2013 QCCA 1797, 2013 QCCA 1797

Droit de la famille — 132870 2013 QCCA 1797 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023853-138 (540-12-018397-133) DATE: October 22, 2013 PRESIDING: THE HONOURABLE MR. JUSTICE ALLAN R. HILTON R. C. APPELLANT - Plaintiff v. S. D. RESPONDENT - Defendant and SA. D. I. P. RESPONDENTS - Intervenors JUDGMENT [ 1 ] I have before me a motion for leave to appeal two conclusions of a judgment of the Superior Court rendered on July 30, 2013 (the Honourable Mr. Justice Pierre Béliveau) that adjudicated interim measures in a contested divorce proceeding.

The conclusions of the judgment that are in issue relate to the obligation of the petitioner/plaintiff R. C. to vacate the family residence with her two children, who are 8 and 10 years of age, for which the same judgment established a shared custody arrangement. The maximum delay for her and the children to vacate the family residence was three months from the date of judgment.

I also have before me a motion to suspend the provisional execution of the two conclusions of that judgment for which leave is sought. [ 2 ] The main issue giving rise to the impugned conclusions in the interim judgment relates to a dispute as to the ownership of the family residence. The petitioner acknowledges that the matrimonial home was built on vacant land that is still registered in the name of her in-laws, Sa. D. and I. P.. She contends, however, that they gifted the vacant land to her and her husband, and that she and her husband paid for the construction of the residence. Sa. D. and I.

P. have intervened in the divorce proceedings to assert their claim that they are in fact and in law the owners of both the home and the land on which it is built. The issue of ownership remains to be resolved on the merits. [ 3 ] The motions judge was of the view that the petitioner might be able to establish a financial interest in the residence, but that she could not successfully contend on the merits that she had a right to occupy that residence.

Hence, he felt it was preferable that the petitioner and her two young children vacate the residence by October 31, in other words sooner rather than later, in order to establish new roots for everyone.

The consequence of that decision, I was told at the hearing, is that the respondent would occupy the residence upon its being vacated, and that is where he would receive the two children when they were in his custody, which, essentially, is to be every weekend. [ 4 ] The petitioner’s main contention, when reduced to its essentials, is that the motions judge far exceeded what is appropriate to order on a judgment for interim measures, that the judgment effectively deprived her of the opportunity to lead evidence to establish her client’s position that her in-laws gifted the property to her and her husband, and that they paid for the construction of the residence as well as the payments under the deed of hypothec that financed the construction.

In this respect, she relies on the proposition that an interim order should not have the effect of changing the status quo with respect to the occupation of the family residence, especially where that effect will be to displace the children from their home. [1] [ 5 ] I should add here that I was shown some evidence at the hearing that the intervenants are the registered hypothecary debtors.

What complicates the matter, however, is that there is no formally registered title to the home on the land of which the intervenants are the registered owners, although the description of the hypothecated property in the registered deeds does mention the civic address of the home. [ 6 ] Counsel for the respondent and the intervenants raised a preliminary matter that I must consider before going further, and which required me to ascertain the precise sequence of events relating to the opening of the file by consulting the Court file and jurists in the Court’s Registry. [ 7 ] The oral judgment of the Superior Court was rendered on the afternoon of July 30, 2013 in the presence of counsel, which means that the delay to serve and file the motion for leave to appeal expired at 4:30pm on August 29 in accordance with the third

paragraph of

article 494 C .C.P . [ 8 ] The petitioner’s bailiff prepared a minute that indicates that the original and copy of the motion for leave to appeal were filed at 4:15pm on August 29 with the Court’s Registry. The judicial stamp affixed by the official in the Court’s Registry indicates, however, that only the original of the motion was filed at 4:19pm that day. [ 9 ] According to the returns of service of the bailiff, counsel for the respondent and the intervenants were subsequently served with the motion for leave to appeal on the late afternoon of August 29, at 5:05pm and 5:15pm respectively.

To complete the portrait, the judicial stamp on the copy of the motion indicates it was filed at the Registry at 2:44pm on August 30, that is, after the expiry of the 30- day time limit from July 30. Moreover, the computerized court docket for this file indicates that it was opened on August 30. [ 10 ] The respondent and the intervenants accordingly argue that the thirty-day time limit within which an application for leave to appeal must be both served and filed was not respected, in that the necessary service and filing of the motion was completed on the thirty-first day after judgment had been rendered.

In support of this proposition, counsel rely on a judgment of mine as judge in chambers in 9109-0068 Québec inc. v. Main-d'oeuvre Lambert inc . in which an issue arose as to the late filing of the proceedings by one day.

I dismissed a motion for leave to appeal, despite the absence of any prejudice, since the absence of prejudice is not attributive of jurisdiction that does not otherwise then exist. [2] [ 11 ] Recent judgments of judges in chambers of this Court are to the same effect. [3] Counsel for the petitioner does not contest the correctness of these judgments, but contends they are inapplicable because from her perspective, the filing of her proceedings complied with the requirements of the third paragraph of

article 494 C .C.P. , or at least, so she may have been led to believe. [ 12 ] My inquiries with the jurists at the Court’s Registry revealed that, subject to what appears in the next sentence, it always requires proof of service of a proceeding before accepting it for filing.

Nevertheless, in accordance with a practice that has apparently existed for several years, the Registry accepts the filing of the original of a proceeding without it having been yet served when the time limit for serving and filing would expire that day, on the condition that proof of service is produced the next day showing that the proceeding was served prior to the expiry of the time limit.

Apparently, this practice was developed to accommodate the possibility of valid service on the date of expiry in circumstances where the service can still be legally made after 4:30pm, which is the time the Registry closes in accordance with

section 2 of the Rules of Practice of the Court of Appeal in Civil Matters. [ 13 ] Although I certainly cannot speak for my colleagues on the Court, I was unaware of this practice despite having been a judge of this Court for in excess of 10 years. [ 14 ] Given the sequence of events that I have described in paragraphs [7] to [9] above, that is apparently what happened in this case.

Unfortunately for the petitioner, however, the Registry’s practice to waive the requirement of the Code of Civil Procedure that a motion for leave to appeal must be served and filed within 30 days of the judgment from which leave is sought when the time limit to do so expires that day is inconsistent with the requirements the legislature has imposed. In this respect, I refer to an extract from the first paragraph of

article 78 C .C.P . to the following effect: 78. A moins d'une disposition contraire, tout acte de procédure d'une

partie doit être signifié aux procureurs des autres parties, ou aux parties elles-mêmes si elles n'ont pas de procureur, sans quoi il ne peut être régulièrement produit ; s'il contient une demande qui doit être présentée à un juge ou au tribunal, il doit être accompagné d'un avis de la date de cette présentation, et la signification doit en avoir été faite au moins un jour juridique franc avant cette date sauf au cas d'urgence où le juge peut abréger le délai. […] [soulignage ajouté] 78.

Failing provision to the contrary, any written proceeding of a party must be served upon the attorneys of the other parties, or upon the parties themselves if they have no attorney, otherwise it cannot be regularly filed ; if it contains a demand which must be presented to a judge or to the court, it must be accompanied by a notice of the date of such presentation, and the service must have been made at least one clear juridical day before such date, except in a case of urgency when the judge may allow a shorter time. […] [Emphasis added.] [ 15 ] I frankly doubt that even the Court could adopt a rule of practice to the same effect as the Registry’s practice, let alone the Registry itself, since to do so is in conflict with what the Code of Civil Procedure provides.

Accordingly, the Registry must henceforth apply the requirements for the service and filing of written proceedings in compliance with the requirements of

article 78 C .C.P. [4] and, where it is sought to file motions for leave to appeal, with the third paragraph of

article 494 C .C.P . [ 16 ] I have no doubt that the Registry established this practice in good faith with a view to ensuring that a party would not lose its rights to seek leave to appeal. That being said, respondents to motions for leave to appeal also have rights, and they include the right to the respect of the process by which a court file is opened in this Court.

The mere existence of this practice is precisely what has given rise to the unfortunate belief that the petitioner’s proceedings were validly served and filed when in fact they were not. [ 17 ] I would also add that a party who waits until the late afternoon of the last day to serve and file a motion for leave to appeal is flirting with danger, knowing that the Registry closes at 4:30pm. Moreover, a party such as the petitioner in this case still has the right to apply for leave to appeal beyond the 30-day time limit pursuant to subsection 21(4) of the Divorce Act .

I appreciate that there is now some urgency to do so given that the order of the motions judge requires her to vacate the premises in question in less than two weeks by

October 31. Here again, however, that is a function of the leave application not having been asserted earlier, instead of in extremis . [ 18 ] Finally, it goes without saying that the interim judgment of the motions judge is subject to revision, and no other judge of the Superior Court is bound by it. Nevertheless, in such circumstances I have no choice but to dismiss the motion for leave to appeal, saving the petitioner's recourse under subsection 21(4) of the Divorce Act .

For that reason, the motion to suspend provisional execution has become academic and accordingly it too will be dismissed. [ 19 ] Since the petitioner still has the right to apply for an extension of time to seek leave to appeal, it is preferable that I not comment further on the submissions of any counsel dealing with the merits of the motions. FOR THESE REASONS, THE UNDERSIGNED: [ 20 ] DISMISSES the motion for leave to appeal, without costs, saving the petitioner's recourse pursuant to subsection 21(4) of the Divorce Act ; [ 21 ] DISMISSES the motion for provisional execution, without costs. ALLAN R.

HILTON Mtre Maria Rita Battaglia MARIA R. BATTAGLIA, ATTORNEYS For the petitioner Mtre Sylvia Beatrix Schirm For the respondent S. D. Mtre Maria Cristina Argento ZAURRINI AVOCATS For the respondents Sa. D. and I. P. Date of hearing: October 16, 2013