2020 QCCA 1226, 2020 QCCA 1226

Droit de la famille — 201391 2020 QCCA 1226 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028076-198 (540-04-014401-183) (540-12-020696-167) DATE: September 25, 2020 BEFORE THE HONOURABLE MARK SCHRAGER, J.A. R. C. APPELLANT / INCIDENTAL RESPONDENT – Plaintiff v. ESTATE OF THE LATE J. M. RESPONDENT / INCIDENTAL APPELLANT – Defendant JUDGMENT [ 1 ] The Respondent intends to seek leave to appeal to the Supreme Court of Canada and thus requests a suspension of the execution of this Court’s judgment of June 26, 2020 [1] pursuant to Art. 390 2 nd paragraph C.C.P. and

Section 65.1(1) Supreme Court Act . Respondent is the estate of the late husband who died while the divorce case was pending in first instance. Virtually all the financial aspects of the marriage breakdown were in issue. [ 2 ] This Court overturned in part the judgment of the Superior Court, District of Montreal (the Honourable Donald Bisson) [2] . What is relevant for present purposes is the issue of the treatment of a debt contracted by the husband of $573,000 USD in the partition of the partnership of acquests. This Court intervened on this issue and decided that the debt did not form part of the acquests.

As such the estate was condemned by the Court of Appeal to pay the wife $667,904 rather than $290,904 as the trial judge had decided. Respondent seeks the suspension of the payment of the difference pending a leave application to the Supreme Court of Canada and pending such appeal should leave be granted. [ 3 ] Respondent also seeks the suspension of other sums due under the judgment of the Superior Court not modified by the Court of Appeal.

The conclusion sought in such regard reads as follows: Additionally, delay the execution of the balance of funds owned for a period of six months until March 30, 2021 to allow the liquidator to obtain financing to pay the sums owing as per the Judgment of the Court of Appeal (paragraphs referenced hereinbelow form the Judgment of Divorce): - Paragraph 353: $320,000 plus interest (partition of family patrimony); - Paragraph 358: $290,904 acknowledged as owing (partnership of acquests) (referenced in the paragraph hereinabove); - Paragraph 364: $12,117.58 regarding balance of legal costs. [ 4 ] These conclusions of the judgment of the Superior Court are not affected by the Court of Appeal judgment nor are they raised as issues in respect of which Respondent intends to seek leave to appeal to the Supreme Court of Canada.

However, Respondent describes a liquidity issue in the estate, namely that because of the Covid crisis and the fact that the real estate is now owned by a testamentary trust there have been difficulties in raising financing on the security of the properties owned by the estate in order to pay the aforementioned sums. [ 5 ] The criteria to obtain a stay in such circumstances are well recognized: 1. A serious issue must be raised; 2. Immediate execution is liable to cause serious prejudice; 3.

The balance of inconvenience favours the party seeking a stay. [3] [ 6 ] I consider the issues raised regarding the treatment of debts in the division of a partnership of acquests to be sufficiently serious to merit a stay. The threshold is not high and the arguments put forward by Respondent are not frivolous.

[ 7 ] Moreover, payment of a considerable sum by the estate having liquidity problems where the amount may not be due and a reimbursement (possibly) required to be claimed constitutes a sufficiently serious prejudice to satisfy such branch of the test. [ 8 ] Also the balance of inconvenience appears to favour Respondent.

There appears to be sufficient assets in the estate to eventually pay the wife but there is currently, as alleged in the motion, a liquidity problem. [ 9 ] Accordingly, I will stay payment of the sum of $376,519 which is the difference between the amount ordered to be paid by the Court of Appeal of $667,423 and the amount ordered by the Superior Court of $290,904, which Respondent acknowledges owing, the whole as requested in the motion. [ 10 ] However, the second series of conclusions requesting a 6 month stay regarding other sums will not be granted.

The jurisdiction of the undersigned to grant a stay is premised on leave to appeal to the Supreme Court of Canada being sought. No leave is sought on these questions so that in my view there is no jurisdiction to grant leave. Looked at in another way, via the Metropolitain Stores test, there is no issue raised regarding these conclusions since leave to the Supreme Court of Canada will not be sought with regard thereto. Thus, there is no basis to order a stay for such conclusions. The judgment of this Court in, Szasz v.

Lakeshore School Board [4] is of no support for Respondent’s contention that I have jurisdiction to grant a stay or extend the delay to execute the judgment in first instance or of this Court. That case confirmed the jurisdiction of the Superior Court to allow extra time to comply with a declaratory judgment setting aside certain resolutions of a school board. Here I am dealing with the compulsory execution of a monetary award. The Superior Court has jurisdiction over execution (Art. 390 C.C.P. ).

FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 11 ] GRANTS in part only Respondent’s application to suspend the provisional execution of a judgment of this Court; and [ 12 ] SUSPENDS in part only paragraph 60 of the judgment of the Court of June 26, 2020 for the amount of $376,519 pending the last to occur of (

i) the expiry of the time limit to request leave to appeal to the Supreme Court of Canada or (ii) until leave to appeal is dismissed or (iii) until judgment on the appeal is rendered by the Supreme Court of Canada; [ 13 ] THE WHOLE without costs given the nature of the case. MARK SCHRAGER, J.A. Mtre Muriel Librati Mtre Amanda Emmanuelle TEITELBAUM LIBRATI For the appellant / incidental respondent Mtre Linda Schachter Mtre Fady Girgis DEVINE SCHACHTER POLAK For the respondent / incidental appellant Date of hearing: September 25, 2020