2018 QCCA 115, 2018 QCCA 115

Droit de la famille — 18123 2018 QCCA 115 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027183-177 (500-12-334119-173) MINUTES OF THE HEARING DATE: January 22, 2018 CORAM: THE HONOURABLE marie st-pierre , J.A. robert m. mainville , J.A. SUZANNE GAGNÉ , J.A. APPELLANT COUNSEL E. D. Mtre JACQUELINE SANDERSON RESPONDENT COUNSEL S. A. Mtre ROBERT PANCER (Phillips Friedman Kotler s.e.n.c.r.l.) On appeal from a judgment rendered on October 23, 2017 by the Honourable Justice Sylviane Borenstein of the Superior Court, District of Montreal

DESCRIPTION : Application to dismiss an appeal (Article 365 C . C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 12:00 Commencement of the hearing. Identification of counsel. 12:00 Mtre Pancer has nothing to add to his motion. 12:01 Submissions by Mtre Sanderson. 12:10 Mtre Sanderson presents a verbal motion de bene esse for leave to appeal, if need be. 12:23 Submissions by Mtre Pancer. 12:35 Recess. 12:44 Resumption of the hearing. 12:44 By the Court: judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] Respondent presents an application to dismiss the appeal of a judgment rendered on October 23, 2017, by the Superior Court (Honourable Sylviane Borenstein—“the judge” ) ordering the appellant to pay the respondent (plaintiff) an amount of $7,000 within a period of one month “to partially cover an unnecessary legal expenses incurred by plaintiff.” The reasons given by the judge read as follows:” It has (sic) been indeed motions and attendances at Court that were not warranted made by defendant”. [ 2 ] The appellant has not paid the amount he has been ordered to pay in virtue of the judgment. [ 3 ] The appellant has filed an appeal without first seeking leave to appeal.

He alleges that the judgment is “a final order” and that the appeal is of right under the Divorce Act . [ 4 ] According to the appellant, the issues to be determined in appeal are the following: A. Did the Judge in first instance err at law by ordering the Appellant to pay $7,000 in legal fees to the Respondent, notwithstanding that the Respondent did not even file a motion under

article 51 of the Code of Civil Procedure? B. Alternatively if a motion was filed under

article 51 of the Code of Civil Procedure, was there sufficient grounds to make such a severe order against the Appellant? [ 5 ] The appeal will be dismissed for the following reasons: (1) there is no appeal of right, only with leave to appeal granted by the Court or one of its judges; (2) no leave to appeal was requested; (3) in the present circumstances, the Court will not grant leave to appeal. [ 6 ] The judgment rendered on October 23, 2017, is not a judgment that terminates a proceeding. It is settled law that there is no appeal of such a judgment without leave to appeal being granted in accordance with articles 9, 18 and 31 C.p.c .. In Droit de la famille- 21718 , the Court wrote:

[27] Autrement dit, les paragraphes 21 (1) et (6) de la

Loi sur le divorce font en sorte que tout appel d’un jugement rendu en vertu de la

Loi sur le divorce est assujetti aux règles que la loi provinciale impose en toute matière à la formation des appels, ce qui signifie, dans le cas d’un jugement interlocutoire prononcé par la Cour supérieure du Québec, l’application des articles 29 et 511 C.p.c. C’est l’interprétation qui doit être retenue désormais, que préfigurait déjà le courant amorcé par la jurisprudence des dernières années. [28] Bref, peu importe son sujet ou son objet, tout jugement interlocutoire prononcé dans le cadre d’une instance en divorce est assujetti aux articles 29 et 511 C. p.c. [1] [ 7 ] No leave to appeal shall be granted in this case. [2] [ 8 ]

Article 18 of the Code of civil procedure imposes upon each party to a proceeding the obligation to act in accordance with the principle of proportionality.

Judges must likewise observe this principle of proportionality and ensure that the measures they authorize are in keeping with the same principle, while having regard to the proper administration of justice. [ 9 ] Granting leave to appeal in the present file would contravene the principle of proportionality. [3] FOR THESE REASONS, THE COURT: [ 10 ] GRANTS the motion to dismiss the appeal, with costs; [ 11 ] DISMISSES the motion de bene esse for leave to appeal, without costs; [ 12 ] DISMISSES the appeal, with costs. marie st-pierre, J.A. robert m. mainville, J .A. SUZANNE GAGNÉ, J.A.