2019 QCCA 1304, 2019 QCCA 1304

Droit de la famille — 191531 2019 QCCA 1304 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028441-194 (760-04-014387-196) MINUTES OF THE HEARING DATE: July 25, 2019 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. PETITIONER COUNSEL N. A. Mtre Shay Joseph Mergui ( Mergui avocats ) Absent RESPONDENT COUNSEL M. D. Mtre Deandra Goldberg Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on June 27, 2019 by the Honourable Anne Jacob of the Superior Court, District of Beauharnois.

Appellant’s application to suspend the provisional execution of a judgment (s. 660 C.C.P. ) . Respondent’s Application to reduce the delays of presentation of the appellant’s Application for leave to appeal and to suspend the provisional execution of a judgment.

Clerk: Stephane Robinson Courtroom: RC-18 HEARING 9:35 Continuation of the hearing held on July 23, 2019. Counsel is exempted from attending the hearing. BY THE COURT : JUDGMENT – SEE PAGE 3. (

s) Stephane Robinson Clerk BY THE JUDGE JUDGMENT [ 1 ] The Petitioner is seeking leave to appeal of an interim judgment rendered orally by the Superior Court on June 27, 2019. He is also asking for the suspension of the provisional execution of the judgment in accordance with

article 660 C.C.P. [ 2 ] The undersigned accepted to hear both applications one week prior to their original date of presentation, at the written request of the Respondent who is currently residing in a women’s shelter with her two minor children (currently aged 10 and 12) and claims that it is urgent and in the interest of justice that the applications be heard as soon as possible. [ 3 ] The Respondent consented to advance the presentation of his applications accordingly. [ 4 ] The interim judgment is reproduced below: CONSIDERING that the parties were in a de facto relationship for six (6) years; CONSIDERING that Plaintiff states that Defendant acted as the children’s father; CONSIDERING that Plaintiff states that the Defendant often told the children you are my children and also referred to the children as my kids with everyone around him; CONSIDERING that Plaintiff also played the role of principal provider for the family; CONSIDERING that the parties had started together the company A; CONSIDERING that the parties signed an Agreement on April 2nd, 2019;

CONSIDERING that Plaintiff states that Defendant made threats to break her neck; CONSIDERING that Defendant was arrested and charged of uttering death threats to Plaintiff; CONSIDERING that it is not possible for Plaintiff and the children to continue to stay in the house with Defendant; CONSIDERING that Plaintiff and the children are currently residing at [Organism A], a women’s shelter in Town A; CONSIDERING that it is not possible, as well, for Plaintiff to continue to work at [Company A]; CONSIDERING that Plaintiff states that she is not able to stay in the house and work for the company because of the Defendant’sconduct; CONSIDERING the principles stated in the case C.R. v.

J.B., (QC CS); CONSIDERING the difference in the respective incomes of the parties; CONSIDERING the best interest of the children; CONSIDERING the emergency situation; FOR THESE REASONS, THE COURT: GRANTS Plaintiff exclusive use of the family home as well as the contents therein located at [...] in Town B with the children; ORDERS Defendant to continue to pay to Plaintiff an amount of $500 on a weekly basis; ORDERS Defendant to pay Plaintiff a provision for cost in the amount of $5 844.87 within a delay of ten (10) days from the judgment; ORDERS Defendant to pay the expenses related to the family’s home namely the monthly rent and electricity; ORDERS Defendant to leave the house within a delay of fifteen (15) days; THE WHOLE to be valid until December 19, 2019; WITHOUT COSTS. [5] The appeal of an interim judgment is subject to prior leave in accordance with

article 31 C.P.P. Leave will only be granted wherethe judgment rendered in the course of a proceeding determines part of the dispute or causes irremediable injury to one party. Suchconditions will be applied in a strict manner in the context of family matters, not only because of the limited duration of the order and the

fact that the debate may become moot by the time the appeal is heard, but also because such appeals will generally cost the parties additional expenses, emotional anguish and delay ( Droit de la famille − 123147 , 2012 QCCA 1966 ). As a result, leave to appeal of an interim order will only be granted exceptionally, where the Petitioner is able to demonstrate that the judgment is seriously flawed or that there is an urgency to avoid an important prejudice being caused. [ 6 ] In this case, the Petitioner argues that the judgment is seriously flawed, given that the trial judge erred in the

interpretation of the agreement which served as a basis for her judgment, without the benefit of a hearing on the merits. He also claims that the judgment as rendered will be beyond repair if it is allowed to stand. [ 7 ] As far as the flaws of the judgment are concerned, the Petitioner claims that the judge erred in granting the Respondent the exclusive right of use of the family home where the parties were never married and the children were not born issue of their union.

Moreover, the agreement signed by the parties provided at best a shared use of the “family home” for a period of 6 months, which became impossible as a result of the Respondent’s decision to move out to a women’s shelter with her children and the criminal complaint that she filed against the Petitioner in June 2019. [ 8 ] Moreover, the judge erred in ordering him to pay the expenses related to the house, namely the monthly rent and electricity without justification and without having given him the opportunity to address the issue of expenses. [ 9 ] According to the Petitioner, the judge also erred in awarding the Respondent spousal support in the weekly amount of $500, where the parties were not married and where the April agreement only entitled her to a “clear salary to oversee accounting management at [Company A]”, a position which she has not fulfilled following her filing of a criminal complaint against the Petitioner in June 2019. [ 10 ] In addition, the Petitioner claims that the judge erred in granting the Respondent a provision for costs of $5 844.87 in the absence of any valid right to child or spousal support. [ 11 ] Finally, he argues that the judgment was rendered for an unreasonably lengthy period of 6 months, until December 19, 2019, thus rendering the equivalent of a final judgment, without the benefit of a hearing. [ 12 ] The judgment rendered by the trial judge is based on the following agreement signed by the parties on April 2, 2019: This present contract is to confirm and validate that me N.

A., born on [...] 1966 and M. D. born on [...] 1986 have been dating for over 5 years now, living together for the past 3 years as common law partners. We have been sharing the cost of living and duties related to work. Living with us are 2 children, X born on [...] 2008 and Y born on [...] 2009 whom I’ve become their father figure by implementing rules, disciplining and of course giving them love and affection. We also have a dog, a Great Dane called Luna.

This contract confirms that even if the lease of the house where we are living is to my name only, we both (including the children mentioned above and the dog) legally and willingly reside at [...] in Town B, QC, [...] making this our family home. I also confirm that M. D. owns the Dodge Journey 2010 that is currently under my name. She has paid it off after 5 years of monthly payments and I will transfer it to her name in the weeks to come.

In the best interest of the children, in the case we would want to end our relationship, there will be no stress whatsoever about living together for at least 6 months so we could both make arrangements for living, since we are both living equally in the same property. The children will not be stressed out nor will they be solicited and turned against one another, in any case. I also agree to give M. D. a clear salary of $500.00 weekly for a minimum of 6 months, starting now to oversee accounting management for [Company A].

We both agree to these terms for the best interest of the children and our family. [ 13 ] While the parties were never married and the Respondent’s children were not born issue of the parties’ common law union, the Petitioner did recognize in the agreement that he played a father figure to the Respondent’s minor children.

He expressly allowed the Respondent to live in the family home with the children for a period of six months in the best interest of the children, to enable a proper transition in the event of a separation. [ 14 ] The judgment simply applies the agreement signed by the parties by allowing the Respondent to remain in the house until December 19, 2019, while composing with the unpleasant turn of events resulting from the Petitioner’s death threats against the Respondent and her subsequent criminal complaint against him.

This has obviously made it impossible for the parties to continue to share the “family home” and forced the Respondent to move out, into a shelter with her two minor children.

It also made it impossible for the Respondent to continue working for the Petitioner’s company, [Company A], in exchange for a weekly salary of 500 $. [ 15 ] In this particular context, the Petitioner can hardly use the change of circumstances which he triggered to contest the Respondent’s right to remain in the home for the duration of the term set out under the agreement or her right to claim payment of the 500 $ owed weekly. [ 16 ] The Petitioner fails to demonstrate any serious flaw in the interim judgment.

Furthermore, aside from claiming that the situation will be beyond repair if the conclusions of the judgment are allowed to stand and that a new woman and her two children, who moved into his home in the last month following the separation of the parties, stand to suffer from his eviction (and theirs, as well), the Petitioner has not filed any evidence to demonstrate that he is likely to suffer serious and irreparable harm as a result of the order. His arguments are hardly compelling under the circumstances.

[ 17 ] For these reasons, I will not grant leave to appeal of this judgment. [ 18 ] As a result, there is no need to address the application to suspend the provisional execution of this judgment. FOR THESE REASONS, THE UNDERSIGNED: [ 19 ] DISMISSES the Application for leave to appeal of an interim judgment; [ 20 ] WITHOUT legal costs; [ 21 ] DECLARES that the Application to suspend provisional execution is without object. GENEVIÈVE MARCOTTE, J.A.