2018 QCCA 1350, 2018 QCCA 1350

D.C. c. J.Y. 2018 QCCA 1350 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027708-189 (760-17-004638-170) MINUTES OF THE HEARING DATE: August 22, 2018 THE HONOURABLE MARK SCHRAGER, J.A. APPELLANT COUNSEL D. C. Mtre PAOLA TIRANARDI (Bardagi Sénéchal Inc.) RESPONDENT COUNSEL J. Y. Mtre MARIE-JOSÉE GINGRAS (Toulouse, Bienvenu & associé

s) DESCRIPTION: Application of the Appellant to suspend the provisional execution of a judgement rendered on June 15, 2018, by the Honourable Frédéric Bachand of the Superior Court, District of Beauharnois. (Art. 348, 660 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 11:43 Commencement of the hearing. Submissions by Mtre Paola Tiranardi. 12:02 Submissions by Mtre Marie-Josée Gingras. 12:11 Rebuttal by Mtre Tiranardi. 12:15 BY THE JUDGE: Judgment dismissing the application – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Appellant has filed a notice of appeal regarding the judgment rendered June 15, 2018, by the Superior Court, District of Montreal (the Honourable Frédéric Bachand), (notified July 4, 2018).

The judge dismissed Appellant’s motion in revocation of the judgment of the Superior Court of June 16, 2017 rectified on August 8, 2017 (the Honourable Nicole-M. Gibeau).

This judgment ordered the division of the residence co-owned by the parties and included the following conclusions: [4] LIQUIDATES at the total sum of $55,843.01 the child support arrears that the Defendant owes the Plaintiff for the years 2010 to 2016 inclusively, for the benefit of the children X and Y; [5] ORDERS the Defendant to Pay [sic] to the Plaintiff child support in the amount of $475.50 per month for the benefit of X only, the whole retroactively to January 1, 2017; [ 2 ] These conclusions are of an alimentary nature so that they are subject to provisional execution in virtue of Article 660 (1) C.C.P.

The Appellant moves before me for the suspension of that provisional execution. [ 3 ] By way of background and as taken from the Bachand judgment, Appellant had abandoned the family, did not contribute to household expenses nor the support of the children over a period of many years. His whereabouts were unknown to Respondent despite having engaged the services of an investigator. She obtained court permission, through her attorney, to serve the proceedings giving rise to the Gibeau judgment to Appellant’s Facebook page.

Appellant claims that he never received the proceedings as he seldom used the Facebook page and would not open an email from an unknown source (i.e. – Respondent’s attorney). [ 4 ] In order to obtain the suspension of provisional execution, a party must convince a judge of the Court of appeal of an apparent weakness in the judgment causing serious prejudice and that the balance of inconvenience favours the party seeking suspension.

Deference is due to the judgment of first instance, particularly where the provisional execution is provided by law and not the outcome of the exercise of judicial discretion. [1] [ 5 ] After a careful review, the Bachand judgment concludes that Appellant did not satisfy the requirements for revocation in virtue of

Article 346 C.C.P. The judgment is discretionary and based on an examination of the facts. I am shown no apparent weakness in the judge’s analysis (without expressing any opinion on the merits of the appeal). The judge concluded that service was adequate and the grounds of defence Applicant proposed were unlikely to succeed.

He notes that the award of arrears beyond three years has a foundation in Appellant’s reprehensible behavior of contributing nothing over the years without explanation while Respondent was put through hardship to provide for the children. [2] [ 6 ] Moreover, the prejudice alleged by Appellant is that “he cannot afford to pay the original support”. No substantiation is offered other than Appellant’s affidavit that all the facts alleged in the motion are true.

This rings hollow given the detailed facts in the Bachand judgment of a father not in contact nor contributing to the maintenance of his children over a number of years. [ 7 ] Accordingly, Appellant has not convinced me that the provisional execution should be suspended.

FOR ALL THESE REASONS, THE UNDERSIGNED: [ 8 ] DISMISSES the Application to suspend provisional execution, without legal costs given the nature of the case. MARK SCHRAGER , J.A.