2015 QCCA 1476, 2015 QCCA 1476

Droit de la famille — 152258 2015 QCCA 1476 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025554-155 (500-12-303475-101) DATE: SEPTEMBER 15, 2015 PRES IDING: THE HONOURABLE NICHOLAS KASIRER, J.A. ANNE-FRANCE GOLDWATER APPELLANT v. ER. B. RESPONDENT – defendant and E. W. IMPLEADED PARTY – plaintiff JUDGMENT [ 1 ] I am seized of three motions relating to an appeal from a judgment of the Superior Court, District of Montreal (the Honourable Pierre-C. Gagnon), rendered on July 22, 2015, which pronounced a divorce between Er. B. and E.

W.. *** [ 2 ] In a lengthy judgment that reflected a bitterly-fought dispute, the judge made various accessory orders relating to the custody of the children of the marriage and certain financial matters between the spouses, including the dissolution of the partnership of acquests. [1] He dismissed Ms W.’s claim for support in her own right and her request for a compensatory allowance. [ 3 ] The judge did not award costs to one or another of the parties but did order that Mr. B. pay certain experts' fees incurred by Ms W. and ordered, further, that Mr.

B. pay a provision for costs of $100,000 by August 31, 2015. (I understand from the parties that this amount has been paid). [ 4 ] The judge ordered a partial provisional execution notwithstanding appeal. He observed that

article 547 C.C.P. provides for provisional execution by operation of law in respect of the custody order, as well as the alimentary pension and allowance, but not in respect of the conclusions relating to the dissolution of the matrimonial regime or costs. He recognized that an appeal might place Ms W. in a precarious situation because she had not been awarded support in her own right. On this point, the judge wrote: [322] Dans ces circonstances, le Tribunal estime qu’en cas d’appel, Madame s’expose à un préjudice financier sérieux et qu’il existe une raison suffisante, au sens du deuxième alinéa de l’article 547 C.p.c., d’ordonner que Monsieur exécute provisoirement et en

partie seulement la condamnation nette de 1 157 914,93 $, par mensualités de 3 000 $ par mois, chacune payable le premier jour du mois à partir du 1 er août 2015. Cette solution équivaut pratiquement à maintenir le statu quo comme si la pension alimentaire de Madame n’avait pas été annulée à partir du 1 er août 2015. [ 5 ] The circumstances of the appeal and, by extension, of the motions before me as filed by Mtre Goldwater (appellant), Mr. B. (named respondent) and Ms W. (impleaded party), are unusual. What follows is an overview.

I The appe al and Mtre Goldwater’s motions [ 6 ] Neither of the ex-spouses has filed an appeal. The former legal counsel to Ms W., Mtre Anne-France Goldwater has, “personally” and in her own name, inscribed the judgment in appeal as a third party but, she contends, her appeal has no impact on the conclusions of the judgment as they relate to the parties. [ 7 ] Mtre Goldwater objects to certain language in the judgment, in particular the reasons for judgment, in respect of which, she says, the judge treated her unfairly.

Mtre Goldwater is of the view that the judge erred in fact and in law when he reprimanded her, without a formal request from one of the parties, without warning to her and without providing her an opportunity to be heard on point. [ 8 ] While the judge did not mention Mtre Goldwater in the conclusions of the formal judgment, she says he also erred in suggesting that, but for her conduct, a higher amount of provision for costs would have been awarded to Ms W.. (In paragraphs [305] and [306], the judge wrote that in ordinary circumstances he would have awarded Ms.

W. a provision for costs of $200,000 but, in view of the conduct of her counsel, the amount would be reduced to $100,000). In her amended inscription in appeal, Mtre Goldwater asks the

Court to strike paragraphs [306] to [317] of the judge’s reasons. [ 9 ] On August 24, 2015 – more than 30 days from the date of judgment but three days after the filing of the initial inscription in appeal – Mtre Goldwater presented a motion for leave to appeal de bene esse and for provision execution of the judgment to a judge in chambers of the Court. She subsequently recognized that the portion of the motion asking for leave de bene esse , because it was filed late, must be presented to a bench of the Court pursuant to

article 523 C.C.P. [ 10 ] She does however ask that a complete provision execution of the judgment be granted immediately in chambers, beyond the partial provisional execution ordered by the trial judge. In her amended motion for provisional execution, she also asks that the judge in chambers exercise his or her powers under

article 523.1 C.C.P. in favour of Ms W.. [2] She reiterates her position that the appeal does not concern the parties, who, themselves, have chosen not to appeal the judgment within the time limits prescribed by law. II Mr. B.’s motion for suspension [ 11 ] On September 2, 2015, Mr. B. filed a motion pursuant to

article 550 C.C.P. asking that provisional execution of the judgment be suspended. He argues that Mtre Goldwater’s appeal is improperly formed because, as a third party, she does not have the necessary standing to bring an appeal. Pending a resolution of that point, he wishes to preserve his rights to bring a cross-appeal. Noting that motions brought by Mtre Goldwater and Ms W. request provisional execution in an amount beyond that ordered by the judge, Mr. B. asks for suspension of execution of the judgment until a decision on the motion for leave to appeal de bene esse .

This motion, initially presented before my colleague Hogue, J.A., was postponed until September 11, 2015. III Ms W.’s motion for provisional execution notwithstanding appeal [ 12 ] On September 9, 2015, Ms W. filed a motion for provisional execution of the judgment, citing articles 2, 20, 46, 523.1 and 550 C.C.P. She is no longer represented by Mtre Goldwater.

The tenor of Ms W.’s motion is similar to that presented for provisional execution by Mtre Goldwater but she asks specifically for provisional execution notwithstanding appeal of paragraphs [336] and [340] of Gagnon, J.’s conclusions for judgment. (Paragraph [336] orders Mr. B. to pay Ms W. $1,157,914.93 on liquidation of the partnership of acquests; paragraph [340] orders him to pay $64,058.16 as experts' fees paid by Ms W.). Because the motion was filed late, Ms W. asks that the time limits for its filing, service and presentation be reduced. *** [ 13 ] While Mr.

B. states in his motion that he is of the view that Mtre Goldwater’s appeal is not validly formed, it is not within the jurisdiction of a judge in chambers, as I understand it, to rule on the matter. I shall proceed on the understanding that an appeal has been brought and that no cross-appeal or motion to dismiss the appeal has been filed as of this writing. On that basis, there is authority to suggest that I could, if I thought appropriate, decide matters relating to provisional execution notwithstanding appeal. [3] [ 14 ] I do have the explicit authority, however, to refer the motions made under

article 550 C.C.P. to a bench of the Court (see art. 550, para 2). In my view, this is the prudent course in these unusual circumstances. Mr. B. wishes to preserve his rights to present a cross-appeal. While Ms W., as represented by her new counsel, expresses no present inclination to file a cross-appeal, it cannot be ruled out, at least as theoretically. Moreover, even if cross appeals or motions to dismiss have not and may never been filed, I believe that it is prudent not to constrain, even indirectly, the free hand of the Court in addressing the unusual circumstances on this appeal by a third party. [ 15 ] The request that Ms W. has made pursuant to

article 523.1 should also be referred to the bench. I am mindful that the conclusions of the amended inscription in appeal do not seek to obtain an increase or decrease of the amounts ordered to be payable by the judge. But there is a connection, at least theoretically, between the amount awarded for provision for costs and the substance of the appeal and, as noted, I would prefer to leave the Court free to examine the whole, including matters relating to provisional execution. [ 16 ] In the absence of a firm agreement between Mr.

B. and Ms W. as to how their respective interests are affected by Mtre Goldwater’s appeal, I am of the view that the interests of justice are such that it is a wiser course of action, at this stage, to leave matters relating to articles 550 and 523.1 C.C.P. undecided until such time as a bench of this Court examines the whole of the circumstances. [ 17 ] I might have decided differently had the judgment of the Superior Court not considered carefully the impact of a possible appeal on the financial fortunes of Ms W..

But the judge did expressly consider this contingency: Gagnon, J.’s order for partial execution notwithstanding appeal of the award relating to the dissolution of the partnership of acquests is set forth in paragraphs [336] and [337] and explained in paragraph [322] quoted above. In particular, the judge provided for a mechanism that, in his view, would attend to Ms W.’s immediate alimentary needs while awaiting further developments.

This encourages me to use my discretionary power to refer the motions to the Court, mindful as I am that I should not decide matters that would upset the equilibrium that exists between and amongst the parties in the short term. [4] [ 18 ] That said, neither party should be required to wait more than necessary if, as Mtre Goldwater says, her appeal does not concern them personally.

For this reason, I propose to fix the date for the hearing before the Court at the earliest possible convenience for the Court rather than waiting for November 16, 2015, the date designated by Mtre Goldwater in her representations at the hearing. FOR THE AFOREMENTIONED REASONS , the undersigned: [ 19 ] REFERS the portion of Mtre Goldwater’s motion relating to provisional execution to the panel of the Court that will hear her motion de bene esse for leave to appeal; [ 20 ] REFERS Mr.

B.’s motion for suspension to the panel of the Court that will hear Mtre Goldwater’s motion de bene esse for leave to appeal referred to in the preceding paragraph;

[ 21 ] REDUCES the applicable time limits for the service, filing and presentation of Ms W.’s motion for provisional execution and REFERS her motion to that same panel of the Court; [ 22 ] FIXES the date of that hearing on October 8, 2015 at 9:30 a.m. in the Pierre-Basile-Mignault Courtroom. [ 23 ] Costs to follow suit. NICHOLAS KASIRER, J.A. Mtre Anne-France Goldwater Goldwater, dubé For the appellant Mtre Isabelle Duval Gayrard avocats For the respondent Mtre Robert Pancer Phillips Friedman Kotler s.e.n.c.r.l. For the impleaded party Date of hearing: September 11, 2015