2022 QCCA 1719, 2022 QCCA 1719

Unofficial Translation of the Judgment of the Court Droit de la famille — 222215 2022 QCCA 1719 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030246-227 (500-12-341873-192) DATE: December 21, 2022 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. GENEVIÈVE COTNAM, J.A. S.L. APPELLANT – applicant v. J.T.

RESPONDENT – respondent JUDGMENT [ 1 ] The respondent seeks the dismissal of an appeal from a judgment of the Honourable Justice Karen Kear Jodoin of the Superior Court, District of Montreal, dated August 10, 2022, which granted a divorce to the parties and determined corollary relief, including the partition of the family patrimony and the dissolution of the matrimonial regime. [ 2 ] The respondent argues that the appeal is late. He adds that it has no chance of success.

Lastly, if he does not succeed in having it dismissed, he seeks a $4,000,000 suretyship in connection with the appeal. [ 3 ] In addition, at the hearing, the appellant orally applied for an extension of the time limit for appeal in the event that the Court were to find that the appeal is late. [ 4 ] For the reasons of Mainville, J.A., with which Healy and Cotnam, JJ.A. agree, THE COURT: [ 5 ] DECLARES that the instituted appeal is irregularly asserted; [ 6 ] GRANTS the appellant’s oral application for an extension of the time limit for appeal so that this irregularity can be corrected; [ 7 ] AUTHORIZES the appeal to proceed on the basis of the notice of appeal already in the Court’s record; [ 8 ] DISMISSES the application to dismiss the appeal; [ 9 ] DISMISSES the alternative application for a suretyship on appeal; [ 10 ] THE WHOLE without legal costs given the nature of the dispute.

ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. GENEVIÈVE COTNAM, J.A.

Mtre Diane Brais Mtre Georgette Charlotte Dahak-El-Ward BRAIS ET ASSOCIÉS For the appellant Mtre Pamela O’Reilly For the respondent Date of hearing: December 12, 2022 REASONS OF MAINVILLE, J.A. [ 11 ] The respondent seeks the dismissal of an appeal from a judgment of the Honourable Justice Karen Kear Jodoin of the Superior Court, district of Montreal, dated August 10, 2022.

That judgment, rendered following deliberations, grants a divorce to the parties, partitions the family patrimony, dissolves the matrimonial regime, dismisses the application for a spousal support order in favour of the respondent, establishes the terms and conditions of the parties’ support for their adult child, and dismisses the respondent’s application for a provision for costs. [ 12 ] In her notice of appeal, the appellant contests several of the orders and conclusions of that judgment in relation to the partition of the family patrimony and the dissolution of the matrimonial regime. [ 13 ] The respondent submits that the appeal is late.

He adds that it has no chance of success. Lastly, in the event that he does not succeed in having the appeal dismissed, he seeks a $4,000,000 suretyship on appeal. At the hearing of this application, the appellant orally applied for authorization to appeal beyond the time limit, should the Court determine that the appeal is late.

The time limits for appeal [ 14 ] The respondent argues that the appeal is irregularly asserted having regard to the rules in subsections 21(2) and 21(3) of the Divorce Act , [1] which provide that “[n]o appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect” and that “[n]o appeal lies from an order made under this Act more than thirty days after the day on which the order was made”. Based on this, the time limit for appeal from the judgment of August 10, 2022, expired on September 9, 2022.

And since the notice of appeal was filed on October 19, 2022, the respondent submits that the appeal is late. [ 15 ] The appellant, for her part, submits that

article 360 of the Code of Civil Procedure (C.C.P.) applies.

It provides that “[a] party intending to appeal a judgment is required to file a notice of appeal within 30 days after the date of the notice of judgment or after the date of the judgment if it was rendered at the hearing.” And since the notice of judgment in this case is dated September 19, 2022, she submits that the notice of appeal dated October 19, 2022, was filed within the prescribed time. [ 16 ] Which of the parties is correct? [ 17 ] While the question is simple, the answer is actually complex because, although marriage and divorce fall under federal jurisdiction, [2] matrimonial regimes and family patrimony come within provincial jurisdiction over property and civil rights in the province. [3] Furthermore, for the purpose of appeals, the Divorce Act differentiates between a judgment granting a divorce on the one hand, and orders made under that Act on the other.

The question has not been addressed directly since the coming into force on January 1, 2016, of the new Code of Civil Procedure ,

article 360 of which introduces the concept of notice of judgment for the first time. The time has come to answer it. [ 18 ] There are three types of appeal from a divorce judgment: (1) an appeal from a judgment granting a divorce; (2) an appeal from orders made under the Divorce Act ; and (3) an appeal from the conclusions of a judgment concerning matters that are not provided for in the Divorce Act but that arise from the parties’ divorce, such as the dissolution of the matrimonial regime and the partition of the family patrimony.

Let us examine each type of case in turn. [ 19 ] Subsection 21(1) of the Divorce Act provides for appeals under that Act , while subsection 21(6) adds that, except as otherwise provided, such appeals are asserted, heard and decided according to the ordinary procedure applicable to appeals to this Court: 21

(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act. 21

(1) Sous réserve des paragraphes (2) et (3), les jugements ou ordonnances rendus par un tribunal en application de la présente loi, qu’ils soient définitifs ou provisoires, sont susceptibles d’appel devant une cour d’appel.

(6) Except as otherwise provided by this Act or the rules or regulations , an appeal under this

section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.

(6) Sauf disposition contraire de la présente loi ou de ses règles ou règlements , l’appel prévu au présent

article est formé et instruit, et il en est décidé , selon la procédure habituelle applicable aux appels interjetés devant la cour d’appel contre les décisions du tribunal qui a rendu l’ordonnance ou le jugement frappés d’appel. [Emphasis added] (Soulignement ajouté) [ 20 ] It is on this basis that, in Droit de la famille — 121718 , [4] this Court held that the provisions of the Code of Civil Procedure pertaining to leave to appeal apply to interlocutory judgments made under the Divorce Act .

According to that judgment, by virtue of subsections 21(1) and 21(6) of the Divorce Act , appeals from interim orders under the Divorce Act are governed by provincial leave to appeal rules that determine whether an appeal has been properly asserted. In this regard, this Court followed the reasoning of the Court of Appeal for Ontario in Elgner v.

Elgner . [5] [ 21 ] The reasoning in Droit de la famille — 121718 rests on the premise that no contrary provision of the Divorce Act or of the rules or regulations thereunder precludes the application of provincial law rules that require leave to appeal from interlocutory judgments.

The reasoning also rests on the premise that the doctrine of federal paramountcy is not engaged in cases of overlap between a federal law (in this instance the Divorce Act ) and a provincial law (in this instance the Code of Civil Procedure ), provided that it is possible to comply simultaneously with both laws and that the provincial law does not frustrate the purpose of the federal law. [6] Gillese, J.A. of the Court of Appeal for Ontario stated as follows in Elsner v.

Elgner : [7] [49] As I have explained above, compliance with both s. 21 of the Divorce Act and s. 19(1) of the CJA [ Courts of Justice Act , R.S.O. 1990, c. C.43 ] is possible. A party may comply with both by applying for leave to appeal pursuant to s. 19(1)(

b) of the CJA . Furthermore, again for the reasons given above, s. 19(1) does not frustrate the federal purpose behind s. 21 of the Divorce Act . As the two provisions operate harmoniously, the doctrine of paramountcy is not engaged. [ 22 ] But this is not the case with the appeal deadlines set out in the Divorce Act , because that Act establishes clear and mandatory time limits for instituting an appeal. It is a matter of both substantive law and the Court’s jurisdiction.

Thus, these time limits for appeal must be complied with, and cannot be modified by provincial rules of procedure. [ 23 ] With respect to judgments granting a divorce, reference must be made to subsections 12(1) to 12(3) , sections 13 and 14 , and subsection 21(2) of the Divorce Act : 12

(1) Subject to this section, a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered. 12

(1) Sous réserve des autres dispositions du présent article, le divorce prend effet le trente et unième jour suivant la date où le jugement qui l’accorde est prononcé.

(2) Where, on or after rendering a judgment granting a divorce,

(2) Le tribunal peut, lors du prononcé du jugement de divorce ou ultérieurement, ordonner que le divorce prenne effet dans le délai inférieur qu’il estime indiqué, si les conditions suivantes sont réunies : (

a) the court is of the opinion that by reason of special circumstances the divorce should take effect earlier than the thirty-first day after the day on which the judgment is rendered, and

a) à son avis, le délai devrait être réduit en raison de circonstances particulières; (

b) the spouses agree and undertake that no appeal from the judgment will be taken, or any appeal from the judgment that was taken has been abandoned,

b) les époux conviennent de ne pas interjeter appel du jugement ou il y a eu abandon d’appel the court may order that the divorce takes effect at such earlier time as it considers appropriate.

(3) A divorce in respect of which an appeal is pending at the end of the period referred to in subsection (1), unless voided on appeal, takes effect on the expiration of the time fixed by law for instituting an appeal from the decision on that appeal or any subsequent appeal, if no appeal has been instituted within that time.

(3) Un divorce en instance d’appel à la fin du délai mentionné au paragraphe (1), sauf s’il est annulé en appel, prend effet à l’expiration du délai fixé par la loi pour interjeter appel de l’arrêt rendu sur l’appel ou tout appel ultérieur, s’il n’y a pas eu appel dans ce délai. 13 On taking effect, a divorce granted under this Act has legal effect throughout Canada. 13 À sa prise d’effet, le divorce accordé en application de la présente loi est valide dans tout le Canada. 14 On taking effect, a divorce granted under this Act dissolves the marriage of the spouses. 14 À sa prise d’effet, le divorce accordé en application de la présente loi dissout le mariage des époux. 21

(2) No appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect. 21

(2) Il ne peut être fait appel d’un jugement qui accorde le divorce à compter du jour où celui-ci prend effet. [ 24 ] Thus, the Divorce Act states that a divorce takes effect on the 31st day after the day on which the judgment is rendered, unless it

[ 24 ] Thus, the Divorce Act states that a divorce takes effect on the 31st day after the day on which the judgment is rendered, unless it is appealed before that date. This time limit is mandatory: the Divorce Act does not provide for any extensions for appealing a judgment granting a divorce; subsection 21(4) of the Act allows extensions only with respect to orders contemplated by subsection 21(3) , not with respect to judgments granting a divorce, which are referred to in subsection 21(2) . [8] [ 25 ] It is easy to see that the ability to appeal a judgment granting a divorce up to 30 days following a notice of judgment contemplated in

article 360 C.C.P . would not be possible without changing the structure of the Divorce Act . Indeed, given that a notice of judgment is generally issued later than the date of the judgment, computing the appeal time limit in accordance with

article 360 C.C.P . would allow a party to appeal a judgment granting a divorce after the divorce has become effective and enforceable under the terms of the Divorce Act —something that would make no sense in the context of that statute. [ 26 ] The Divorce Act does not only apply to grants of divorce to parties. It also provides for other interim or final orders. Without listing every type of order available under the Divorce Act , it is worth mentioning (

a) child support orders; [9] (

b) spousal support orders; [10] (

c) parenting orders; [11] (

d) contact orders; [12] and (

e) authorized relocations. [13] [ 27 ] The time limit for appealing such orders is 30 days after the day on which the order was made , unless the Court or a judge thereof extends that time. Subsections 21(3) and 21(4) of the Divorce Act state as follows in that regard: 21

(3) No appeal lies from an order made under this Act more than thirty days after the day on which the order was made, 21

(3) Il ne peut être fait appel d’une ordonnance rendue en vertu de la présente loi plus de trente jours après le jour où elle a été rendue.

(4) An appellate court or a judge thereof may, on special grounds, either before or after the expiration of the time fixed by subsection (3) for instituting an appeal, by order extend that time.

(4) Une cour d’appel ou un de ses juges peuvent, pour des motifs particuliers, et même après son expiration, proroger par ordonnance le délai fixé par le paragraphe (3 [ 28 ] This shows that the 30-day appeal time limit in the Divorce Act begins to run on the date the order is made. Once the time limit has expired, the order can no longer be appealed unless an extension is granted under subsection 21(4) of the Act . As a result, the time limit for appeal cannot be computed on the basis of the notice of judgment contemplated in

article 360 C.C.P., since the Divorce Act already provides for another appeal deadline that is inconsistent with the one in the Code of Civil Procedure . In this regard,

article 517 of the Civil Code of Québec ( C.C.Q. ) states that the rules in the Code of Civil Procedure apply to divorce applications only “to the extent that they are consistent with the Divorce Act of Canada .” Appeal deadlines are not. [ 29 ] That said, other conclusions can arise from a divorce judgment without necessarily being rendered under the Divorce Act .

For example, when a divorce become effective, it dissolves the spouses’ marriage. [14] This dissolution has important legal effects with respect to the former spouses’ patrimony—effects that are governed by provincial law and the Civil Code of Québec in particular. Specifically, pursuant to the Civil Code of Québec , the dissolution of a marriage by divorce results in (1) the dissolution of the matrimonial regime; [15] (2) the partition of the family patrimony; [16] and (3) the possibility that one of the former spouses will be granted a compensatory allowance. [17] Also,

article 453 C.C.P. states that, upon granting a divorce, the court is to dispose of issues related to the family patrimony as well as other patrimonial rights arising from the marriage, unless the circumstances warrant that they be addressed at a later date. [ 30 ] Accordingly, it is not unusual for a judgment granting a divorce to dispose of disputes that may arise in connection with the dissolution of the matrimonial regime or the partition of the family patrimony; courts may also provide for a compensatory allowance in appropriate cases.

Although such conclusions may be contained in a judgment granting the divorce and also containing orders rendered under the Divorce Act , they are governed by provincial law and in particular the Civil Code of Québec , not the Divorce Act . One might normally think that appeals from those civil law conclusions would be addressed and governed by the Code of Civil Procedure , including

article 360 C.C.P. [18] However, this Court and the Supreme Court of Canada have instead favoured a single appeal procedure in such cases, wherein the Divorce Act procedure trumps that in the former Code of Civil Procedure when the conclusions are part of a divorce proceeding and arise from a divorce. [ 31 ] Accordingly, in Droit de la famille – 223, [19] LeBel, J.A. (with whom Kaufman and Bisson, JJ.A. agreed), speaking for this Court, had to decide whether an appeal from the dispositions of a divorce judgment that declared a gift enforceable and ordered payment of a compensatory allowance—these being provincial law measures—were governed by the Code of Civil Procedure or by the Divorce Act . [ 32 ] After discussing the special constitutional context of marriage and divorce and the procedural problems they may entail, LeBel, J.A. concluded that the appeal time limits and appeal procedure set out in the Divorce Act must apply in such a case.

The point is to ensure that the appeal procedure is coherent and governed by the same rules in every case where the judgment being appealed has been rendered as part of a divorce proceeding and the contested measures arise from the divorce. Here are a few excerpts from the reasons of LeBel, J.A.: [20] [ translation ] Examining these problems leads me to favour another

interpretation which I find consistent with the applicable legislative provisions. This

interpretation assumes the legislator was aware of the legislative context in which it was legislating and wished to ensure it would be coherent. This presumption of coherence is less strong between federal and provincial laws. Nonetheless, one must assume there is some desire to harmonize the legislation. The wish for coherence also includes a desire to simplify the application of the law rather than propagate obstacles and procedural problems.

One can conclude that, by providing that compensatory allowances were to be granted at the same time as the court grants a divorce, the legislator expected that the existing procedure, that is to say, the procedure in the Divorce Act , would apply. It adopted by reference the procedure set out in that statute by using the vehicle of divorce as the way to recognize entitlement to a compensatory allowance where appropriate.

Despite the sometimes considerable financial stakes they involve and the fact that they are often central to the dispute, conflicts pertaining to compensatory allowances and the revocation of gifts were considered incidental to the divorce procedure. The provincial legislator accepted in advance that this procedure should govern the entire proceeding, onto which it grafted the procedures necessary for resolving patrimonial conflicts posed by compensatory allowances and claims concerning gifts. Litigants use the divorce procedure to dispose of these questions.

In so doing, they accept the procedural scheme of the Divorce Act . With this solution, the appeal time limit and procedure set out in that Act would also apply to all incidental matters and to the legal questions settled upon the granting of a divorce. There would be a single appeal pleading. It would be filed within the same time limit, and, if appropriate, the court could use the power in section 17(4) of the Divorce Act to grant an extension . Interlocutory orders would remain appealable in accordance with the Divorce Act .

A notice of appeal such as this one, which has been filed under the authority of the Divorce Act to seek the annulment of an order for the payment of a compensatory allowance and for the execution of gifts, would be deemed regularly asserted if filed with the Appeal Office within the timelines set out in the Divorce Act . (Emphasis added; citations omitted) [ 33 ] This approach was endorsed by the Supreme Court in Lacroix v.

Valois . [21] Gonthier, J., writing for a unanimous Court, stated as follows: [22] The respondent refers to a dispute in the Court of Appeal concerning the proper procedure in the case of an appeal from a Superior Court judgment disposing both of matters governed by the Divorce Act and matters governed by the Civil Codes. After a period of uncertainty […] the Court of Appeal disposed of this issue in a leading judgment rendered in Droit de la famille — 203 , [1985] C.A. 339 .

Stressing that the compensatory allowance takes the form of corollary relief when it is ordered in a divorce decree, LeBel J.A. held that the procedure set out in the federal Act was applicable to all incidental matters covered in divorce proceedings . I agree that the filing of the appeal inscription in accordance with the procedure specified in the Divorce Act is valid for all questions disposed of in a divorce decree, including the award of a compensatory allowance.

The possibility of incorporating the claim for a compensatory allowance into the divorce proceedings at the trial level is well recognized: the language of art. 559 C.C.Q . cannot be circumvented in this regard. It seems entirely natural for the same to be true of the procedure applicable to appeals.

It is clearly not appropriate to create a mandatory procedural distinction at the appeal level in dealing with questions which are closely related at trial. (Emphasis added) [ 34 ] It is evident that these decisions seek to simplify and uniformize appeals from a single judgment by avoiding situations where its conclusions are governed by two inconsistent appeal procedures.

Although they were rendered prior to the new Code of Civil Procedure , and the Divorce Act has since been amended several times, the principles laid out in those decisions remain valid and are binding on our Court. [ 35 ] Therefore, when the appeal procedures in the Code of Civil Procedure and the Divorce Act are inconsistent with each other, the latter must apply even if the question concerns a matter arising from the divorce, as long as the question is decided as part of a divorce proceeding and stems from the divorce, as is the case with dissolutions of matrimonial regimes, partitions of family patrimony or compensatory allowances.

Indeed,

article 453 C.C.P . explicitly authorizes courts to deal with these ancillary measures in the divorce judgment, thereby indicating, to quote the words of LeBel, J.A., that the [ translation ] “provincial legislator accepted in advance that [the Divorce Act ] should govern the entire proceeding, onto which it grafted the procedures necessary for resolving patrimonial conflicts posed by compensatory allowances”. [23] [ 36 ] The need for coherence is especially important in divorce cases.

It would make little sense for an appeal from spousal support, child support or parenting orders in a divorce judgment to be appealable within 30 days after being rendered, while the dispositions of the same judgment in relation to matrimonial regimes, partitions of family patrimony or compensatory allowances would remain appealable until a subsequent date.

Similarly, it would neither be coherent nor desirable for a judge sitting alone to be able to grant leave to appeal certain orders in a divorce judgment as permitted by subsection 21(4) of the Divorce Act , while other dispositions of the same judgment may be appealed only with the authorization of this Court. [24] [ 37 ] Coherence in the appeal process for divorce judgments is particularly important given that it is a matter of judicial notice that notices of judgment referred to in

article 360 C.C.P . are not issued in a uniform manner by the provincial authorities responsible for the administration of justice; the time it takes varies considerably, sometimes leading to confusion and various difficulties, notably with respect to the execution of the judgments. [25] In fact, in Martineau c. Ouellet , [26] the Court has already addressed at length some of the difficulties involved with notices of judgment. [ 38 ] Lastly, the appellant’s contention that Droit de la famille — 17554 [27] has answered the question of the time for instituting appeals in divorce cases by specifying that it begins on the date of the notice of judgment as provided in

article 360 C.C.P. should not be accepted. The only issue raised by the parties in that case was the calculation of the time for appeal provided in

article 360 C.C.P . , and specifically whether that time begins to run upon receipt of the copy of the judgment or on the date of the notice of judgment, a question that had already been resolved by the Court. [28] Thus, given that none of the parties were raising the issue of the calculation of the times for filing an appeal under the Divorce Act , that matter has not yet been decided by this Court.

Under the circumstances, that judgment cannot be regarded as binding precedent, since the issue of the time limit for appeal under the Divorce Act was not raised in it. [ 39 ] To sum up, in a divorce case, a single judgment can contain the grant of divorce and orders made under the Divorce Act , as well as conclusions in accordance with the Civil Code of Québec . The time limit for appealing the grant of divorce is that set out in subsection 21(2) of the Divorce Act .

The time limit for appealing the orders made under the Divorce Act is that set out in subsection 21(3) of that Act , and this Court or a judge thereof can extend that time limit in accordance with subsection 21(4) of that Act . As for legal conclusions made under the Civil Code of Québec as part of a divorce proceeding and arising from the divorce, the applicable time limit for filing an appeal is also that set out in subsection 21(3) of the Divorce Act , and it can be extended by this Court or a judge thereof in accordance with subsection 21(4) of the Divorce Act .

[ 40 ] In the case at bar, the conclusions of the judgment at first instance that are being appealed were rendered as part of a divorce proceeding and arise from the grant of divorce to the parties. The grant of the divorce itself is not appealed. Therefore, the time limit for appeal is the limit specified in subsection 21(3) of the Divorce Act . And since the judgment in issue here was rendered on August 10, 2022, the notice of appeal filed with the Court registry on October 19, 2022, is late, and the appeal is irregularly asserted.

Should leave to appeal be granted? [ 41 ] At the hearing, the appellant brought an oral application for leave to appeal that seeks to extend the time limit for appeal in the event that the Court finds that the appeal was instituted late. This application is governed by subsection 21(4) of the Divorce Act , which authorizes this Court or a judge thereof to grant it on special grounds. The application should be granted. Here is why. [ 42 ] The delay in filing the notice of appeal is easily explained by the appellant’s mistaken but very excusable belief as to the scope of

article 360 C.C.P. It should be noted that, on September 12, 2022, counsel for the appellant took pains to notify counsel for the respondent by email that her client intended to appeal the judgment. The respondent cannot reasonably contend that he was taken by surprise or that his rights were adversely affected by the delay incurred. [ 43 ] Furthermore, the proposed grounds of appeal raise several questions of mixed fact and law concerning the partition of the family patrimony and the dissolution of the matrimonial regime.

The property in question is of considerable value. [ 44 ] The appellant submits that the family patrimony was formed solely from her contributions and that the judge at first instance therefore erred in not ordering unequal partition. The appellant also argues that the judge erred in finding that the law applicable to the matrimonial regime was that of [of Country A] and not that of Mauritius. She also argues that, even if the law applicable to the matrimonial regime is the law [of Country A], the judge also erred in applying the criteria of that law relating to the dissolution of the said regime.

She further claims that the judge erred in his assessment of the value of several immovables and other significant property located [in Country A] and in Mauritius, among other places. And lastly, she states that there were other significant calculation errors. [ 45 ] These are—or on their face at least appear to be—serious issues that cannot be decided at this stage of the appeal proceedings without the evidence adduced at first instance being available to the Court.

A closer examination of the record is therefore warranted. [ 46 ] Since it is appropriate to extend the time limit for appeal, the application to dismiss the appeal should be dismissed for the same reasons. The application for a suretyship on appeal [ 47 ] The respondent has also asked that a $4,000,000 suretyship be provided by the appellant, but his application states no reasons warranting such a suretyship. [ 48 ]

Article 364 C.C.P . allows the court, “for good cause”, to subject an appeal to the provision of a suretyship to guarantee payment of the appeal costs and of the judgment amount if the judgment is affirmed. This standard is less stringent than it was under the former law, which required a “special reason” to order that security be furnished. That said, it would certainly not be appropriate to return to the days where a suretyship on appeal was the rule.

There must be good cause for the suretyship, though it is not necessary to show that a “special” or “exceptional” situation exists. [29] [ 49 ] In any event, an application for a suretyship on appeal must be supported by clear, specific and decisive evidence based on facts that can establish, at the very least on a balance of probabilities, that (

a) without the suretyship, the rights recognized by the judgment at first instance are in jeopardy; or (

b) the suretyship is necessary to guarantee the appeal costs. [30] [ 50 ] That is not the case here, as no evidence, by sworn statement or otherwise, has been adduced in support of the application for the suretyship.

Accordingly, this application should be dismissed. [ 51 ] For these reasons, I propose that the Court declare that the instituted appeal is irregularly asserted, grant the appellant’s oral application for an extension of the time limit for appeal so that this irregularity can be corrected, authorize the appeal to proceed on the basis of the notice of appeal that is already in the Court’s record, dismiss the application to dismiss the appeal, and dismiss the alternative application for a suretyship on appeal, the whole without legal costs, given the nature of the litigation. ROBERT M. MAINVILLE, J.A.