2015 QCCA 880, 2015 QCCA 880

Droit de la famille — 151072 2015 QCCA 880 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025200-155 (500-12-226218-950) MINUTES OF THE HEARING DATE: May 15, 2015 THE HONOURABLE MARIE ST-PIERRE, J.A. APPELLANT COUNSEL W. L. Mtre SAMY STALTARI (ABSENT) (Hammerschmid & associé

s) RESPONDENT COUNSEL S. S. Mtre ASHER NEUDORFER (ABSENT) ( Sarna Neudorfer ) IMPLEADED PARTY COUNSEL AGENCE DU REVENU DU QUÉBEC DESCRIPTION: Appellant’s motion to suspend the execution of a judgment pending the appeal (Art. 547, 550 C.C.P. and following) Clerk: Linda Côté Courtroom: RC-18

HEARING 9 : 30 Continuation of the hearing on May 12, 2015. Judgment – see page 3. Conclusion of the hearing. (

s) Clerk BY THE JUDGE JUDGMENT [ 1 ] By his motion based on articles 547 and 550 of the Code of Civil Procedure , appellant seeks to suspend his obligation to pay spousal support to the respondent pending the appeal, retroactively to November 3, 2013, and until such time as the parties have obtained final judgment from this Court or, subsidiary, to be authorized to forward spousal support to respondent’s attorney to be held in trust pending the outcome of the appeal. [ 2 ] This motion is ill-founded and will be dismissed, with costs. [ 3 ] On November 3, 1998, appellant and respondent signed a consent agreement which was ratified by a judgment of the Superior Court on December 18, 1998. [ 4 ] On December 2, 2013, appellant instituted a motion to cancel support which was heard on March 12 and 13, 2015, before Justice François P.

Duprat of the Superior Court. [ 5 ] By judgement rendered on March 25, 2015, Justice Duprat dismissed appellant’s motion to cancel support.

Appellant served and filed an inscription in appeal of said judgment (the present file). [ 6 ] Through his motion, appellant is not seeking to cancel or suspend the execution of Justice Duprat’s judgment (the judgment under appeal): rather, he is seeking an order to suspend the judgment rendered on December 18, 1998 (which ratified the consent agreement of November 3, 1998) or a judgment equivalent to what he believes Justice Duprat should have done, but did not, and from a judge of this Court sitting as judge alone and at this preliminary stage of the appeal file. [ 7 ] Articles 547 and 550 C.C.P . do not allow for such remedy and, no judge sitting alone has jurisdiction to intervene in such a fashion.

This would be enough to dismiss the motion. [ 8 ] However, given the arguments that were made before me, it is not without significance to add that, had I seen things differently (as counsel for the appellant suggested to me I should do), I would have dismissed appellant’s motion since he has not discharge his burden under

article 550 C.C.P . [ 9 ] Pursuant to

article 550 C.C.P ., as interpreted and applied by this Court, appellant (the party who seeks the suspension of execution of a judgment) bears the following burden of demonstration: (1) to point major and flagrant flaws in the judgment appealed from; (2) to show that the provisional execution of the judgment appealed from is of such nature as to cause him great or irreparable harm and (3) to demonstrate that the balance of inconvenience is in his favour (see: S.D. c.

D.G ., 2006 QCCA 871 ; Droit de la famille – 08808 , 2008 QCCA 686 ; Droit de la famille – 081957 , 2008 QCCA 1541 ; Droit de la famille – 10588 , 2010 QCCA 492 ; Droit de la famille -11534 , 2011 QCCA 418 ; Droit de la famille – 113005 , 2011 QCCA 1774 ; Droit de la famille – 122342 , 2012 QCCA 1545 ; Droit de la famille – 141290 , 2014 QCCA 1115 ; Droit de la famille – 142291 , 2014 QCCA 1721 ). [ 10 ] As my colleague Justice Marie-France Bich wrote in Droit de la famille – 113005 , 2011 QCCA 1774 : [19] These conditions are exacting, considering the presumption of validity attached to judgments, even in the presence of an appeal, and they are to be applied strictly in cases, such as this one, where provisional execution is dictated by law. [ 11 ] First, the questions that are raised in the appellant’s inscription in appeal appear highly debatable and it is impossible to

conclude at this stage that, in this regard, there are major and apparent flaws in the judgment that would justify a suspension of execution. [ 12 ] Second, the appellant has failed to show that continuing to pay spousal support is of such nature as to cause him great or irreparable harm : before the judge of first instance, he admitted his financial capacity of paying the full amount of spousal support (see paragraph 14 of the judgment) and did not, therefore, produce a statement of income and expenditures and balance sheet as he would otherwise have to; moreover, he continues to administer solely respondent’s RRSP portfolio which had a present value of $ 236 000 at the time of hearing (see paragraph 8 of the judgment) while respondent is also the joint owner of a residence in Town A.

Therefore, I am bound to disagree with the allegation he is making that it would be extremely difficult for him to collect from respondent any possible reimbursement if he succeeds on appeal. [ 13 ] Third, the balance of inconvenience would in any event clearly be in respondent’s favour. THEREFORE, THE UNDERSIGNED: [ 14 ] DISMISSES the motion, with costs. MARIE ST-PIERRE , J.A. Mtre Samy Staltari Hammerschmid & associés For the appellant Mtre Asher Neudorfer Sarna Neudorfer For the respondent Date of hearing: May 12, 2015