2016 QCCA 735, 2016 QCCA 735

Droit de la famille — 16983 2016 QCCA 735 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025997-164 (500-12-307889-117) MINUTES OF THE HEARING DATE: April 28, 2016 THE HONOURABLE robert m. mainville, J.A. PETITIONER COUNSEL l. sh. Mtre simon lahaie ( Lahaie, avocats ) RESPONDENT COUNSEL S. s. Mtre ROBERT PANCER ( Phillips Friedman Kotler s.e.n.c.r.l.) Mtre NICOLAS NADEAU-OUELLET (Osler, Hoskin & Harcourt, S.E.N.C.R.L./s.r.l.) DESCRIPTION: Amended Application for leave to appeal from a judgment in the Course of a Proceeding rendered on March 18, 2016 by the honourable Francine Nantel of the Superior Court, District of Montreal. (Art. 31 C .C.P. )

Clerk: Mihary Andrianaivo Courtroom: RC-18 HEARING 10:22 Commencement of the hearing. Submissions by Mtre Lahaie. 10:30 Submissions by Mtre Pancer. 10:36 Rebuttal by Mtre Lahaie. 10:37 BY THE JUDGE: Judgment – see page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The applicant, L.

Sh., has submitted an application for leave to appeal parts of a decision of Justice Francine Nantel of the Quebec Superior Court dated March 18, 2016. [ 2 ] At the outset of the hearing relating to this application, counsel for the applicant indicated that a notice of appeal as of right had also been filed by the applicant with respect to the same judgment. Consequently the application for leave to appeal was being made de bene esse . [ 3 ] The respondent, S.

S., also indicated, through his counsel, that an application to dismiss the appeal as of right would be served and filed at the latest Monday May 2, 2016. [ 4 ] In Savoie c. Thériault-Martel , 2015 QCCA 591 , par. 46 , the Court stated that when both an application de bene esse for leave to appeal and a notice of appeal as of right have been filed by the same party with respect to the same judgment, it is preferable that the application for leave to appeal be decided by a panel of this Court.

This is moreover warranted when the notice of appeal as of right is being challenged through an application to dismiss, which application may only be adjudicated by the Court and not by one of its judges. [ 5 ] Counsel for the respondent has also indicated that the trial on the merits of the case before the Superior Court has been scheduled to start on September 11, 2016 for an estimated duration of 3 months, and that any undue delay in adjudicating the applications brought before this Court could affect the scheduling of the trial in the Superior Court. [ 6 ] FOR THESE REASONS , the undersigned judge: [ 7 ] REFERS the applicant’s application de bene esse for leave to appeal to the panel of this Court sitting in the Mignault courtroom on May 9, 2016, which application is to be heard at the same time as the respondent’s application to dismiss the appeal as of right; [ 8 ] ORDERS the applicant to file with the Court by May 2, 2016 three additional copies of the application and of the documentation supporting it; [ 9 ] ACKNOWLEDGES the respondent’s undertaking not to file any new evidence with respect to the application de bene esse for leave to appeal; [ 10 ] ORDERS the respondent to serve upon the applicant and to file with the Court the application to dismiss the appeal as of right and all related materials on or before Monday May 2, 2016, said application to be made presentable on May 9, 2016 at 9:30 am before the panel of this Court sitting in the Mignault courtroom. [ 11 ] The whole without legal costs.

robert m. mainville, J.A.