2015 QCCA 1121, 2015 QCCA 1121

Droit de la famille — 151595 2015 QCCA 1121 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025358-151 (700-04-025854-156) MINUTES OF THE HEARING DATE: June 25, 2015 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PETITIONER COUNSEL J. H. Mtre IAN M. SOLLOWAY RESPONDENT COUNSEL N. V. Mtre SHERI M. SPUNT ( Kalman Samuels Q.C. & Associates ) DESCRIPTION: Motion for leave to appeal an interlocutory judgment rendered June 2, 2015, by the Honourable Justice Michel A. Caron of the Superior Court, District of Terrebonne. (Art. 29, 494 and 511 C.P.C .) Clerk: Robert Osadchuck Courtroom: RC-18

HEARING 14:31 Commencement of the hearing. Identification of counsel. 14:31 Submissions by Mtre Solloway 14:46 Submissions by Mtre Spunt. 15:19 Reply by Mtre Solloway. 15:25 Recess. 15:39 Resumption of the hearing. 15:39 Judgment – see page 3. 15:41 Exchanges between the judge and counsel. 15:49 Conclusion of the hearing. Robert Osadchuck Clerk BY THE JUDGE JUDGMENT [ 1 ] I am acutely aware of this Court’s recent judgment in Stormbreaker Marketing and Productions inc. v.

Weinstock , 2013 QCCA 269 , and also aware that factors such as the best interests of the child and the length of his and his mother’s stay in this jurisdiction may weigh heavily in favour of the judgment below, but I feel compelled to agree with counsel for the applicant when he underscores that clauses 17 of the Separation Agreement and 15 of the Shared Parenting Plan are, in this instance, both relevant to the issues between the parties and problematic. [ 2 ] The question whether such contractual language in agreements of this kind can trump other factors pertaining specifically to family law disputes (such as material changes in circumstances over time), and thus deprive a local court of a jurisdiction it otherwise would clearly have, is one which I believe could opportunely be settled by this Court. [ 3 ] The respondent insists that the marked economic imbalance between the parties operates very much to her detriment. [ 4 ] That may indeed be the case and may even appear, prima facie , to be the case, but nothing prevents the respondent for applying to this court for a provision for costs. [ 5 ] In the end, therefore, I think leave should be given to the applicant. [ 6 ] Given articles 29 and 511 C.C.P. ; [ 7 ] Given that there should be case management of the appeal; [ 8 ] Given rules 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48.

Abandonment. Where the appellant’s arguments and documents standing in lieu of the factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandis . 49. Foreclosure. Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedure apply, mutatis mutandis.

FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] GRANTS the motion for leave to appeal; [ 10 ] ORDERS the suspension of proceedings in first instance; [ 11 ] PLACES the case on the roll of September 4, 2015 in room Pierre-Basile-Mignault for a 90 minutes hearing; [ 12 ] ORDERS the appellant, after having served a copy upon the respondent, to file in the office of the Court, no later than July 24, 2015, five copies of a written argument not exceeding 20 pages, of the exhibits that would normally have made up schedules I, II and III of his factum and of his authorities; [ 13 ] ORDERS the respondent, after having served a copy upon the appellant, to file in the office of the Court, no later than August 17, 2015, five copies of a written argument not exceeding 20 pages, of his supplementary documents and of his authorities; [ 14 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12- point type, with no more than 12 characters per 2.5 cm, the use of the font ARIAL-12 being strongly recommended; [ 15 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 16 ] THE WHOLE , costs to follow.

YVES-MARIE MORISSETTE, J.A.