2020 QCCA 1420, 2020 QCCA 1420

Droit de la famille — 201637 2020 QCCA 1420 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028877-207 ( 500-12-332141-161 ) MINUTES OF HEARING DATE: October 30, 2020 THE HONOURABLE STEPHEN W. HAMILTON, J.A. Appellant Counsel S. S. Mtre Andrew Heft ( Heft Droit de la Famille ) Absent Respondent Counsel B. H. Mtre Gérald Stotland ( Lavery, De Billy ) Absent DESCRIPTION: Application for a safeguard order (Art. 25(2), 158(5), 377, 379 and seq. C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING

10:42 Continuation of the hearing held on October 28, 2020. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Appellant seeks the issuance of a safeguard order to ensure that sums totalling $245,364.55 currently held in trust for the Respondent be retained in trust pending the outcome of the appeal. *** [ 2 ] The judgment under appeal was rendered on January 27, 2020, by the honourable Micheline Perreault of the Superior Court, district of Montreal, in which she pronounced the divorce of the parties, partitioned the family patrimony and the partnership of acquests, and dealt with child support and spousal support. [1] [ 3 ] Pursuant to the judgment, the judge ordered the Appellant to pay the Respondent a net total of $310,864.85 as follows: Retroactive child support $7,350 Overpayment of spousal support ($3,000) Chalet $43,386 RRSP $17,093.05 RRIF $10,640.30 RREGOP $228,995.50 Furniture $1,250 Cars ($1,000) [ 4 ] She also ordered the sale of two joint properties (A and

B) and the equal division of the net proceeds. Those sales have now occurred. The amounts held in trust are the balance of the Respondent’s share of the net proceeds of those sales.

As the Respondent is a non-resident and there is a potential tax liability, a portion of the proceeds of the sales is being held in trust pending a release by the tax authorities. [ 5 ] The Appellant filed an appeal in which he asks that the Respondent be condemned to pay him a total of $247,916.99: IHA $128,759.62 Chalet $77,822 A property $41,335.37 [ 6 ] Implicitly, he is also asking for the cancellation of the condemnation under the trial judgment in favour of the Respondent with respect to the chalet.

Finally, he asks that the conclusions in the trial judgment condemning him to pay half of his RRIF and his RREGOP be replaced by orders to rollover half of the value of the RRIF and to partition the RREGOP in accordance with the regulations. [ 7 ] On July 23, 2020, my colleague, Justice Hogue, granted in part the Respondent’s application for provisional execution and ordered the Appellant to pay the Respondent $50,000. [2] [ 8 ] The Appellant’s motion is based on the following considerations. [ 9 ] First, the Appellant argues that, if his appeal is granted in full, the effect would be that (1) the amount he is ordered to pay the Respondent will be reduced to $17,093.05, [3] (2) the Respondent will be ordered to pay him $247,916.99, and (3) the Respondent will be required to account for the $50,000 provisional payment that she received.

Therefore, he submits that, should he succeed in full with his appeal, the Respondent will be obliged to pay him a total amount of $280,823.94, the whole with interest and the additional indemnity. [ 10 ] The Appellant then submits that the only assets the Respondent has in Canada — as she now lives in [Country A] — are the amounts totalling $245,364.55 currently held in trust for her. [ 11 ] The Appellant therefore asks that those funds be retained in trust, save and except for any amount that may become due by the Respondent to the tax authorities, to guarantee payment of the amounts that may be due to him pursuant to the appeal. *** [ 12 ] For a safeguard order to be issued, the party must show that the order is necessary to protect his rights pending the outcome of the appeal, whether by maintaining the statu quo or by preventing the appeal from being rendered ineffective or irreparable harm from

being caused. [4] The criteria for the issuance of a safeguard order are appearance of right, serious or irreparable injury, balance of convenience and urgency. [5] [ 13 ] The criteria of urgency is met here. The Respondent’s counsel is unable to provide any information as to when the tax releases will be obtained, with the result that the releases could be obtained at any time and the funds thereupon released. The Appellant is entitled to act now. [ 14 ] The issue of appearance of right in relation to an appeal is delicate.

It requires me to perform a preliminary analysis of the grounds of appeal to assess whether they are clear, possible or non-existent. [ 15 ] For the purposes of this motion, I presume the Appellant’s position on the RRIF and the RREGOP is clear. Based on my review of the monetary claims, which was discussed at length with the parties during the hearing and I will not reproduce here, I conclude that the Appellant has a possible claim for $180,000, including reimbursement of the provisional payment.

I will treat the other $100,000 as non-existent for purposes of this motion. [6] [ 16 ] For the serious or irreparable injury, the Appellant argues that there is a risk that he will not be able to recover the amounts that the Court may order the Respondent to pay him, because the Respondent does not have any assets in Canada other than the amounts held in trust, and those may be used to pay taxes or may be released before the Court renders its judgment.

For the purposes of this motion, I will assume that this risk, if established, could constitute serious or irreparable injury. [ 17 ] The Appellant’s argument ignores the fact that the Respondent is entitled to half of the Appellant’s RRIF and RREGOP. The Respondent’s entitlement to half of the RRIF and the RREGOP is not contested, but the way in which those amounts are to be transferred to the Respondent forms part of the appeal. As a result, those amounts cannot be transferred prior to the Court’s judgment and will therefore be assets of the Respondent in Canada when the judgment is rendered.

Even if the value of those assets is reduced by 35% to take into account the potential tax consequences of cashing them, they are still worth over $155,000. [ 18 ] In my view, this is sufficient to show that the possible claim of the Appellant which is at risk is only $25,000. [ 19 ] Once I reach that conclusion, it follows that the balance of convenience leans in favour of the Respondent.

It is not appropriate to hold in trust $245,364.55 that unquestionably belongs to the Respondent to guard against the possibility that, if the Appellant is successful in all of his possible claims, he may have difficulty collecting $25,000. [ 20 ] I will therefore dismiss the motion for a safeguard order. I do not, however, consider it abusive and I will therefore also dismiss the Respondent’s request for $9,500 in damages. FOR THESE REASONS, THE UNDERSIGNED: [ 21 ] DISMISSES the Appellant’s application for a safeguard order; [ 22 ] THE WHOLE without costs given the nature of the case. STEPHEN W. HAMILTON, J.A.