r v. Alberta, 2017 QCCA 541

Droit de la famille — 17625 2017 QCCA 541 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OFMONTREAL No: 500-09-026484-162 (505-04-014782-064) DATE: March 27, 2017 IN THE PRESENCE OF THE HONOURABLE ROBERT M. MAINVILLE, J.A. M. J. APPLICANT - APPELLANT - Plaintiff v. Z. Z. RESPONDENT - Defendant JUDGMENT [1] M. J. (the “Applicant”) seeks an order to stay (

a) the judgment dated November 3, 2016 of the Superior Court, District ofLongueuil (the Honourable Chantal Tremblay) (the “Trial Judgment”) cancelling for the future and retroactively to September 30, 2011the spousal support she had until then been receiving from the Z. Z. (the “Respondent”), and (

b) the judgment of this Court datedFebruary 10, 2017 dismissing summarily her appeal from the Trial Judgment (the “Appeal Judgment”). [2] The Applicant intends to seek leave to appeal to the Supreme Court of Canada. She submits that a stay pending her leaveapplication is necessary to avoid irreparable harm.

Section 65.1 of the Supreme Court of Canada Act, 1985 R.S.C., c. S-26 allows a judgeof this Court to grant such a stay. The criteria for such a stay are well-known and need not be repeated here: Baier v. Alberta, 2006 SCC38 , [2006] 2 S.C.R. 311. [3] In this case, the effect of the Trial Judgment is not only to put an end to spousal support for the Applicant, but also to have herreimburse to the Respondent the spousal support she received in the past 5 years, specifically from September 30, 2011 to November 3,2016. The Applicant submits that the amount she owes as a result of the Trial Judgment exceeds $100,000.

This is a reasonable estimatein light of the fact that spousal support had been set by the Ontario Superior Court of Justice at $1,500 monthly starting October 1, 2007.The Applicant also submits that the stay is urgent since her bank account would have recently been seized (“frozen” in her words) tosatisfy the Trial Judgment. [4] Nothing in the record before me shows that the Applicant has $100,000 readily available to her or that she can easily accesssuch an amount. Moreover, the Respondent has not showed what special prejudice he would suffer if past spousal support payments werenot immediately returned to him.

His total income for 2014 exceeded $100,000 and there is no evidence that his income stream has sincebeen reduced. [5] I am therefore satisfied that the Applicant will suffer irreparable harm and that the balance of inconvenience is in her favour. [6] The Respondent however challenges the stay on the ground that the Applicant’s leave application to the Supreme Court ofCanada is doomed to fail. Indeed, at the hearing on the stay application, the Applicant had some difficulties cogently articulating beforeme the arguments she intends to raise in the Supreme Court of Canada.

The Applicant may therefore require assistance in supporting herapplication for leave to the Supreme Court of Canada and she would be well advised to consult a lawyer in preparing her leaveapplication in that court. That being said, I am not convinced that her leave application is frivolous or vexatious nor that it is necessarilydoomed to failure.

It is the prerogative of the judges of the Supreme Court of Canada to decide whether or to grant leave to appeal, and itis not my place to speculate as to their decision in this matter. [7] I will therefore grant in part the application so as to stay the retroactive cancellation of spousal support.

In practical terms, thismeans that the Respondent will not be paying any further spousal support to the Applicant pending the outcome of the proceedings in theSupreme Court of Canada, but he will not be entitled to seek reimbursement from the Applicant for any past spousal support paymentswhile these proceedings are ongoing.

FOR THESE REASONS, THE UNDERSIGNED JUDGE: [8] GRANTS in part the Applicant’s stay application; [9] STAYS the judgment dated November 3, 2016 of the Superior Court, District of Longueuil, with respect to the retroactivecancellation of spousal support for the period of September 30, 2011 to November 3, 2016, but not with respect to the cancellation ofspousal support for the period subsequent to November 3, 2016;

[ 10 ] ORDERS that this stay will remain in force (

a) until the expiry of the time for seeking leave to appeal the judgment of this Court dated February 10, 2017 to the Supreme Court of Canada; (

b) if leave is sought, until the judgment of the Supreme Court of Canada refusing such leave; or (

c) if leave is granted, until the judgment of the Supreme Court of Canada on the merits of the appeal; [ 11 ] WITHOUT COSTS , since this is a family law matter. ROBERT M. MAINVILLE, J.A. M. J. For Appellant In person Mtre Émilie Chevrier BARRETTE & ASSOCIÉS For Respondent Date of hearing: March 24, 2017