2016 QCCA 1116, 2016 QCCA 1116

Droit de la famille — 161607 2016 QCCA 1116 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026132-167 (540-12-017930-124) MINUTES OF THE HEARING DATE: June 29, 2016 THE HONOURABLE MARIE-FRANCE BICH, J.A. APPELLANT ATTORNEY R. B. Mtre ANDREW H. HEFT (Me Andrew H. Heft, avocats-attorneys) RESPONDENT ATTORNEY A. E. Mtre NATHALIE RICHARD (Me Nathalie Richard) DESCRIPTION: Application of the appellant to stay the provisional execution of the judgment rendered on May 13, 2016 by the Honourable Pierre Journet of the Superior Court, District of Laval. (Article 660 in fine C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC-18

HEARING 15:22 Commencement of the hearing. Submissions by Mtre Heft. 15:41 Submissions by Mtre Richard. 16:01 Rebuttal by Mtre Heft. 16:03 Recess. 16:36 Resumption of the hearing. BY THE JUDGE: Judgment – See page 3. 16:43 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE: JUDGMENT [ 1 ] By judgment dated May 13, 2016, the Superior Court, District of Laval (the honourable Mr. Justice Pierre Journet) granted the divorce of the parties and issued various orders regarding child support, spousal support, partition of the family patrimony and partnership of acquests.

He also ordered the following: [169] CONDAMNE Monsieur à payer une provision pour frais à Madame, pour une somme de 50 000 $. [ 2 ] The appellant filed a notice of appeal on June 7, 2016. [ 3 ] The respondent then proceeded to provisionally execute the conclusion of the judgment relating to the provision for costs and seized some of the appellant's assets. The appellant now seeks the stay of this provisional execution. [ 4 ] The applicable rules are summarized as follows in Widden v.

Landry [1] : [2] According to art. 660, first para., sub-para. 1, C.C.P. , provisional execution in matters of child or spousal support, child custody (including access rights) and parental authority is the rule. A stay may be ordered, according to the last paragraph of art. 660, but remains exceptional.

The Court will indeed apply this provision strictly, with caution, considering the presumption of validity that judgments of a court of first instance enjoy and considering also that granting stays too liberally would thwart the very purpose of the first paragraph of art. 660 C.C.P. 1 [3] Stay will therefore be granted only when the following cumulative conditions are met: 1° apparent weaknesses in the judgment appealed from or a serious question of law to be discussed, 2° risk of a serious and irreparable prejudice that must urgently be avoided, and 3° balance of inconvenience in favour of the stay.

In family matters, due to the vast discretionary powers of the trial judge and the exacting standard of appellate review, 2 provisional execution will be stayed in the most exceptional of circumstances only. In custody and access rights matters, the interest of the child will be primary in assessing the above-mentioned conditions. [4] Such were the rules and principles established by the Court under art. 547 and 550 of the former Code of Civil Procedure 3 and which are applicable to the similar regime created by art. 660 and 661 C.C.P. 4 1 In general, see: Ostiguy c.

Labrecque , 2016 QCCA 830 , paras. 2-6 . 2 See for instance: Droit de la famille — 16326 , 2016 QCCA 290 , para. 2 . 3 See for instance: Droit de la famille — 152117 , 2015 QCCA 1381 , paras. 8-13 ; Droit de la famille — 151864 , 2015 QCCA 1253 , paras. 3-5 .

4 See for instance: Rice c. Agence du revenu du Québec , 2016 QCCA 1077 ; Droit de la famille — 161334 , 2016 QCCA 968 ; Ostiguy c. Labrecque , supra , fn. [ 5 ] The same rules apply to the stay of the provisional execution of a provision for costs, which is an alimentary allowance within the meaning of art. 660 C.C.P. * * [ 6 ] The appellant's application does not fulfil the conditions under which the provisional execution of the judgment could be stayed. [ 7 ] Firstly, there are no apparent flaws in the judgment insofar as the provision for costs and other support orders are concerned.

The judge wrote that: [131] Madame réclame une provision pour frais de 53 124 $, étant le reliquat des honoraires extrajudiciaires de 77 000 $ qu'elle a dû encourir pour obtenir la garde des enfants, une pension alimentaire, des jugements intérimaire, provisoire et final de divorce. [132] La majeure

partie des honoraires encourus découlent d'une bataille juridique continuelle, obligeant la demanderesse à recourir aux tribunaux devant le refus de Monsieur de s'acquitter de ses obligations. [133] La provision pour frais est de nature alimentaire et Monsieur a les moyens financiers requis pour payer de tels frais. [ 8 ] The appellant was severely criticized by the trial judge, who did not find him credible for reasons that appear entirely convincing, and the more so in light of the documents (including some prior judgments) filed by the parties for the purposes of the hearing of the present application.

Considering the trial judge's findings, the above-mentioned conclusions are not surprising and, contrary to the appellant's claim, have little to do, as such, with his failure to provide audited financial statements in order to establish his worth and income. [ 9 ] Secondly, the appellant has not established that he will suffer an irreparable prejudice if the judgment is provisionally executed in this regard.

His motion and affidavit are silent on that issue and the explanations advanced by counsel do not demonstrate such prejudice. [ 10 ] Thirdly, the balance of inconvenience clearly weighs in favour of the respondent. FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 11 ] DISMISSES the application to stay provisional execution, with legal costs in favour of the respondent. MARIE-FRANCE BICH, J.A.