Droit de la famille — 161113
no. de référence : 2016 QCCS 2202SUPERIOR COURT
PROVINCE OF QUEBEC
MAY 11, 2016
BEFORE THE HONOURABLE MR. JUSTICE MARK G. PEACOCK, J.S.C.
 The Father asks the Court to strike the Mother’s Discontinuance of her own divorce proceedings which she instituted approximately six weeks earlier. The Discontinuance occurred following several interim decisions which did not support positions taken by the Mother. Also, the Discontinuance was filed by the Mother only two days after she received $4,500,000 from the sale of the family residence.
 The Father asserts that the Mother’s Discontinuance should be struck by the Court on the grounds that it is abusive and in bad faith and that both his rights and the rights of the two minor children (aged 8 and 12) are prejudiced by the Discontinuance.
B. FACTUAL CONTEXT
 The Mother instituted divorce proceedings on March 1, 2016, presentable on March 30, 2016.
 On March 24, 2016, the Mother served an Amended Motion for Provisional Measures. The Father also filed a Motion Seeking Interim Provisional Measures.
 Two interim hearings were held:
a. On March 30, 2016, Mr. Justice Jerry Zigman appointed Mr. Valentin Molpeceres, as attorney to the minor children; ordered spousal support of $7,500 per month; and confirmed the sale of the family residence for which the parties had signed a promise to purchase and a direction of payment dated February 8, 2016 (the “Zigman judgment”); and
b. on April 13, 2016, Mr. Justice Michel Yergeau, ordered that the $5,000 attorney’s fee for the children’s attorney appointed in the Zigman judgment be paid equally by the parents by May 13, 2016.
 On April 11, 2016, the closing of the sale of the family residence took place.
 According to the Father’s affidavit of April 13, 2016, the Mother received $4,500,000 from the sale of the family residence.
 On April 15, 2016, the Mother served the Father with a Discontinuance which said: “The Plaintiff hereby desists from her Introductory Motion for Divorce dated March 2, 2016 and all ancillary proceedings against the Defendant”. It was filed into court at 12:25 PM on that date.
 One hour and 20 minutes later, the Father filed his Defence and Counterclaim in the divorce proceedings into the Court record at 14:15 PM.
 In that procedure, the Father at paragraph 7 provides a Partial Acquiescence including, amongst other things, agreeing to the divorce and paying 100% of the children’s special expenses.
 An exhibit filed by the Mother  is a statement of account from her attorneys for the period from March 5, 2016 up to April 4, 2016 in the amount of $22,028.41.
 On April 18, 2016, the Father signed an affidavit in support of his Application to Strike & Dismiss Plaintiff’s Desistment basing himself on CCP art. 25 and 213.
 On April 19, 2016, the Mother filed an Application to Dismiss Defendant’s Application to Strike & Dismiss Plaintiff’s Desistment basing herself on CCP art. 25, 167 and 168.
C. DOES THE MOTHER HAVE THE RIGHT TO DESIST FROM HER DIVORCE ACTION
1. GOVERNING LAW
 CCP art. 213 is the applicable provision regarding discontinuance:
213. Discontinuance by the plaintiff of the whole of a judicial application terminates the proceeding on the notification of a notice of discontinuance to the other parties and its filing with the court office. It restores matters to their former state, and is effective immediately if it takes place before the court and in the presence of the parties. The legal costs are borne by the plaintiff, subject to an agreement between the parties or a decision of the court.
2014, c. 1, a. 213.
 On its face, this article puts an end to the Mother’s divorce proceeding and all matters incidental to it, as of 12:15 PM on April 15, 2016, the date of its filing with the court office. Accordingly, unless the Discontinuance is struck as the Father requests, all subsequent legal procedures – including the Father’s Defence and Counterclaim – are null and of no legal effect since the divorce proceeding is deemed terminated.
 The jurisprudence and doctrine are clear that the right to discontinue is not absolute and the Court has the judicial discretion to strike the discontinuance, amongst other reasons, where the rights of a party or a third party are affected.
 In the following two paragraphs of his Application to Strike & Dismiss Plaintiff’s Desistment, the Father asserts that the Mother’s Discontinuance prejudices both his rights and those of his children:
21. Plaintiff’s actions, since the filing of her proceedings and particularly her filing a desistment at this stage, have been abusive, in bad faith and a manipulation of the judicial system, namely:
a) Plaintiff’s threats to delay and/or obstruct the sale of the family residence;
b) Plaintiff contested the appointment of an attorney for the children;
c) Plaintiff refused to pay her share of the retainer requested by the children’s attorney;
d) Plaintiff obstructed the scheduling of the children’s appointment with their attorney and refused to take them to his offices;
e) Plaintiff waited till she had received the $4,500,000.00 and then filed her desistment;
22. Additionally, Plaintiff, in bad faith, filed the desistment in order to secure a more favourable financial outcome and to circumvent all of the decisions rendered by this Honourable Court against her;
 Both the Father and Mother rely on CCP art. 25, amongst other articles, to support their respective Motions before the Court:
25. The rules of this Code are designed to facilitate the resolution of disputes and to bring out the substantive law and ensure that it is carried out.
Failure to observe a rule that is not a public order rule does not prevent an application from being decided provided the failure is remedied in a timely manner; likewise, if no specific procedure is provided for exercising a right, any mode of proceeding may be used that is not inconsistent with the rules of this Code.
2014, c. 1, a. 25.
 In addition to earlier jurisprudence, the Court must now interpret CCP art. 213 in the context of the mission of the courts and the guiding principles of procedure established in the present Code of Civil Procedure.
 A critical principle is that courts do not initiate litigation:
CCP art. 17:
The court cannot rule on an application, or order a measure on its own initiative, which affects the rights of a party unless the party has been heard or duly called.
 This principle that the parties are “dominus litis” is confirmed by CCP art. 9: “It is the mission of the courts to adjudicate the disputes brought before them, in accordance with the applicable rules of law …” This relative control of litigation is reinforced again in CCP art. 19:
CCP art. 19:
Subject to the duty of the courts to ensure proper case management and the orderly progress of proceedings, the parties control the course of their case insofar as they comply with the principles, objectives and rules of procedure and the prescribed time limits.
They must be careful to confine the case to what is necessary to resolve the dispute, and must refrain from acting with the intent to cause prejudice to another person or behaving in an excessive or unreasonable manner, contrary to the requirements of good faith.
2014, c. 1, a. 19.
 In the first part of CCP art. 19, the legislator restricts the parties’ control to allow the courts’ supervisory role to intervene “to ensure proper case management and the orderly progress of proceedings”, an aspect of which is the principle of proportionality (CCP art. 18).
 Under CCP art. 19.2, a party cannot behave “in an excessive or unreasonable manner contrary to the requirements of good faith”. By specifically using these words, the Legislator must have intended that the principles of the earlier jurisprudence (see para. 16 above) should be implied into the present Code. The Court determines that it would be both “excessive and unreasonable” for a Discontinuance to be allowed where that Discontinuance prejudiced the rights of another party or a third party.
a. Are any rights of the Father Prejudiced by the Mother's Discontinuance?
 The Court understands why the timing of the Mother’s Discontinuance, a scant two days after receiving the $4,500,000, may have raised the Father’s suspicions. However, the Father has failed to prove on the balance of probabilities that such Discontinuance has prejudiced his rights.
 Firstly, the Divorce Act permits either or both spouses to bring a divorce petition. The Father can start a new petition.
 Secondly, the sale of the family residence has been completed.
 Thirdly, unlike other jurisprudence where discontinuances have been refused where the file was in its final stages, either of final hearing or deliberation, the Discontinuance in this case has occurred in its very earliest stages; hence “judge shopping” to receive a more favourable final judgment is not a factor.
 Fourthly, the Court is mindful that the Mother spent more than $22,000 in extrajudicial fees in the six weeks since she instituted proceedings on March 3, 2016, expenses which were presumably similar to those incurred by the Father. The Code of Civil Procedure provides remedies for the Father should he consider himself entitled to legal costs or other expenses (see CCP art. 213, amongst others) in the present proceedings.
 Fifthly, by analogy, the Court of Appeal has confirmed that a party may discontinue an action for separation from bed and board, as Mr. Justice Montgomery said in the 1967 Court of Appeal case of Dethioux v. Rahier :
"I agree that, once having obtained a judgment of separation from bed and board, a plaintiff cannot renounce it. Such a judgment changes the status of the parties, and this cannot again be changed by the action of one alone (art. 217 C.C.). This reasoning does not, in my opinion, apply to such an action before the final judgment is rendered. The action does not affect the status or capacity of the parties; it merely gives them the right to obtain certain provisional relief while it is pending. I see no reason why plaintiff cannot discontinue such an action in the same way as any other. I know of no legal principle that requires a husband to take separation proceedings against an erring wife or, having instituted them, to pursue them to final judgment. "
(this Court’s emphasis)
 Moreover, Mr. Justice André Forget then of the Superior Court confirmed that a party may discontinue a divorce proceeding prior to judgment.
 The Father refers to an additional dispute relating to gifts in a marriage contract and the rights of the parties where “one of the parties institutes proceedings in separation or divorce”.
 The fact that the Mother has discontinued the divorce proceedings does not prevent the Father from raising the issues regarding the interpretation of the marriage contract, including whether there are any legal repercussions from the Mother’s “institution of proceedings”, in any subsequent litigation.
b. Are any rights of the Children Prejudiced by the Mother's Discontinuance
 This Court determines that the Discontinuance does not affect the rights of the children either. The Father asserts that the Mother was in bad faith in relation to various aspects of the appointment of an attorney to the children (see allegations at para. 21 b), c) and d).of the Father’s Motion to Strike). For example, in the case of Droit de la famille-073489, a safeguard order concerning the children had been rendered on an interlocutory basis in a proceeding started in separation from bed and board by a parent who then sought to discontinue (but was refused). However, in the present case, there is no order affecting the children other than those aspects of the two interim judgments related to the appointment and payment of the children’s attorney. In fact, the right of the children arises from there being a divorce proceeding and once such a proceeding is discontinued the children no longer have that particular right. Moreover, on April 15, 2016, the Mother paid her share of the children’s attorney fees, albeit late.
 The parties allegedly are living separate and apart under the same roof. However, even in the Father’s Motion for Provisional Measures dated May 24, 2016, he notes that there is no urgency regarding custody matters.
 On the particular facts of this case, there are no rights of the children being prejudiced by the Discontinuance although the Court understands the Father’s submissions that the Mother’s action, ultimately in cancelling the children’s appointment with their attorney, is confusing for the children.
 Should any new proceedings be started between the parties, the issues of custody, access, child support as well as legal representation can be dealt with fully at that time and the Discontinuance causes no prejudice to such potential future litigation. It will be for judges in that litigation to determine the persuasive value of any interim judgments already rendered at great expense to the parents in this litigation.
 The Father took his Motion to in part protect what he felt were the interests of the children. The timing of the Mother’s Discontinuance was perplexing and the issues raised by the Father have a more general interest to the public given the recent introduction of the present Code of Civil Procedure.
 In the circumstances, it is in the interest of justice that each parent pay their own costs of their respective motions.
FOR THESE REASONS, THE COURT:
 DISMISSES the Father’s Application to Strike & Dismiss Mother’s Discontinuance;
 DECLARES the Mother’s Discontinuance valid;
AS REGARDS THE MOTHER’S APPLICATION TO DISMISS THE FATHER’S APPLICATION TO DISMISS HER DISCONTINUANCE
 DECLARES that the Mother’s motion no longer has any purpose as a result of the Court’s above conclusions;
 DECLARES that the Father’s Partial Acquiescence to the Demand of Divorce has no legal effect in view of the Court’s above conclusions;
 ORDERS the Father and Mother to each pay their own legal costs for their respective motions.
Me Linda Hammerschmid
HAMMERSCHMID & ASSOCIATES
Attorneys for the Mother
Me Aline Kordzian
Me Georgia Chronopoulos
DEVINE SCHACHTER POLAK
Attorneys for the Father
Me Valentin Molpeceres
ME VALENTIN MOLPECERES
Attorney for the Children
Date of hearing:
April 20, 2016