2021 QCCA 718, 2021 QCCA 718

Droit de la famille — 21775 2021 QCCA 718 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029466-216 ( 500-12-329567-162 ) MINUTES OF HEARING DATE: April 23, 2021 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPELLANT COUNSEL G. F. M tre Ewelina Piwowar- Tarwacka ( Feldman Avocats ) By videoconference RESPONDENT COUNSEL T. B. Mtre Pierre-Hugues Fortin ( FSD Avocats ) By videoconference DESCRIPTION: Application to suspend the provisional execution (Art. 660 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: Louis-H.-Lafontaine HEARING

9:27 Commencement of the hearing. Identification of counsel. Submissions by Mtre Piwowar. 9 h 47 Submissions by Mtre Fortin. 10 h 05 Reply by Mtre Piwowar. 10 h 14 BY THE JUDGE: Judgment – see page 3. 10 h 15 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Appellant seeks a stay of the provisional execution of a judgment rendered by the Superior Court, District of Montreal (the Honourable Marie Gaudreau), which ordered the Appellant to pay a provision for costs of $120,000 to the Respondent. [1] [ 2 ] After a marriage of almost twenty years, the parties divorced in 2019.

The Appellant undertook to pay spousal support and a total of $5.22 million to the Respondent to settle the accessory measures of the divorce, including the transfer of a house. Issues have arisen since then. The house was damaged before the transfer and the Appellant undertook to pay for the repairs, but he did not. The Appellant ceased paying the children’s expenses and was ordered to pay child support. The Respondent alleges the right to accelerate payment of the remaining amounts due under the divorce judgment and registered legal hypothecs and seized bank accounts.

The Appellant contested these measures and sued her in damages.

He unilaterally ceased paying spousal support and child support and made a motion to suspend all payments until 2024 because of alleged financial difficulties. [ 3 ] In that context, the Respondent asked for a provision for costs of $150,000, invoking that the Appellant is failing to execute his obligations and that she will need to defend herself on several fronts. [ 4 ] The judge found that the Appellant’s behaviour was the cause of the various proceedings and that there was a “déséquilibre économique” between the parties that justified a provision for costs.

She considered that the Respondent needed a provision for costs - the Respondent should not have to draw from her own capital, which should serve to ensure her financial security for retirement, to pay for these proceedings. She considered that the Appellant had very substantial resources and held that he did not demonstrate his inability to pay. She reduced the amount from $150,000 to $120,000. [ 5 ] A judgment ordering a provision for costs is provisionally executed as of right (Article 660(1)(11°) C.C.P. ). A judge of the Court has the power to suspend it (Article 660(2) C.C.P. ).

For the judge to grant the application, the appellant must demonstrate that (

i) the judgment under appeal is prima facie flawed; (ii) he would suffer serious or irreparable harm, if the stay is not granted; and (iii) the balance of inconvenience favours the stay of the provisional execution. [2] Moreover, the discretion of a judge of the Court must be exercised with restraint, given the legislator’s expressed intention that provisional execution should be the rule in such matters. [3] [ 6 ] The Appellant fails to meet these conditions. The notice of appeal is very brief and does not, on its face, demonstrate any error by the judge.

The Appellant makes vague allegations of a “risk of serious and irreparable prejudice that must urgently be avoided”, but fails to explain how. His allegations of a drastic deterioration in his financial position such that he is unable to pay, were dismissed by the judge and he does not point to any error in her analysis such as evidence that she failed to consider or misconstrued. He alleges only that the judgment “is based on false allegations, misrepresentation of justice”.

This falls well short of what is require to justify a suspension of provisional execution. [ 7 ] This is sufficient to dispose of the application. [ 8 ] At the hearing, the Respondent also argued that the application should be dismissed as the Appellant did not ask for leave to appeal.

Given the conclusion at which I have arrived on the merits of the application, it is not necessary for me to deal with that issue, nor is it appropriate for me, as judge alone, to do so. [4] I also note that the Appellant is still within his delay to ask for leave to appeal and the Respondent is within her delay to ask for dismissal of the appeal. FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the application to suspend the provisional execution, without legal costs given the nature of the dispute. STEPHEN W. HAMILTON, J.A.