2022 QCCA 766, 2022 QCCA 766

Droit de la famille — 22916 2022 QCCA 766 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030027-221 (500-12-309265-118) DATE: June 2, 2022 BEFORE THE HONOURABLE BENOÎT MOORE, J.A. A. H. APPLICANT – Defendant v. S. HA. RESPONDENT – Plaintiff JUDGMENT [ 1 ] The applicant filed a notice of appeal on April 26, 2022, in which he appeals against a judgment rendered by the Superior Court, District of Montreal (the Honourable Mr.

Justice Gregory Moore), on April 6, 2022, which dismissed his application to annul spousal support and ordered him to pay monthly support of $1,000 retroactive to August 1, 2020, less the amounts previously paid. [ 2 ] The judgment also declared the applicant’s application to annul spousal support to be an abuse of procedure and condemned him to pay $5,000 in damages. [ 3 ] The applicant now asks me to stay the provisional execution of that judgment, which provisional execution occurs as of right under art. 660(1) of the Code of Civil Procedure . [ 4 ] At the hearing, I questioned whether the appeal required leave and, consequently, whether I had jurisdiction to rule on the application for a stay.

Counsel for the applicant replied that, in her view, the appeal is as of right. [ 5 ] I disagree. [ 6 ] Pursuant to art. 30, para. 2(3) C.C.P. , an appeal from a judgment dismissing a judicial application because of its abusive nature requires leave from the Court. As our Court stated in Beauregard , this requirement seeks to [ translation ] “prevent the abuse from being perpetuated by the initiation of an appeal as of right”. [1] [ 7 ] At paragraph 39 of the judgment under appeal, the judge explicitly declared the applicant’s application to be an abuse of procedure, and he further condemned him to pay damages.

I therefore find that the present appeal requires leave. [2] Since no leave was sought, the appeal was improperly initiated. [ 8 ] Where the appeal is not properly initiated, a judge of the Court cannot order a stay of the provisional execution under art. 660 C.C.P. [3] Moreover, I would point out that art. 355 C.C.P. provides that only a properly initiated appeal stays execution of the judgment. [ 9 ] Admittedly, a judge of the Court may issue a safeguard order under art. 379 C.C.P. if a case is before the Court, which has been interpreted as including a situation in which an application for leave to appeal is pending and such an order is required during the period prior to leave being granted. [4] Once again, this is not the case in the matter at hand, no application for leave having been filed.

FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application, without legal costs given the nature of the case. BENOÎT MOORE, J.A. Mtre Muriel Librati TEITELBAUM LIBRATI For the Applicant S. Ha. Unrepresented

Date of hearing: May 30, 2022