2019 QCCA 1327, 2019 QCCA 1327

Droit de la famille — 191557 2019 QCCA 1327 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028030-195 ( 500-12-327801-159 ) MINUTES OF HEARING DATE: July 30, 2019 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPELLANT K. S. Unrepresented RESPONDENT COUNSEL J. B. Mtre Stewart Litvack ( Robinson Sheppard Shapiro sencrl ) On appeal from a judgment rendered on November 27, 2018 by the Honourable Justice Gérard Dugré of the Superior Court, District of Montreal . DESCRIPTION: Appellant's " Motion for immediate sale of the family residence and of the condominium " .

Respondent/Plaintiff’s Application to dismiss Appellant’s Motion for immediate sale of the family residence and of the condominium , for declaration of abuse of proceedings, and for provision for costs. Clerk at the hearing : Stephane Robinson Courtroom: RC-18

HEARING 9:40 Commencement of the hearing. Identification of counsel. Exchanges between the Judge and Me Litvack. 9:45 Exchanges between Mr. S. and the Judge. 9:46 Mr. S. files 3 exhibits. 9:50 Submissions by Mr. S.. 9:53 Verbal Motion by Mr.

S. to amend the conclusions of his “ Motion for immediate sale of the family residence and of the condominium”, so as to read that the Respondent will receive fifty percent (50 %) of the net proceeds of the sale immediately while an amount of twenty thousand dollars ($20,000) will be disbursed in favor of the Appellant. 9:55 Submissions by Mtre Litvack. 10:02 Mtre Litvack files a book of authorities. 10:06 Intervention by Mr. S. . 10:11 Intervention by Mr.

S.. 10:11 Exchanges between the Judge and S.. 10:13 Commentary by the Judge. 10:14 Continuation of Submissions by Mtre Litvack. 10:16 Exchanges between the Judge and the parties. 10:17 Commentary by the Judge. 10:18 BY THE JUDGE : The Appellant is no longer contesting the Respondent’s right to her share of the net proceeds of the family residence in the event that it is sold. However, he is contesting her right to receive the amounts provided under paragraph 82 of the divorce judgment out of the net proceeds of the sale, pending a judgment or settlement in appeal. The judge underlined that sub-paragraph 82(

a) of the conclusions of the divorce judgment appears to be contemplated under article 660(1) C.C.P . dealing with provisional execution notwithstanding appeal (Note that article 660(1) C.C.P . was read by the Judge during the hearing). 10:19 Exchanges between the Judge and the parties. 10:20 BY THE JUDGE : The attorney for the Respondent states that his client does not contest the immediate sale of the family residence at a minimal price of eight hundred fifty thousand dollars ($850,000), provided that she receives fifty percent (50 %) of the net proceeds of the sale of the family residence plus fifty thousand, eight hundred fifty- six dollars ($50,856) awarded as a lump sum as provided under paragraph 82(

a) of the divorce judgment. 10:21 Exchanges between the Judge and Mtre Litvack. 10:22 BY THE JUDGE : Furthermore, although he has no mandate to accept the Appellant’s proposition regarding the payment to the latter of the sum of twenty thousand dollars ($20,000) out the net proceeds of the sale of family residence, the attorney for the Respondent recognizes that, in the event that the Court orders an immediate disbursement of this sum in favor of the Appellant, there will be sufficient funds left to honour the other amounts awarded by the trial judge, if the remainder of the net proceeds of the sale is kept by the instrumental notary retained for the purposes of executing the deed of sale. 10:24 Rebuttal by Mr.

S.. 10:26 The Judge reminds the Appellant that there are a number of documents that have been requested by the Respondent in order to allow her to sell the condominium, as provided by the divorce judgment. 10:28 BY THE JUDGE : The Appellant undertakes to provide the Respondent with all of the documents and the keys to the condominium as requested in writing by the attorney for the Respondent to allow for the sale of the said condominium in accordance with the divorce judgment. 10:30 Exchanges between the Judge and Mtre Litvack.

BY THE JUDGE : The attorney for the Respondent indicates to the Judge that his Application to Dismiss the Appellant’s motion and for declaration for abusive proceedings and provision for costs should be struck, given the progress made during the hearing. 10:32 BY THE JUDGE : Judgment to be rendered in the course of the day by the Honourable Geneviève Marcotte J.A. – see page 3. 10:33 Exchanges between the Judge and Mr. S.. 10:35 Conclusion of the hearing. Stephane Robinson, Clerk at the hearing

JUDGMENT [ 1 ] The Appellant is asking me to grant his Motion for immediate sale of the family residence and the condominium owned by the parties. In response to the filing of this Motion, the Respondent filed an Application to dismiss the Appellant’s Motion, to declare his proceedings abusive and to order the payment of a provision for costs. However, at the time of the hearing, he demanded that said application be struck. [ 2 ] The immediate sale of both properties was ordered by the Divorce judgment rendered by the Superior Court on November 27, 2018.

The parties have since been unable to proceed to sell these properties, namely because of their disagreement regarding the disbursement of the net proceeds of the sale of the family residence and the Appellant’s failure to provide the Respondent with the required documents and keys to the condominium. [ 3 ] At the hearing, both parties agreed that they are experiencing financial difficulties. [ 4 ] While the Appellant’s proceeding takes the form of a Motion for a safeguard order, he is more or less asking me to grant the provisional execution of the conclusions which are not contested in appeal and pertain to the sale of the two properties, as provided for under

article 355 C.P.P. but with the following variations (some of which were modified verbally at the hearing). [ 5 ] For one, he is seeking to vary the trial judge’s conclusion at paragraph 78 regarding the sale of the family residence so as to increase the asked selling price to $925,000 and the minimal selling price to $850,000 in light of the current favourable real estate market. [ 6 ] He is also asking that the disbursements of the sums ordered under paragraph 82 be suspended until a judgment is rendered in appeal.

He further demands that a disbursement of $20,000 be made in his favour, out of the net proceeds of the sale of the family residence, in order to alleviate his current financial difficulties.

However, he consents that the remainder of the sums generated by the sale be held in trust by the instrumental notary retained for its execution, pending the outcome of the appeal. [ 7 ] Finally, he is asking to be authorized to sell the condominium property alone and to vary accordingly paragraphs 95 to 99 inclusively. [ 8 ] The relevant conclusions of the divorce judgment currently read as follows: Family Residence [74] ORDERS the sale of the family residence located at [Address 3], Town B, Quebec [...], said immovable being designated as follows: An immoveable known and designated as being lot number [...] ([...]) on the Cadastre of Quebec, Land Registry Office A.

With all the buildings thereon erected, circumstances and appurtenances, bearing civic address: [Address 3], Town B, Province of Quebec, [...]. [75] AUTHORIZES Defendant to sell the family residence located at [Address 3], Town B, Quebec, [...], on his own and without the signature of Plaintiff; [76] AUTHORIZES Defendant to negotiate and make counter offers to the potential buyers on his own; [77] AUTHORIZES Defendant to sign on behalf of Plaintiff all necessary documents to sell the family residence located at [Address 3], Town B, including exclusive brokerage contract with the real estate agents Nicholas Pedriks and Andres Pedriks and the deed of sale before the instrumental notary on the date to be agreed upon between Defendant and the future buyer; [78] AUTHORIZES Defendant to put the family residence for sale for the price suggested by the real estate agents, $849,000.00, and to accept a minimum selling price during the first 3 months in the amount of $775,000.00, and afterwards for an amount accepted by both parties or fixed by the Court; [79] AUTHORIZES the real estate agents to access the family residence located at [Address 3], Town B, to stage and show the house when requests for visits come in, with a prior notice of twenty-four hours given to Plaintiff; [80] ORDERS Defendant to keep Plaintiff informed of any developments with respect to the sale of the said family residence; [81] ORDERS that the net proceeds from the sale of the family residence be divided equally between the parties; [82] ORDERS that the following amounts should be deducted from Defendant’s share of the net proceeds from the sale of the family residence and remitted immediately to Plaintiff : a) $50,856.00, as ordered in para. [109] below; b) $23,481.00, as ordered in para. [111] below; c) $81,581.34, as ordered in para. [93] below; [83] GRANTS Plaintiff exclusive use of the said family residence located at [Address 3], Town B, until such time as it is sold;

[84] ORDERS the parties to share all expenses related to the said family residence, save and except for utilities, equally, on a 50-50 basis, until such time as it is sold, including without limitation, the minimum monthly interest payments on the jointly held CIBC line of credit registered against the said family residence bearing account # [...], the municipal and school taxes, insurance and any and all major repairs agreed upon by the parties for the sale of the said family residence; [85] ORDERS Plaintiff to assume the cost of the utilities on the family residence until such time as it is sold; […] Condominium [Address 1] [94] ORDERS the sale of the parties’ condominium located at [Address 1], in the City of Town C, Province of Quebec, [...], which is owned by the parties’ in undivided co-ownership, said immovable being designated as follows: An immovable property held in divided co-ownership, known and designated as follows: 1.

Private portion, corresponding to the residential unit, being lot number [...] ([...]) on the Cadastre du Quebec, Land Registry Office A. Civic address: [Address 1], Town C, Quebec [...]. 2. Private portion, corresponding to the underground parking space no. [...], being lot number [...] ([...]) on the Cadastre du Quebec, Land Registry Office A. 3. The vendor’s undivided interest, insofar as concerns the private portions described in paragraphs 1 and 2 above, in and to the common portions pertaining thereto; Including the exclusive right to use the locker no. 32.

The whole as established in the Initial and Subsequent Declarations of Co-Ownership published at Town A, under the numbers [...] and [...], as followed by any amendments thereto, as the case may be (the said Declarations of Co-ownership and any amendments, as the case may be, being hereinafter collectively referred to as the “Declarations of Co-Ownership”).

As the said property now subsists, with all its rights, members and appurtenances thereunto belonging, together with any and all servitudes thereto attached, whether active or passive, apparent or occult, the whole without exception or reserve of any kind on the part of the vendor and especially, the servitudes created by destination of the proprietor under the terms of the aforesaid Declarations of Co- Ownership (instruments numbers [...] and [...]) and also, the servitudes, including servitudes for public utilities in favour of Hydro- Quebec et al. published at Town A, under the numbers [...], [...], [...] and [...]; [95] AUTHORIZES Plaintiff to sell the said condominium on her own and without requiring any signatures from Defendant; [96] AUTHORIZES Plaintiff to sign a brokerage contract with real estate agent Claire Lalande of Sutton Centre-Ouest in order to list the said condominium on the market for sale at a listing price of $230,000; [97] AUTHORIZES Plaintiff to negotiate with potential buyers of the said condominium, make counter offers to potential buyers of the said condominium and to accept an offer to purchase on her own and without requiring Defendant’s consent or signature for a minimum price of $230,000 or any other price accepted by both parties or fixed by the Court; [98] AUTHORIZES Plaintiff to act alone regarding the sale of the said condominium and to execute alone any and all required documents to complete the sale of the said condominium; [99] AUTHORIZES Plaintiff to sign on behalf of Defendant the future deed of sale of the said condominium before the instrumental notary executing the sale of the said condominium on the date agreed upon between Plaintiff and the future buyer of the said condominium; [100] ORDERS the instrumental notary that will be executing the sale of the said condominium, to disburse to Plaintiff and Defendant equal shares of the net proceeds of sale of the said condominium; [101] ORDERS Plaintiff to keep Defendant informed of any developments with respect to the sale of the said condominium; [102] ORDERS Defendant to provide Plaintiff with a set of keys, a certificate of location, and any and all other documents related to the condominium, and required for the sale of said condominium, within seven (7) days of the present judgment; [103] ORDERS the parties to pay for any and all expenses related to the said condominium from the monthly rent collected from the renting of the said property; [ 9 ] I agree that the sale of both properties should proceed without delay, given the financial difficulties of both parties.

However, I see no reason to modify the conclusions of the trial judge, except as regards the amounts set out at paragraph 78 (asked selling price and minimal sale price) and the disbursements of the sums provided for under sub-paragraphs

b) and

c) of paragraph 82. [ 10 ] It is indeed in the interest of both parties that the family residence be sold at the best possible price and the increases suggested by the Appellant have been recommended by his real-estate agent and are not contested by the Respondent. [ 11 ] Insofar as the disbursement of the net proceeds of the sale of the family residence is concerned, the Appellant does not contest that the Respondent is entitled to her 50 % share.

[ 12 ] Although the Appellant contests the Respondent’s right to the lump sum awarded by the trial judge, the amount awarded under paragraph 82a) does appear to qualify as “spousal support” under

article 660 paragraph 1 C.P.P. so as to justify its provisional execution notwithstanding the appeal. The Appellant fails to raise any compelling reason to suspend this provisional execution at this stage. This is not the case for the amounts provided for under paragraphs 82

b) and

c) of the conclusions which are not contemplated by paragraph 660 C.P.P. and are not subject to provisional execution while the appeal is pending. [ 13 ] As far as the sale of the condominium is concerned, the Appellant does not demonstrate that the trial judge’s conclusions should be varied. At the time of the hearing, he undertook to provide the Respondent, by the end of the day, with the necessary documents and keys to allow her to go forward with the immediate sale of the condominium. He will be ordered to act accordingly.

FOR THESE REASONS, THE UNDERSIGNED: [ 14 ] GRANTS the Appellant’s application in part; [ 15 ] PRAYS ACT of the striking of the Respondent/Plaintiff’s application to dismiss Defendant’s Motion for immediate sale of the family residence and of the condominium , for declaration of abuse of proceedings, and for provision for costs; [ 16 ] PRAYS ACT of the Appellant’s undertaking to remit to the Respondent by the end of this day, the documents and keys necessary for the sale of the condominium and ORDERS that he conform thereto; [ 17 ] ORDERS the provisional execution of paragraphs 74 to 81, 82a), 83 to 84 and 94 to 103 of the judgment rendered by Justice Dugré of the Superior Court on November 27, 2018; [ 18 ] ORDERS that, pending the outcome of the appeal, the instrumental notary who will be executing the sale of the family residence retain the net proceeds of the sale, save for the amounts to be disbursed in favour of the Respondent as provided for under paragraph 81 and paragraph 82a) of the divorce judgment and save for a disbursement of $20,000 in favour of the Appellant; [ 19 ] The whole without legal costs, given the nature of the proceedings.

GENEVIÈVE MARCOTTE, J.A.