2015 QCCA 1253, 2015 QCCA 1253

Droit de la famille — 151864 2015 QCCA 1253 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OFMONTREAL No: 500-09-025324-153 (500-12-309943-110) DATE: JULY 22, 2015 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. G. T. APPELLANT – Plaintiff v. S. R. RESPONDENT – Defendant JUDGMENT [1] The parties were divorced by judgment dated May 4, 2015 rendered by the Superior Court, District of Montreal (theHonourable Mr. Justice Stephen W. Hamilton), which also decided the following issues: child support, spousal support, division of thefamily patrimony, compensatory allowance, and provision for costs.

The appellant appealed the judgment, contesting the judge'sconclusions on child support, division of the family patrimony, seizure before judgment, spousal support and provision for costs. [2] The appellant asks that provisional execution of the following conclusions of the judgment be suspended (but only partially inthe case of conclusion 207): [207] FIXES the child support payable by the husband to the wife at $1,307.51 per month for the period from January 1, 2014 toDecember 31, 2014, and at $1,273.18 per month starting January 1, 2015, the whole to be indexed on January 1, 2016 and on January 1of each subsequent year in accordance with

Article 590 of the Civil Code of Quebec; [213] FIXES the spousal support payable by the husband to the wife at $3,200 per month retroactive to January 1, 2014, the whole tobe indexed on January 1, 2016 and on January 1 of each subsequent year in accordance with

Article 590 of the Civil Code of Quebec; [214] ORDERS the husband to pay a lump sum support payment of $75,000 within 90 days of this judgment. * * [3] According to

article 547, first para., sub-para. g), C.C.P., provisional execution in matters of child or spousal support(including provision for costs)[1] is the rule, In these matters, suspension is possible however, pursuant to

article 550 C.C.P., but remainsexceptional. The Court will apply this provision strictly, with caution, according to stringent criteria, considering the presumption ofvalidity that judgments of a court of first instance enjoy: [6] Les critères présidant à la suspension de l'exécution provisoire sont bien connus: il faut, tout d'abord, démontrer que le jugementde première instance est entaché de faiblesses apparentes et importantes et, ensuite, démontrer la nécessité et l'urgence de la suspensionen vue d'éviter un préjudice irréparable, tenant compte du poids relatif des inconvénients [reference omitted]. Le fardeau de cettedémonstration repose sur les épaules de la

partie qui demande la suspension. C'est un lourd fardeau vu, d'une part, la présomption devalidité des jugements [reference omitted] et vu, d'autre part, le respect dû par la Cour aux déterminations du juge de première instancedans les affaires où, comme en l'espèce, sont en cause la garde d'un enfant et des ordonnances de nature alimentaire. Cela est plus vraiencore en ce qui touche l'octroi d'une provision pour frais qui relève pour

partie de l'exercice par le juge de première instance d'un vastepouvoir discrétionnaire.[2] [4] In Droit de la famille — 13485, 2013 QCCA 392, Gascon J.A. (as he then was) explained that: [7] En matière de suspension de l'exécution provisoire ordonnée en première instance dans un cas de garde et de pension alimentaire,les critères qui doivent guider le juge unique de la Cour sont connus [reference omitted]. Le juge d'appel ne doit exercer son pouvoird'ordonner la suspension de l'exécution provisoire que dans des cas exceptionnels.

Il doit exercer ce pouvoir avec parcimonie, dans leplus grand respect pour le juge d'instance qui a vu et entendu les parties et les témoins [reference omitted]. Il ne doit le faire que surdémonstration de faiblesses apparentes dans le jugement entrepris, d'une urgence d'agir dans l'intérêt supérieur de l'enfant [referenceomitted] et d'un poids des inconvénients favorable à la

partie qui le requiert. [5] The strict approach of the Court in such matters is also a reflection of the great deference due by appellate courts to trial judges'vast discretion in child or spousal support matters (see: Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, para. 11).

* * [ 6 ] The appellant's motion does not fulfil the requirements of

article 550 C.C.P. * * [ 7 ] The appellant essentially argues that he does not have the ability to pay the spousal support and additional child support ordered by the judgment nor the lump sum support payment of $75,000, since the trial judge grossly erred in establishing his annual income at $200,000. Not suspending provisional execution of these unreasonable orders will therefore be the cause of an irreparable prejudice.

The appellant also alleges that the judge erred in summarily dismissing his argument of undue hardship, in view of the fact that he now supports another family (a new spouse and two young children). He also submits that the respondent was not entitled to the $75,000 lump sum, which is not in the nature of a provision for costs and which was awarded on the basis of erroneous assumptions.

He further asserts that it is exorbitant, and “compensates Respondent for procedural abuses” (para. 39 of the appellant's motion). [ 8 ] These arguments are not convincing. [ 9 ] At the core of the appellant's argument rests his assertion that the judge erred in setting his annual income at $200,000, when, in fact, he earns, at most, $70,000. Appended to his motion are a few documents that purport to buttress this assertion, but are actually inconclusive. What the judgment makes clear, however, is that, at trial, the evidence on that topic was highly contradictory.

The judge examined this evidence carefully and, despite the fact that some of his remarks may, perhaps, be open to question, one cannot say that they are flawed.

On a review of the full record, the Court might possibly allow the appeal, but, at present, this is not sufficient to justify suspending provisional execution, even in part. [ 10 ] In addition, considering what the judge concluded about the assets, income, lifestyle and expenses of the appellant, it is impossible to find that provisional execution will cause him irreparable harm or constitute undue hardship. [ 11 ] Finally, it must also be said that suspension of the provisional execution order would cause great prejudice to the respondent, taking into account the fact that, because of the pending appeal, the conclusions of the judgment relating to the partition of the family patrimony are also suspended, pursuant to

article 497 C.C.P. The balance of inconvenience, here, clearly favours the respondent. [ 12 ] One last remark is in order. At the hearing, appellant's counsel indicated that, in his opinion, the $75,000 lump sum was not awarded as a provision for costs and was therefore not subject to provisional execution as per

article 547, first para., subpara. g), C.C.P. The judgment, in this respect, is somewhat confusing, but it nevertheless appears that the award was made on the basis of the criteria developed under

article 588, second para., C.C.Q. and that it qualifies as a provision for costs, therefore coming under

article 547, first para., subpara. g), C.C.P. * * [ 13 ] Pursuant to articles 507.0.1 and 508.2 C.C.P. , it is appropriate that the appeal proceed in an expedited manner and, with the agreement of the parties, a

schedule will be established accordingly. * * FOR THESE REASONS, I: [ 14 ] DISMISS the motion; and [ 15 ] ORDER the appellant, after having served a copy upon the respondent, to file in the office of the Court, no later than October 9, 2015, five copies of a written argument not exceeding 30 pages , of the documents that would normally have made up schedules I, II and III of his factum and of his authorities; [ 16 ] ORDER the respondent, after having served a copy upon the appellant, to file in the office of the Court, no later than November 13 , five copies of a written argument not exceeding 30 pages , of her supplementary documents, and of her authorities; [ 17 ] ORDER the parties to present their written arguments on 21.5 cm X 28 cm (8½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm, the use of the font ARIAL-12 being strongly recommended; [ 18 ] ORDER that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 19 ] REFER the file to the Master of the rolls to determine the date of a hearing of 80 minutes in duration (40 minutes for each party); [ 20 ] THE WHOLE , without costs.

MARIE-FRANCE BICH, J.A. Mtre Jay Turner

OIKNINE & ASSOCIÉS For the appellant Mtre Maria R. Battaglia MARIA R. BATTAGLIA, AVOCATS For the respondent Date of hearing: July 8, 2015