for revision under

article 44.1 of the former Code of Civil Procedure . Although pursuant to

article 833 of the new Code of Civil Procedure , the rules contained therein apply as soon as they come into force, this is an instance where the right to appeal, even subject to leave, is a substantive right that remains governed by the former articles 29 and 511 C.C.P. [ 2 ] Leave is very sparingly granted where the appeal pertains to a judgement ruling on a motion for a joinder of actions. In this instance, the motion for joinder was dismissed, a decision which was confirmed on revision in the Superior Court. [ 3 ] Custody, access and paternity proceedings are at stake here.

The facts which gave rise to the litigation are unusual in that neither party is biologically related to the child, who was born as a result of in-vitro fertilization involving a donated egg and donated sperm. [ 4 ] I am of the view that, against this background, the two proceedings in first instance, a motion to contest paternity which the defendant intends to meet with a claim of uninterrupted possession of status, and a motion styled “motion for child custody, child support and safeguard measures”, which the respondent (and plaintiff in the paternity proceedings), contests on various grounds, are closely related and that they ought perhaps to be heard together – at any rate, the matter is debatable, is serious and would benefit from a review by a panel of the Court. [ 5 ] Therefore, exceptionally for a case of this nature, I conclude that the ends of justice warrant that leave be granted. [ 6 ] The motion is granted.

THEREFORE, THE UNDERSIGNED: [ 7 ] GRANTS leave to appeal; [ 8 ] ORDERS the suspension of proceedings in first instance; [ 9 ] DEFERE the request to the master of the rolls for a hearing lasting two hours [ 10 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the office of the Court, no later than February 12, 2016 five copies of a written argument not exceeding 15 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 11 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the office of the Court, no later than March 11, 2016 , five copies of a written argument not exceeding 15 pages and of his supplementary documents;

[ 12 ] THE WHOLE , legal costs to follow. YVES-MARIE MORISSETTE , J.A.