2016 QCCA 731, 2016 QCCA 731

Droit de la famille — 16988 2016 QCCA 731 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025819-152 (500-12-309265-118) MINUTES OF THE HEARING DATE: April 29, 2016 THE HONOURABLE ROBERT M. MAINVILLE, J.A. APPELLANT ATTORNEY S. H. PERSONALLY RESPONDENT ATTORNEY A. HA. Mtre MARIA RITA BATTAGLIA (Maria R. Battaglia, Avocats) DESCRIPTION: Respondent’s Application to Dismiss Appellant’s Factum or to Order Appellant to File the Full Transcripts of the Hearing and to Extend the Delays of Production of the Respondent’s Written Arguments. (Article 377 C.C.P. ) Clerk: Julie Boudreault-Gravel Courtroom: RC-18

HEARING 9:30 Commencement of the hearing. Continuation of the hearing of April 28, 2016. The presence of the Parties is not required, today. BY THE JUDGE: Judgment – see page 3. End of the hearing. Julie Boudreault-Gravel Clerk BY THE JUDGE JUDGMENT [ 1 ] The appellant, S. H., is appealing a judgment dated November 24, 2015 of the Superior Court with respect to divorce proceedings and related measures. [ 2 ] The hearing of this appeal has been set for June 9th, 2016. Pursuant to a judgment dated March 18, 2016, the appellant was to serve and file her memorandum by April 1 st , 2016, and the respondent, A.

Ha., was to serve and file his memorandum by May 6 th , 2016. [ 3 ] The appellant indeed filed her memorandum on April 1 st , 2016. She included with that memorandum some short transcript excerpts of the depositions. [ 4 ] The respondent asserts that he is impeded from completing his memorandum by the fact the appellant did not serve and file the complete transcript of the depositions before the Superior Court. [ 5 ] The respondent has now served and filed an application seeking an order forcing the appellant to serve and file the complete transcript, failing which he seeks the dismissal of the appeal.

Alternatively, he asks for a postponement of the date on which he must file and serve his own memorandum. This would allow him to secure appropriate transcript excerpts of the depositions that he intends to rely on for the purposes of the appeal and which he will include in his memorandum. [ 6 ] At the hearing concerning the respondent’s application, the appellant indicated that she did not order any other transcripts than those set out in her memorandum. She added that she had obtained a copy of the recording of the complete trial depositions before the Superior Court in “CD” format.

She also indicated that she could provide a copy of this “CD” recording to the respondent’s counsel. [ 7 ] The respondent’s counsel indicated that only certain transcript excerpts of the trial depositions would be pertinent for the purposes of properly responding to the appellant’s submissions with respect to the appeal. [ 8 ] Both parties acknowledged that it would require approximately 30 days to obtain additional transcripts and that it would be preferable not to postpone the appeal hearing date set for June 9, 2016. [ 9 ] The second paragraph of

article 370 of the new Code of civil procedure ( C.c.p. ) provides that relevant extracts from the evidence are attached to each appeal brief and that a full transcript of the depositions and evidence is filed only if available on technological medium. Moreover,

article 46 of the Court of Appeal – Civil Practice Regulation (“ Regulation ”) adds that in the case of an appeal brief, the exhibits and depositions necessary for the Court to decide the issues in dispute may be produced by technological means, in which case only the excerpts to which the submissions refer are to be reproduced on paper.

Article 55 of the Regulation sets out that the provisions relating to briefs apply to memoranda with the necessary adaptations. [ 10 ] Taking into account these provisions of the C.c.p. and of the Regulation as well as the principle of proportionality set out in

article 18 C.c.p. , and having regard to the best interests of justice, I will (

a) order the appellant to serve a copy of the “CD” version of the depositions on the respondent’s counsel and to file additional copies of the “CD” version with the Court; (

b) extend to May 23, 2016 the deadline for the respondent to serve and file his memorandum; (

c) authorize the respondent to serve and file by June 3, 2016 transcripts of extracts of the trial depositions in support of his memorandum; and (

d) confirm and maintain the appeal hearing date of June 9, 2016. FOR THESE REASONS , the undersigned judge: [ 11 ] ALLOWS in part only the application of the respondent;

[ 12 ] ORDERS the appellant to serve on the respondent’s counsel by Tuesday May 3 rd , 2016 one “CD” copy of the recording of the trial depositions; [ 13 ] ORDERS the appellant to file with the Court by Friday May 6 th , 2016 four “CD” copies of the recording of the trial depositions; [ 14 ] EXTENDS to Monday May 23, 2016 the deadline for the respondent to serve and file his memorandum; [ 15 ] AUTHORIZES the respondent to serve and file by Friday June 3, 2016 transcripts of extracts of the trial depositions which he relies on in support of his memorandum; [ 16 ] CONFIRMS and MAINTAINS the hearing date of June 9, 2016. [ 17 ] The whole without legal costs. ROBERT M. MAINVILLE, J.A.