2021 QCCA 837, 2021 QCCA 837

Droit de la famille — 21903 2021 QCCA 837 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029457-215 (500-12-338148-186) DATE: May 17, 2021 BEFORE THE HONOURABLE FRÉDÉRIC BACHAND, J.A. K. O. APPELLANT – Defendant v. KA. M. RESPONDENT – Plaintiff JUDGMENT [ 1 ] Invoking

article 661 para. 2 C.C.P. , the respondent seeks an order providing for the provisional execution of certain conclusions of a divorce judgment rendered by the Superior Court. [ 2 ] In his notice of appeal, the appellant primarily takes issue with the trial judge’s dismissal of his claims for child support, for an alimentary lump sum for his own benefit as well as for a provision for costs.

The appellant further argues that the trial judge erred when she dismissed his claim seeking that the respondent’s deferred profit-sharing plan be partitioned equally, as an acquest, between the parties. [ 3 ] The respondent stresses that her application for provisional execution concerns for the most part other matters than those addressed in the appellant’s notice of appeal, namely the partition of the family residence — of which the parties are co-owners in equal shares, but which the appellant currently occupies along with the parties’ child —, the partition of the family patrimony, certain issues relating to the partition of the partnership of acquests, as well as a number of insurance matters.

She adds that she has recently been diagnosed with a multitude of serious medical issues and that she is facing financial and personal difficulties resulting from the fact that the appellant’s notice of appeal stayed the execution of the first-instance judgment. She also contends that the appeal is clearly unfounded and constitutes an abuse of process. [ 4 ] The respondent’s application is vigorously contested. The appellant first denies that the application deals for the most part with issues not in dispute in appeal.

He adds that the ordering of provisional execution is an exceptional remedy and that the record cannot support a finding that the “likely to cause serious or irreparable prejudice/ risque de causer un préjudice sérieux ou irréparable ” test set out in

article 661 para. 1 C.C.P. is met. * * * [ 5 ] As my colleague Justice Mainville recalled in 2017, relying on earlier judgments by Justices Gendreau and Morissette, “ il n’y a lieu de prononcer en appel l’exécution provisoire, même partielle, que si l’intimé démontre que, sans cette mesure, tous les droits ou certains d’entre eux, acquis à celui-ci par l’effet du jugement porté en appel, sont (et non pourraient être) sérieusement compromis. ” [1] [ 6 ] Justice Mainville also emphasized that, in order to succeed, the party applying for provisional execution must allege clear, specific and concrete facts, while also adducing evidence proving that the order sought is necessary to prevent the likelihood of serious or irreparable prejudice.

Vague, general or hypothetical allegations will not suffice. [2] [ 7 ] Moreover, as my colleague Justice Bich emphasized recently,

article 661 C.C.P. must be interpreted strictly to avoid undermining the principle according to which a properly initiated appeal stays execution of the judgment (article 355 C.C.P. ) [3] . * * * [ 8 ] Based on the record as it currently stands, I cannot find that the respondent will likely suffer serious or irreparable prejudice unless her application is granted.

The allegations contained therein are not sufficiently clear, specific and concrete, and the documents she filed do not provide a more detailed picture of the manner in which some of her rights pursuant to the judgment are seriously compromised by the appeal.

I also note that her general claim of financial hardship seems contradicted by the trial judge’s finding that she holds cash assets of approximately $175,000. [ 9 ] My review of the record has also left me with the impression that the respondent’s desire to obtain the provisional execution of parts of the judgment is, to a significant extent, grounded in her belief that the appeal is meritless and constitutes an abuse of process. I leave that issue to the panel of the Court that will rule on her application seeking the

summary dismissal of the appeal.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application for provisional execution, without legal costs given the nature of the dispute. FRÉDÉRIC BACHAND, J.A. Mtre Pamela O’Reilly For the Appellant Mtre Daniel Sirhan For the Respondent Date of hearing: May 14, 2021