2020 QCCA 1301, 2020 QCCA 1301

Droit de la famille — 201452 2020 QCCA 1301 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028835-205 ( 500-12-281679-054 ) MINUTES OF HEARING DATE: October 9, 2020 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. ROBERT M. MAINVILLE, J.A. GENEVIÈVE COTNAM, J.A. APPELLANT COUNSEL A. AB. Unrepresented Absent RESPONDENT COUNSEL R. A. Unrepresented Absent IMPLEADED PARTIES X Y AGENCE DU REVENU DU QUÉBEC ABSENT AND UNREPRESENTED

DESCRIPTION: Motion of Appellant to Reconsider the Appeal Court Order to Furnish Suretyship (Articles 322, 387, 492, 493 C.C.P. ) Motion of Appellant to Suspend the Provisional Execution (Article 660 C.C.P .) Motion of Appellant to Suspend the Time Limit (Articles 378, 379, 390 C.C.P .) Motion of Respondent to Dismiss the Appeal and to Declare the Appellant Quarrelsome and Vexatious Litigant (Articles 51 to 56 and 365 C.C.P . and

article 13 of the Civil Practice Regulation ) Clerk at the hearing : Mélahelle Sicotte Courtroom: Pierre-Basile-Mignault HEARING 9:30 Continuation of the hearing held on October 5, 2020 The parties were excused from appearing in Court. Conclusion of the hearing.

Mélahelle Sicotte, Clerk at the hearing JUDGMENT [ 1 ] On January 21, 2020, the Honourable Madam Justice Carol Cohen of the Superior Court, District of Montreal, rendered a judgment with respect to the child and spousal support owed by the Appellant to the Respondent ( 2020 QCCS 262 ). [ 2 ] This judgment follows long and protracted divorce litigation between the parties extending over 15 years.

Cohen, J.S.C. noted that this litigation has been characterized by the systematic refusal of the Appellant to comply with any of the numerous judgments awarding child or spousal support to the Respondent. [1] She further noted that the Appellant owed in excess of $100,000 in arrears to the Respondent and that he had left her with the sole obligation of supporting their two children, both financially and emotionally, for more than a decade. [2] [ 3 ] Following a hearing extending over nine days, Cohen, J.S.C. concluded that there were no grounds to reduce child support, to annul spousal support or to annul the arrears resulting from past judgments, as the Appellant was requesting.

Based on her assessment of the evidence, she determined the parties’ respective incomes from 2016 onward, accordingly revised the child support retroactively from January 1, 2016, ordered the Appellant to pay the child support retroactively, reiterated a prior court order and ordered the Appellant to pay monthly compensatory alimentary spousal support to the Respondent until full payment of a lump sum of $50,000 which was provided for in the divorce judgment and has remained unpaid, declared the Appellant to be a vexatious and quarrelsome litigant, further ordered the Appellant to pay the Respondent compensatory damages in the form of a provision for costs of $75,000, as well as punitive

damages of $5,000, and declared her judgment executory notwithstanding appeal. * * * [ 4 ] The Appellant has appealed the January 21, 2020 judgment of Cohen, J.S.C., alleging numerous errors of law and of fact. [ 5 ] On March 5, 2020, the Respondent sought to have that appeal dismissed under

article 365 of the Code of Civil Procedure (“ C.C.P. ”) on the ground that it had no reasonable chance of success or, alternatively, to have the Court subject the appeal to a suretyship of $75,000 pursuant to

article 364 C.C.P. and order a provision for costs of $35,000 pursuant to

article 416 C.C.P. [ 6 ] On July 10, 2020, a panel of this Court (Healy, Hamilton and Sansfaçon, JJ.A.) ( 2020 QCCA 898 ) dismissed the motion to dismiss the appeal and the motion for a provision for costs. However, the appeal was subjected to the provision of a suretyship of $25,000 to be furnished by the Appellant within 30 days. The reasons given were the following: [3] [2] However, given the Appellant’s ongoing failure to pay the amounts due to the Respondent despite the judgments rendered and the trial judge’s finding that the Appellant is a vexatious litigant, this is an appropriate case for the Court to subject the appeal to the provision of a suretyship under

article 364 C.C.P. Using its discretion, the Court fixes the suretyship at $25,000.

There is no evidence in support of the Respondent’s request for a provision for costs. * * * [ 7 ] On July 28, 2020, the Appellant submitted a motion to the Court asking that it reconsider the order subjecting the appeal to a suretyship on the ground that he does not have the financial means to provide it. [ 8 ] That same day, he submitted a motion asking the Court to suspend the provisional execution of the January 21, 2020 judgment of Cohen, J.S.C. pending the appeal on the ground that he does not have the financial means of complying with that judgment. [ 9 ] On August 3, 2020, the Appellant further submitted a motion to suspend the time limit to furnish the suretyship until his motion for reconsideration of the suretyship is heard. [ 10 ] On August 10, 2020, the Respondent submitted a motion to dismiss the appeal in light of the Appellant’s failure to provide the suretyship within the specified 30-day time frame.

She also seeks to have the Appellant declared a vexatious and quarrelsome litigant in appeal. [ 11 ] The Court held a hearing with respect to these motions on October 5, 2020. * * * [ 12 ] We will first address the motion to reconsider the suretyship. [ 13 ]

Article 364 C.C.P governs suretyship: 364. The Court of Appeal or an appellate judge, on their own initiative or on an application by the respondent, may, for good cause, subject an appeal to the provision of a suretyship to guarantee payment of the appeal costs and of the judgment amount if the judgment is affirmed. 364. La Cour d’appel ou un juge d’appel, d’office ou sur demande de l’intimé, peut, pour un motif qui le justifie, assujettir un appel à un cautionnement afin de garantir le paiement des frais de l’appel et du montant de la condamnation si le jugement est confirmé.

The Court or the judge determines the amount of the suretyship and the time limit within which the appellant is required to furnish the surety. La cour ou le juge fixe le montant du cautionnement et le délai à l’intérieur duquel l’appelant est tenu de fournir une caution. [ 14 ] The July 10, 2020 judgment of the Court subjecting the appeal to a suretyship of $25,000 was issued under that article. That judgment is not subject to review by another panel of the Court except in those cases for which the law allows for the revocation of a judgment.

The circumstances in which a revocation of a judgment may be considered are set out in

article 345 C.C.P. : 345. A judgment may, on a party’s application, be revoked by the court that rendered it if letting the judgment stand would tend to bring the administration of justice into disrepute. The judgment may be revoked, for instance, if fraud was committed by another party, if the judgment was based on false exhibits or if the production of decisive exhibits was prevented by superior force or by the act or omission of another party . 345. Le jugement peut, à la demande d’une partie, être rétracté par le tribunal qui l’a rendu si son maintien est susceptible de déconsidérer l’administration de la justice; il en est ainsi si le jugement a été rendu par suite du dol d’une autre

partie ou sur des pièces fausses ou si la production de pièces décisives avait été empêchée par force majeure ou par le fait d’une autre

partie . As well, a judgment may be revoked if Le jugement peut aussi être rétracté dans les cas suivants: (1) the judgment adjudicated beyond the conclusions set out in the application or did not rule on one of them; 1° le jugement a prononcé au-delà des conclusions ou a omis de statuer sur une des conclusions de la demande;

(2) no valid defence was produced in support of the rights of a minor or of a person of full age under tutorship or curatorship or for whom a protection mandate has been homologated; 2° aucune défense valable n’a été produite au soutien des droits d’un mineur ou d’un majeur en tutelle ou en curatelle ou d’une personne dont le mandat de protection a été homologué; (3) a ruling was made on the basis of invalid consent or following an unauthorized tender that was subsequently disavowed; or 3° il a été statué sur la foi d’un consentement invalide ou à la suite d’offres non autorisées et ultérieurement désavouées; (4) evidence was subsequently discovered that would probably have led to a different judgment if the party concerned or its lawyer had become aware of that evidence in sufficient time, although they acted with due diligence. 4° il a été découvert après le jugement une preuve qui aurait probablement entraîné un jugement différent , si elle avait pu être connue en temps utile par la

partie concernée ou par son avocat alors même que ceux-ci ont agi avec toute la diligence raisonnable. (Emphasis added) [Soulignements ajoutés] [ 15 ] The Appellant raises none of these grounds. The Court’s judgment of July 10, 2020 was not the result of fraud, false exhibits or the absence of decisive exhibits which were prevented from being presented by superior force or by the act or omission of another party, nor does the Appellant make such allegations in his motion for reconsideration.

Moreover, the Court did not adjudicate beyond the conclusions set out in the application for suretyship, nor has the Appellant alleged that evidence subsequently discovered would probably have led to a different conclusion. [ 16 ] A few days after the Court rendered its July 10, 2020 judgment, the Appellant filed his motion for reconsideration on the ground that he could not comply with the order due to a lack of financial means. Yet, he submitted no evidence whatsoever of his financial situation.

No bank statements, no income tax returns, no financial statements, nor any other concrete evidence has been submitted to this Court to support his bald assertion. [ 17 ] Th e Appellant’s bald assertion is in striking contrast to the findings of Cohen, J.S.C. after nine days of hearings and an extensive review of the evidence.

Indeed, Cohen, J.S.C. determined that the Appellant has been earning at least $100,000 annually since 2016. [4] [ 18 ] As Cohen, J.S.C. concluded, the Appellant has systematically avoided or refused to pay the amounts owed by him under the numerous judgments rendered throughout the litigation. [ 19 ] Taking into account all the circumstances, the administration of justice would be brought into disrepute if we revoked the July 10, 2020 judgment of this Court subjecting the Appellant’s appeal to a suretyship of $25,000. [ 20 ] Consequently, the Appellant’s motion for reconsideration, as well as his related motion to suspend the time limit to furnish the suretyship until the motion for reconsideration is heard, are both dismissed. * * * [ 21 ]

Article 365 C.C.P. provides that the Court, on an application, may dismiss an appeal if the surety is not furnished within the time limit determined. The Respondent in this case has made such an application. The Appellant has indeed failed to furnish the surety ordered by the Court. It is also clear from the Appellant’s motion materials and his representations at the hearing that he will not comply with the July 10, 2020 judgment of this Court.

The appeal shall consequently be dismissed. * * * [ 22 ] As a result of the dismissal of the appeal, the Appellant’s motion to suspend the provisional execution of the January 21, 2020 judgment of Cohen, J.S.C. no longer has a purpose and shall therefore be dismissed.

Moreover, in light of the dismissal of the appeal, it is not necessary to address the Respondent’s application to have the Appellant declared a vexatious and quarrelsome litigant in appeal, which application shall be dismissed. [ 23 ] Since this litigation involves a family matter, there shall be no order against any party with respect to legal costs, as provided in

article 340 C.C.P.

FOR THESE REASONS, THE COURT: [ 24 ] DISMISSES the Appellant’s motion to reconsider the order of this Court dated July 10, 2020 subjecting the appeal to a suretyship of $25,000; [ 25 ] DISMISSES the Appellant’s motion to suspend the time limit to furnish the suretyship until the motion for reconsideration is heard; [ 26 ] DISMISSES the Respondent’s application to have the Appellant declared a vexatious and quarrelsome litigant in appeal; [ 27 ] GRANTS the Respondent’s application to dismiss the appeal for failure to furnish the suretyship within the time limit; [ 28 ] DISMISSES the appeal for failure to furnish the suretyship within the time limit determined by the Court in its judgment of July 10, 2020; [ 29 ] DISMISSES the Appellant’s motion to suspend the provisional execution of the January 21, 2020 judgment of Cohen, J.S.C. pending the appeal;

[ 30 ] THE WHOLE without legal costs. JACQUES J. LEVESQUE, J.A. ROBERT M. MAINVILLE, J.A. GENEVIÈVE COTNAM, J.A.