2012 QCCA 1545, 2012 QCCA 1545

Droit de la famille — 122342 2012 QCCA 1545 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022822-126 (500-12-309075-111) DATE: September 4, 2012 PRESIDING : THE HONOURABLE ALLAN R. HILTON, J.A. R. B. APPELLANT – Defendant v. E. J. RESPONDENT – Plaintiff and H. B. IMPLEADED PARTY – Impleaded party and [COMPANY A] [COMPANY B] THE TRUSTEES OF THE R. B. FAMILY TRUST THE TRUSTEES OF THE B. FAMILY AIM INVESTMENT TRUST THE TRUSTEES OF THE H. B. FAMILY TRUST REGISTRAR OF THE LAND REGISTRY OFFICE OF THE REGISTRATION DIVISION OF TERREBONNE IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] R.

B., who is in the midst of divorce proceedings with E. J., seeks to suspend the provisional execution of a judgment of the Honourable Mr. Justice Daniel H. Tingley rendered on June 21, 2012 that adjudicated competing motions for provisional measures. The hearing that gave rise to the judgment under appeal lasted 11 days. [ 2 ] The criteria that govern the determination of the motion before me are not in dispute.

They were conveniently summarized by Morisette, J.A. in Droit de la famille – 091953 [1] as follows: [1] Les critères sans cesse réitérés par les juges de la Cour pour accorder une suspension de l'exécution provisoire d'un jugement visé par le paragraphe (

g) de l'article 547 C.p.c. sont assez fermement fixés par la jurisprudence. La

partie qui fait une telle demande doit : • premièrement, établir l'existence d'une faiblesse apparente (parfois qualifiée d'évidente) dans le jugement porté en appel et dont elle veut faire suspendre l'effet; • deuxièmement, démontrer l'existence pour elle d'un préjudice important (parfois qualifié d'irréparable) s'il était donné exécution à ce jugement; et • troisièmement, démontrer que la prépondérance des inconvénients la favorise. [ 3 ] The parties were married in 1991 under the regime of partnership of acquests.

They are the parents of two daughters, who are 16 and 14 years old, and one son who is 12 years old. They have been separated since January of 2011, but the children have been living with their mother in the residence in which the family lived prior to the separation. [ 4 ] The divorce proceedings were begun in May of 2011. Gibeau, J. rendered an interim order on September 19 that was

successively renewed until the date of the judgment of Tingley, J. on provisional measures.

That order is in the following terms: Le Tribunal confie à la demanderesse la garde des enfants X, Y et Z; Accorde au défendeur des droits d'accès d'une fin de semaine sur deux du vendredi après l'école au dimanche 20h, de même qu'une soirée pendant la semaine de 17h30 jusqu'à 19h30, les parties pouvant évidemment convenir entre elles de tout autre droit d'accès relativement aux enfants; Accorde à la demanderesse l'usage de la résidence familiale sise au [...], [arrondissement A], à l'exclusion du défendeur; Donne acte au défendeur de son engagement d'assumer les dépenses de la résidence familiale soit : les taxes municipales et scolaires, le chauffage, l'électricité, l'assurance habitation, le jardinier, l'enlèvement de la neige, les coûts du système d'alarme, le téléphone de base et l'Internet, le câble et l'entretien usuel lesquels totalisent une somme d'environ 2,916$ par mois; Donne acte au défendeur de son engagement à assumer les frais de scolarité privée des enfants au [College A] incluant les frais d'inscription, les frais de scolarité, les uniformes, les activités, les livres et les autres frais exigés par l'institution scolaire représentant un montant de 5,417$ par mois; Ordonne au défendeur de verser à la demanderesse pour le bénéfice des enfants une pension alimentaire au montant de 6,000$ par mois à compter de ce jugement; Ordonne au défendeur de verser à la demanderesse pour elle-même une pension alimentaire de 2,500$ par semaine à compter de ce jugement; Ordonne au défendeur d'assumer le coût de location de la voiture Mercedes GL 320 utilisée actuellement par la demanderesse; Donne acte au défendeur de son engagement de maintenir son plan d'assurance médicale et dentaire pour le bénéfice de la demanderesse et des enfants, de même que l'assurance-vie qu'il détient actuellement; Ordonne au défendeur de verser à la demanderesse une somme de 30,000$ dans les 15 jours de ce jugement, le juge du mérite déterminera alors s'il s'agit d'une avance pour la demanderesse sur le partage de la Société d'acquêts ou d'une provision pour frais.

Le tout sans frais. [ 5 ] It will be seen that this judgment obliged Mr. B. to pay child support and special expenses totalling $137,004 per year, plus spousal support of $130,000 per year, as well as the various other expenses he either undertook or was ordered to pay. [ 6 ] The judgment of Tingley, J. increased Mr.

B.'s basic financial obligations to support his wife and children to a significant extent, as follows: • basic child support was adjusted to $175,144 per year, in addition to the special expenses he undertook to pay for the children's private school education and related costs, plus any orthodontic or medical expenses, upon proof of their cost (which would be at a minimum of another $65,004 per year pursuant to the order of Gibeau, J.); • spousal support was adjusted to $156,000 per year. [ 7 ] Tingley, J. also ordered Mr.

B. to pay arrears of child support of $51,172 and arrears of spousal support of $13,350 from January 1 to June 30, 2012 for a total of $64,672 in principal, plus interest and the additional indemnity provided by law, the whole within 30 days of his judgment. Finally, Mr. B. was ordered to pay a provision for costs of $250,000, also within 30 days of the judgment. [ 8 ] I was informed at the hearing that Mr. B. had complied with the interim order of Gibeau, J., and that he has continued to do so since the judgment of Tingley, J.

He contends, however, that the suspension of provisional execution should be ordered, essentially because the learned judge mischaracterized an extraordinary dividend of $1,900,000, and determined Mr. B.'s means based on "hypothetical revenues and wishful thinking that was not supported by any of the evidence before him." [ 9 ] The result of these errors, he says, is that he effectively has to turn over his pay cheque from employment to Ms. J., leaving him nothing on which to live. The evidence shows, from his perspective, that his gross salary for 2012 is $565,756,leaving him with $307,617 net after taxes.

That amount is already less than the basic annual child support and spousal support he has been ordered to pay, without even taking account of the payment of all the special expenses for the children as well as expenses to maintain the family residence to which he has been made subject. Any other assets he may have that would allow him to satisfy other obligations created by the judgment, such as the payment of a provision for costs, have been seized by Ms. J.. [ 10 ] I will deal with the two major errors attributed to the judgment in turn. [ 11 ] Mr.

B. notes that Tingley, J. treated the $1,900,000 dividend at times as income (paragraphs 12, 37, 39 and 44 of the judgment) and at other times as an asset (paragraphs 16, 17 and 18). He contends that the payment of this dividend was a one-time event arising out of the sale of his shares in a holding company. It therefore should have been excluded in the calculation of his annual income, since it is non-recurring. [ 12 ] For the purpose of the application of the Quebec Child Support Regulation in 2012, Tingley, J. fixed Mr.

B.'s 2011 income as being at least $2,500,000, consisting of salary of $549,000, the $1,900,000 dividend and the indeterminate value of vacations from which Mr. B. benefited as the result of the largess of his wealthy father, by whom he is employed. [ 13 ] Although on its face Mr. B.'s contention appears plausible, especially as it relates to the non-recurring nature of the dividend,

the circumstances that led to the sale of his shares in a holding company and the declaration of the dividend appear to be somewhat murky. He says in his motion that he was forced to initiate the transaction as it was discovered he had been illegally charging expenses to his employer, a company that his father controls. These falsely charged expenses financed the parties extravagant lifestyle, and thus they were in reality a debt of the partnership of acquests.

The sum generated by the sale was used in part to reimburse the debt to the extent of $1,300,000, while the balance was required to pay the taxes owing from the sale of the shares. [ 14 ] Mr. B.'s motion provides no details about the illegal expenses he says he charged, nor the circumstances of the discovery of the illegality.

If there was evidence on this subject adduced at trial, Tingley, J. did not discuss or analyze it, which suggests to me he gave no credence to the explanation for the dividend. [ 15 ] Moreover, it is not without significance that the sale of shares occurred contemporaneously with others involving the R. B. Family Trust, of which Mr. B. is a beneficiary and trustee. Tingley, J. describes these transactions in his judgment as being divestitures for no apparent or little consideration. Counsel for Ms. J. points out as well that they all took place shortly after her client advised Mr.

B. of the impending initiation of divorce proceedings. [ 16 ] On this branch of Mr. B.'s argument, I conclude that he may indeed have plausible arguments that could result in the Court, at the hearing on the appeal, removing the $1,900,000 from the calculation of Mr. B.'s 2012 income for the purpose of determining his child support and spousal support obligations. That being said, I cannot say that Mr.

B.'s position is sufficiently persuasive in the light of other factors Tingley, J. took into account to characterize the alleged error he committed as one of "apparent weakness" that would justify the order of provisional execution being suspended. [ 17 ] As far as Mr. B.'s second ground to obtain the order he solicits is concerned, it depends on an assessment of the entirety of the evidence. It is not the role of a judge in chambers to whom an application to suspend provisional execution is presented to engage in such an exercise.

The alleged "apparent weakness" must appear from the judgment itself taking into account the clarity and correctness of the grounds invoked to suspend provisional execution. [ 18 ] In this respect, the trial judge did observe, correctly in my view, that Mr. B.'s wealthy father has no legal obligation to support Ms. J. in the context of these divorce proceedings. Mr. B.'s father has made it plain to her that he will do what he can to ensure that she does not profit from the breakdown of the marriage. Tingley, J. considered Mr. B. to be a puppet who was susceptible to being manipulated by his father.

His father, however, is essentially his employer, with all of the consequences that relationship entails as far as the amount of annual salary and the granting of discretionary bonuses is concerned. [ 19 ] It is apparent that Tingley, J. was convinced that Mr. B.'s post-separation lifestyle was inconsistent with the amount of his salary, and that his father was continuing to finance that lifestyle, albeit in a more limited way than in the past. Indeed, as he also observed, the parties "will have to trim their sails in order to conform to what (Mr.

B.'s father) is prepared to provide them." No such trimming appears to have yet occurred to any significant extent, on either side of the rudder. [ 20 ] It may well be that a review of the entirety of the record will validate Mr. B.'s contention that the only income that should be taken into account to determine the extent of his financial obligations to Ms. J. and their children is his annual salary and whatever other earnings he may actually receive, as opposed to hypothetically receive.

That review, however, properly belongs to the panel of the Court hearing the appeal, and not to me as a judge in chambers. [ 21 ] I note in this respect that the parties have agreed to an expedited hearing of the appeal, which will allow Mr. B.'s arguments to be examined on their merits within a short delay. [ 22 ] I therefore dismiss the motion to suspend provisional execution, with costs to follow the outcome of the appeal. ALLAN R. HILTON, J.A. Mtre Guylaine Duplessis DUPLESSIS ROBILLARD AVOCATS INC. For the appellant Mtre Miriam Grassby GRASSBY & ASSOCIÉS Mtre Neil Stein STEIN & STEIN INC.

For the respondent Mtre Karim Renno IRVING, MITCHELL, KALICHMAN For the impleaded party H. B. Date of hearing: August 28, 2012