2014 QCCA 178, 2014 QCCA 178

Prince c. Prince 2014 QCCA 178 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024009-136 ( 500-17-073178-124 ) MINUTES OF THE HEARING DATE: January 27, 2014 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. JACQUES J. LEVESQUE, J.A. APPELLANT COUNSEL LENNY PRINCE Mtre Lionel Rossdeutscher LIONEL ROSSDEUTSCHER & ASSOCIATES RESPONDENT COUNSEL VLAD PRIN CE Mtre Jamie Benizri Mtre Jeffrey Dalfen LÉGAL LOGIK INC.

Motion to dismiss an improper and dilatory appeal of a judgment rendered on November 5, 2013 by the Honourable Justice David R. Collier of the Superior Court, District of Montreal (Art. 501 (5) C.C.

P) Amended Motion for a safeguard order and suspension of execution (Art. 46 and 496.1 C.C.P.) Motion for authorization to amend safeguard order and suspension of execution (Art. 20 C.C.P.) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 11 h 36 Beginning of the hearing. 11 h 36 Submissions by Mtre Benizri 11 h 37 Submissions by Mtre Rossdeutscher. 12 h 13 Reply by Mtre Benizri. 12 h 21 Recess. 12 h 36 Resumption of the hearing. 12 h 36 Questions of the Court to Mtre Benizri. 12 h 43 Recess. 13 h 51 Resumption of the hearing. 13 h 51 By the Court: judgment – see next page. 13 h 53 Conclusion of the hearing.

Robert Osadchuck Clerk BY THE COURT JUDGMENT On the motion to dismiss the appeal:

[ 1 ] The Court is of the view that the petitioner has failed to demonstrate that the appeal is without reasonable prospect of success. The default judgment was rendered by Lacoursière J. on the basis of an Amended Motion to Institute Proceeding in Partition of the Immovable. The amended motion was not served on the appellant. In the circumstances, this could present an arguable ground of appeal: see Berthelette c. Autonum Presto Locations Inc. , 2012 QCCA 359 . [ 2 ] On this basis, we are of the view that the appeal should proceed to a hearing on the merits.

FOR THE AFOREMENTIONED REASONS, the Court: [ 3 ] DISMISSES the motion to dismiss, with costs. On the amended motion for a safeguard order and suspension of execution: [ 4 ] The appellant has appealed a judgment of the Superior Court (the Honourable David Collier) that dismissed his motion for revocation of a judgment ordering the sale and partition of an immovable rendered by Lacoursière J. on September 11, 2013. He seeks a safeguard order to suspend execution of the latter judgment. [ 5 ] By judgment rendered this day, the Court dismissed the respondent’s motion seeking

summary dismissal of the appeal of the judgment rendered by Collier J. [ 6 ] The circumstances do not allow for a formal suspension of execution of the judgment rendered by Lacoursière J., pursuant to the applicable rules of the Code of Civil Procedure , as that judgment has not been appealed. [ 7 ] However, it appears that the judgment appealed from (Collier J.) was rendered on an amended motion for revocation that had not been served upon the appellant. [ 8 ] The sole question before us is whether a safeguard order is appropriate in order to preserve the apparent rights of all parties. [ 9 ] The amendments to the Motion to Institution Proceedings in Partition that were not drawn to the attention of the appellant appear to be, in the main, tangential to the core of the dispute.

Sale and partition should proceed as ordered to allow the sale of the immovable and the payment of the debts secured thereby.

However, the execution of the judgment rendered by Lacoursière, J. is suspended in respect of the following conclusion, as it reflects what appears to be a material change compared to the original motion of which the appellant was aware: [14] DECLARES that the net proceeds of sale of the immovable located at [...], in the city of Lantier, after deductions being made for costs related thereto, shall be equally divided amongst the parties save and except for the following deductions to Defendant's share, to the benefit of Plaintiff's share: […] ii. an amount of $28,697.27, sauf à parfaire, representing the amount payable by Defendant with respect to the legal hypothec on the Immovable registered by Her Majesty, represented by the Minister of National Revenue.

FOR THE AFOREMENTIONED REASONS: [ 10 ] GRANTS the Amended Motion for a Safeguard Order and Suspension of Execution, in part, by suspending execution of the conclusion set forth in paragraph 14(ii) of the judgment rendered by Lacoursière, J., with costs to follow suit. FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. JACQUES J. LEVESQUE, J.A.