2019 QCCA 406, 2019 QCCA 406

Droit de la famille — 19357 2019 QCCA 406 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028031-193 (500-12-327711-150) DATE: March 11, 2019 BEFORE THE HONOURABLE MARIE-FRANCE BICH, J.A. E. D. APPELLANT – Defendant v. A. V. RESPONDENT – Plaintiff JUDGMENT [ 1 ] On November 21, 2018, the Superior Court, district of Montreal (the Honourable Mr. Justice François P.

Duprat), ruling on the divorce proceedings between the parties, made the following orders: [1] [106] ACKNOWLEDGES that X and Y are dependent children and continue to live primarily with the plaintiff, since the separation; [107] ORDERS the defendant to pay to the plaintiff as child support for X and Y the following monthly amounts retroactively to August 5, 2015: 2015: 2 372,10 $ 2016: 2 089,46 $ 2017: 2 169,28 $ 2018: 2 182,23 $ [108] TAKES ACT that the defendant has already paid a monthly amount of 1 000 $ to the mother as child support for X and Y; [109] ORDERS that child support be indexed annually, starting January 1st, in accordance with

article 590 C.C.Q.; […] [115] ORDERS the defendant to pay to the plaintiff as monthly spousal support the sum of 12 500 $, retroactively to August 5, 2015; [116] ORDERS that the spousal support be indexed annually, starting as of January 1st, in accordance with

article 590 C.C.Q.; [117] ORDERS the defendant to pay the plaintiff a lump sum in the amount of 350 000 $, payable within 30 days from the date of the present judgment; […] [135] ORDERS the defendant to pay to plaintiff as a provision for costs for her legal fees the amount of 60 977.89 $ and for the cost of experts (MNP) the amount of 35 851.29 $; [ 2 ] According to the judge’s reasons, [2] the expert costs were part of the provision ordered in favour of the respondent and awarded as such. [ 3 ] The judge also condemned the appellant to pay a lump sum of $350,000 to the respondent (art. 589 C.C.Q. ); he ordered the partition of the family patrimony as well as the dissolution of the matrimonial regime (separation as to property), and decided upon various other accessory measures.

Finally, considering that the support orders and provision for costs are to be provisionally executed as of right, pursuant to art. 660 C.C.P. , the judge dismissed the respondent’s demand for provisional execution of his other orders. [3] [ 4 ] On January 4, 2019, the appellant filed a notice of appeal against all conclusions of the judgment regarding support, the lump sum and the provision for costs, on the following grounds:

- the trial judge erred in concluding that the children of the parties are not self-sufficient and that they are entitled to child support; he also erred in establishing child support retroactive to August 5, 2015; [4] - the trial judge erred in ordering spousal support in the amount of $12,500 per month, retroactive to August 5, 2015, considering that the marriage was not a traditional one and that the respondent is self-sufficient and debt-free; - the trial judge erred when, for the purposes of determining the quantum of the child and spousal support, he established the worth and annual income of the appellant on the basis of an “ Agreement regarding the net worth and notional income of defendant ” signed by the parties and their experts and treated as a judicial admission, while the appellant testified that he did not understand said agreement, and was lured into signing it by the ill-founded advice of his then lawyer, hence a defect of consent; - the trial judge erred in awarding the respondent a $350,000 lump sum which did not fulfill the requirements of art. 589 C.C.Q. and which unduly served to redistribute assets between parties who were married under the matrimonial regime of separation as to property; - the trial judge erred by ordering that the appellant pay to the respondent a provision for costs ($60,977.89 in lawyers fees and $35,851.29 in expert fees), considering that she had already benefited from a $90,000$ provision for costs and made ill-founded demands that were either withdrawn or dismissed. [ 5 ] On December 21, 2018, the appellant simultaneously filed in the Superior Court an application for revocation of judgment and stay of execution (500-12-327711-150), which was subsequently amended, and an application in disavowal and stay of execution (500- 17-106100-186), which was also amended later.

Both applications allege that the “ Agreement regarding the net worth and notional income of defendant ” filed during trial (the “ Agreement ”) should be annulled and revoked. These applications were to be heard at the same time on January 21, 2019, but, according to the plumitif , were postponed to February 1, 2019, at which time they were referred to case management.

A case management conference is set for February 27, 2019. [ 6 ] In the meantime, the respondent commenced execution of the judgment (child and spousal support, provision for costs), seized the appellant’s condo (after registration of a legal hypothec) [5] and some other moveable assets (among which a Ferrari car that was to be sold under judicial authority on January 18, 2019). [6] [ 7 ] By motion dated January 17, 2019 and presented that same day before the undersigned, the appellant sought to stay provisional execution of the divorce judgment, i.e. of all orders subject to art. 660 C.C.P.

More specifically, he asked that the seizures and legal hypothec remain in place but that further execution measures be stayed pending the appeal.

In exchange, he offered to continue paying all household expenses for the former family residence (of which the respondent retains exclusive use), children’s expenses plus child support amounting to $1,000 per month, as he did before the judgment a quo and has continued to do since then. [ 8 ] Apparently, a motion seeking a similar stay was dismissed by the Superior Court on the morning of January 17, 2019, in deference to the appeal pending before this Court. [7] * * [ 9 ] The relevant parts of art. 660 C.C.P. read as follows: 660. L’exécution provisoire a lieu de plein droit, lorsque le jugement : 660.

A judgment is provisionally executed as of right, if it 1° concerne une pension ou une provision alimentaire, détermine les modalités de la garde d’enfants ou prononce en matière d’autorité parentale; (1) concerns support payments or a support provision, determines arrangements regarding the custody of children or adjudicates on parental authority; […] (…) 11° ordonne une provision pour frais; (11) orders a provision for costs; or […] (…) Le juge peut, par décision motivée, suspendre l’exécution provisoire; un juge de la Cour d’appel peut aussi le faire ou lever la suspension ordonnée par le juge de première instance.

The judge may order the stay of provisional execution by a decision giving reasons. A judge of the Court of Appeal may also do so, or may lift a stay ordered by the judge of first instance. [ 10 ] Provisional execution of support payments and provision for costs is therefore the rule. Although a stay may be ordered, it remains an exceptional remedy, since the rule would otherwise be largely neutralized.

The conditions for such a stay are well-known: (1) there is an apparent weakness in the judgment (or, in some instances, a serious question of law to be discussed), (2) there is a risk of serious and irreparable prejudice that must urgently be avoided, and (3) the balance of convenience favours the party seeking the stay. [8] These conditions, which are cumulative, are rigorously applied. [9] [ 11 ] Is there an apparent weakness in the judgment?

In Droit de la famille – 081957 , [10] Morissette J.A. wrote that: [4] Il existe une gradation entre un motif d’appel frivole, un motif d’appel plaidable, et la démonstration avant l’audition du pourvoi d’une faiblesse apparente ou importante dans un jugement de première instance. Beaucoup de moyens peuvent être plaidables sans pour autant équivaloir à la démonstration d’une faiblesse apparente dans un jugement.

J’ajoute que, lorsqu’il ressort de l’inscription en appel que le débat sur le pourvoi portera principalement ou exclusivement sur des questions de fait, il doit être tenu compte d’un facteur additionnel, soit la réserve que s’impose une cour d’appel en n’infirmant les conclusions de fait du juge de première instance que si elles

sont entachées d’une erreur dite « manifeste » et « dominante » ou « déterminante ». [ 12 ] These remarks related to art. 547 of the former Code of Civil Procedure , but they are as relevant today as they were in 2008, and they accurately define the nature of the “apparent weakness” required by art. 660 C.C.P . as a prerequisite for suspending provisional execution. [11] [ 13 ] In the present case, if there is a weakness in the judgment appealed from, as far as support and provision for costs are concerned, it is not apparent, i.e. it is neither patent, obvious or palpable.

Firstly, one cannot see any such weakness in the conclusions of the judge that the children of the parties, although of full age, are still dependent upon their parents and need support. The judge’s reasons are clear and detailed and, considering the appeal file as it stands now, are in accordance with the law.

Secondly, his reasons for granting spousal support and a provision for costs are equally clear and detailed, and quite compelling considering the applicable law. [ 14 ] It is true that the question of support (especially spousal support) and provision for costs was dealt with by the judge in consideration of the Agreement signed by the parties, both assisted by their experts and counsel, on March 27, 2018, during the trial. [12] This was not the only reason why the judge granted support, but it certainly played a major role in that decision and was a key determinant of the quantum.

Said Agreement indeed states that: WHEREAS the Applicant mandated the firm MNP to prepare a report on the Fair Market Value of the Interests in private companies held by E. D., as well as his net worth; WHEREAS Mr. Gerald Blackman of the firm MNP prepared the said report dated December 14, 2017; WHEREAS the Defendant mandated the firm BDO to prepare a Limited Critique Report; WHEREAS Mr.

Jean Bélanger of the firm BDO prepared the said report dated February 23, 2018; WHEREAS the said reports have been exchanged between the two (2) experts; WHEREAS both reports have been filed into the Court Record; WHEREAS the experts, Mr. Blackman and Mr. Bélanger have met and discussed their respective reports, findings and conclusions; WHEREAS in order to assist the parties and the Court, the experts have reviewed the reports; WHEREAS the experts have, after their meeting and discussions, agreed as follows: 1. The

preamble forms an integral part of the present consent; 2. The net worth of E. D. is situated between two million five hundred thousand dollars and three million dollars; 3. The notional income of E. D. for the years 2015, 2016, 2017 and 2018 will be set between five hundred and fifty thousand dollars and seven hundred and fifty thousand dollars; 4. The experts have also agreed that the value of the D. Family Trust* is situated between three million eight hundred thousand dollars and four million dollars; *known as “Fiducie famille D.” 5. The Defendant states that there are no financial statements for the D.

Family Trust; 6. The D. Family Trust owns the following assets: • [Company A] (100 Class B shares); • [Company B] (1000 Class A shares); • [Company C] (1000 Class A shares); • [Company D] (1000 Class A shares); • [Company E] (1000 Class A shares); • A bank account having a balance of approximately thirty dollars ($30.00); 7. The D. Family Trust does not own any other assets. Moreover, no other family trusts were created since January 2018, by the parties. The present agreement is signed in Town A on this 27 th day of March 2018. (

s) A. V. (

s) E. D. A. V. E. D. Applicant Defendant (

s) Gerald Blackman (

s) Jean Bélanger

MNP Gerald Blackman BDO Canada Jean Bélanger [ 15 ] The appellant testified that this was not his income or his worth, [13] and after the signing of the Agreement , he filed, through his then lawyer, a Statement of Income and Expenditures and Balance Sheet (Form III) declaring, for the fiscal year 2017, a total income of $43,746 and a net worth of $606,850. [14] [ 16 ] The judge concluded that the Agreement was the equivalent of a judicial admission, and he therefore based his determinations of child/spousal support and provision for costs on the financial situation of the appellant as disclosed therein.

He wrote that: [11] The wife is asking the Court to set the child and spousal support under the assumption that the father earns from 550 000 $ to 750 000 $ per year. The husband’s declared income comes in contradiction with that assertion. For example, the 2016 declared income is 52 542.43 $ and for 2017, 53 595 $ [fn. omitted]. The husband’s testimony is to the effect that business has been difficult in the last few years and that he is unable to obtain, for his business, the contracts he had in the past.

Apart from his testimony to that effect, no other evidence is made of this situation. […] [13] The husband’s testimony and declared income are rather difficult to accept in the face of the agreement filed by the parties concerning his notional income and his net worth and which are based on the report of the parties’ respective expert accountant [fn. omitted]. [14] The document titled Agreement regarding the net worth and notional income of defendant was signed by the parties and their experts during the trial.

The salient aspects read: […] [15] In the eyes of the Court this agreement must be seen as an admission. It establishes the net worth of the defendant and his notional income since 2015. This was a highly contested issue between the parties. For example, the wife’s expert opined the notional income was 1,3 million dollars [fn. omitted]. On the opposite, the father’s expert estimated the notional income at 86,052 $ [fn. omitted].

The agreement indicates the experts met and agreed on various aspects including the defendant’s net worth and notional income which was set between 550 000 $ and 750 000 $. [16] In the written arguments, the husband does not address the issue of the admission and how the Court should deal with it. He argues that his health does not allow him to work as much as before and that he does not have the requisite financial capacity to attend to his wife’s request for support. [17] The admission indicates yearly notional income for the husband between 550 000 $ and 750 000 $ for the period running from 2015 to 2018.

This is not a contested issue but rather one which is agreed to by the husband. The experts did not testify and the Court is of the view that it must give effect to the agreement filed by the parties. [18] There is no justification for the Court to set aside an admission made in the course of a judicial process, and which, squarely contradicts the affirmation of the father regarding his declared income and his ability to earn it. […] […] [21] An admission binds not only the parties to it but also the Court [fn. omitted].

Therefore the admissions filed will be retained as evidence of the father’s true income and net worth. [22] In any event, the Court must point out that the father has little or no credibility in its eyes. The Court is satisfied the evidence shows the father arranged for a change in the matrimonial regime in 2002 and manipulated the mother in signing a renunciation. It is not credible for the father to affirm these changes were beneficial to the mother and were aimed to protect her financially.

The same can be said of the attempt by the father to oppose to the mother the consent on accessory measures of June 2012 and upon which the Court will comment at a later stage in the present judgment. The father benefited from the various corporations he created and had access to money. As such there is nothing wrong in creating corporations or a Trust, what is wrong is to attempt to convince a court that he is financially strapped and is unable to provide support for his children or his wife.

The agreement, as to his notional income since 2015, his net worth and the value of the Family Trust, speaks volume to the fact the father is financially well-off. […] [67] The absence of financial capacity is, in the eyes of the Court, a frivolous and unmeritorious argument.

The Court has already expressed its view that the agreement filed concerning the defendant’s worth and notional income is an admission which may not be contradicted. [68] Indeed, the defendant would like this Court to completely evacuate the agreement he filed as regards his notional income and his net worth, and which is distinct from the value of the family Trust. The agreement cannot be more clear and is worth quoting anew: 2. The net worth of E. D. is situated between two million five hundred thousand dollars and three million dollars; 3. The notional income of E.

D. for the years 2015, 2016, 2017 and 2018 will be set between five hundred and fifty thousand dollars and seven hundred and fifty thousand dollars; [69] Yet the defendant files a Statement of income and expenditures and balance sheet, under oath dated June 11, 2018, which utterly ignores these figures. Incredibly, it indicates a gross salary of 43 746 $ for 2017 and a net worth of 606 850 $ [fn. omitted]. This statement is in fact identical to a previous one dated March 23, 2018. In 2015, he filed a similar statement, dated September 22, 2015

showing a gross income of 63 488.88 $ and a net worth of 789 000 $. [70] This effort by the defendant to avoid reality and defy his own agreement filed at trial seriously undermines his credibility.

It is obvious he has the financial ability to pay spousal support and/or a lump sum. [ 17 ] Neither the allegations found in the appellant’s motion for stay of execution, nor the various exhibits appended thereto (including the notice of appeal and the revocation and disavowal proceedings filed in the Superior Court) or the explanations added by counsel for the appellant are sufficient to establish an apparent weakness in these determinations. [ 18 ] In his Amended application for revocation of judgment , the appellant explains the situation in the following manner: 23.

THAT as is detailed herein the Applicant respectfully submits that at the time of the signature of the " Agreement-Net Worth and Notional Income " (Exhibit P-4) on March 27 th , 2018, the Applicant did not understand the content of the Agreement, did not understand the judicial consequences of the Agreement and was furthermore led into error as to inter alia the content and effect of the Agreement by his own attorney and the gross negligence of his expert, Mr. Jean Bélanger, both of whom exceeded the scope of their respective mandate; […] 28.

THAT the Applicant’s failure to understand the “ Agreement-Net Worth and Notional income " (Exhibit P-4) is clearly demonstrated inter alia by the fact that on June 11 th 2018; the Applicant’s attorney filed with his Written Pleadings a Statement of Income and Expenditures and Balance Sheet (Form III) on behalf of the Applicant dated and signed by the Applicant, wherein, for the fiscal year 2017, the Applicant declares total income in the amount of $43 746.00 and a net worth in the amount of $ 606,850.00; 29.

THAT as noted by the Honourable Justice Duprat, J.S.C. in his Judgment (Exhibit P-1), the June 11 th , 2018 Form III was “ identical to a previous one dated March 2018 " filed by the Applicant’s attorney during the hearing on the merits; 30. THAT in fact, and as shall be adduced by the Applicant at the Hearing on the Merits of the present Application, and specifically in relation to the completion of the

section entitled “ Assets and Liabilities ” contained in the Form Ill’s signed by the Applicant, at all times, Me Samy Staltari informed the Applicant that the Assets and Liabilities which were the object thereof are comprised of Personal Assets and Liabilities as well as Family Patrimony Assets and Liabilities and NOT Corporate and Family Trust Assets and Liabilities; 31.

THAT it is clear and unequivocal that the Applicant would not have signed the Form Ill on June 11 th , 2018, subsequent to the Hearing on the Merits had he understood the meaning, significance and implication of the content of the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4); 32. THAT moreover, the Applicant never ratified any purported admission appearing from the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4) and continued to testify during the Hearing on the Merits that his total income was in the approximate amount of $ 53,595.00; 33.

THAT more importantly, the Applicant’s credibility was gravely affected due to the contractions between the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4) and the Form Ill signed by the Applicant on June 11 th , 2018 and filed by the Applicant’s attorney with his Written Pleadings; 34.

THAT the Applicant further respectfully submits that his own attorney, Me Samy Staltari, could not have understood the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4) given that, on June 11 th 2018, Me Staltari prepared and proceeded to have the Applicant sign the Form Ill, which is manifestly inconsistent and clearly without any merit with respect to the content of the “ Agreement-Net Worth and Notional Income ” (Exhibit P4); […] 38.

THAT it is imperative that this Honourable Court intervenes for the purpose of Revoking the Judgment of November 21, 2018 and of the purported admission on the part of the Applicant, given the gross negligence and manifest errors committed by the Applicant’s Attorney and Applicant’s expert; […] 44. THAT the Applicant’s attorney and expert exceeded the scope of their mandate by advising and recommending that Applicant sign the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4) without having the required financial documentation and information in their possession therefore: 45.

THAT the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4) is clearly flawed and is not valid; 46. THAT the Applicant respectfully requests that any purported admission contained in the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4) be revoked in view of Me Samy Staltari’s representations and ill-founded advice to Applicant, Mr. Belanger’s gross negligence and the Applicant’s consequential error, all of which are detailed and reiterated in the Applicant’s Originating Application in Disavowa l; a copy whereof is communicated as Exhibit P-6; […] 54.

THAT it is evident by his attorneys’ actions that the Applicant never understood what his attorneys prepared and presented to him for signature on March 27 th , 2018, and thereafter on June 11 th , 2018 and that as a matter of fact and law, Applicant never ratified the “ Agreement-Net Worth and Notional Income ” (Exhibit P-4);

[ 19 ] In his Amended originating application for disavowal , the appellant declares that: 17. The Applicant respectfully submits that the Agreement he signed on March 27 th 2018 Exhibit P-5, is flawed, null and void; 18. At the time of the signing of the Agreement Exhibit P-5, the Applicant did not understand what he was signing and was led into error by his attorney and expert Mr. Jean Bélanger; 19. More specifically, with respect to the circumstances relating to the signing of the document Exhibit P-5, the following events occurred; 20.

It is to be noted, that Defendant Me Samy Staltari represented the Applicant that it was “preferable and in his own interest to sign said documents”; 21. Defendant further represented to Applicant that it was in “his best interest and it would expedite matters and therefore Applicant should sign said document”; 22. THAT the mise en cause’s attorney confirms in her own written pleadings that said meeting between the experts and parties was to expedite matters; […] 26. It goes without saying that the Defendant felt enormous pressure on March 27 th 2018 and did not clearly understand the document he was signing; 27.

More specifically, the Applicant signed document Exhibit P-5, due to the expert and Defendant’s fault and gross negligence; 28. That it is to be noted that Mr. Patrick Grosjean confirms in his report dated December 21, 2018, that both experts committed gross negligence and could not establish Applicant’s notional income for the years 2016, 2017 and 2018, for the reasons more fully disclosed in his report and communicated herein as Exhibit P 6 29. The Applicant would not have signed the document Exhibit P-5 (…) had the Defendant not led him into error and thereby vitiating his consent; […] 32.

Evidently, the Applicant did not understand what he was signing on March 27 th 2018 (…) since the Defendant himself filed with his written pleadings a Form III based on an Income of 43 746.004 for 2017 and 2018 and a Net Worth of 606 850.00$ […] 36. That Plaintiff never ratified the document and in fact, continued to testify during the hearing that his gross income was in the approximate amount of 53,595.00$; 37. That due to the Defendant’s acts and Mr.

Jean Bélanger’s gross errors, the document Exhibit P-5 signed by the Applicant, was interpreted as a judicial admission by the Honourable Justice Duprat J.C.S., which causes a grave prejudice to the Applicant who maintains that said admission was made due to his expert’s and Defendant’s fault, both of whom exceeded the scope of their mandate; […] 39.

Evidently the Defendant did not understand the Form Ill Exhibit P-5, that he made Applicant sign on March 27 th 2018; since he later prepared and recommended that Applicant sign a Form Ill on June 11 th 2018; whereby he declares a Total Income for 2016 in the amount of 52 542.43$ and a Total Income for 2017 in the amount of 53,595.00$; 40.

The Applicant’s duly sworn Statement of Income and Expenditures (Form Ill) dated June11 th 2018, was filed by Defendant with his written proceedings and clearly demonstrates, that Defendant could not have understood the document since he had the Applicant sign said Form Ill, which is inconsistent with the document; [ 20 ] For its part, the notice of appeal states that: 25. On the second day of the Trial, namely on March 27, 2018, the parties and their respective forensic experts signed an Agreement, which the Trial Judge interpreted as constituting a judicial admission. 26.

The Trial Judge erred in fact and in law, by not taking into consideration Appellant’s testimony to the effect that he never ratified the said Agreement. The Trial Judge further erred in fact and in law by failing to consider Appellant’s testimony that Appellant did not understand the aforementioned Agreement and that he only signed same based on the ill-founded legal advice provided to him by his then Attorney. The Trial Judge accordingly failed to take into consideration that Appellant’s consent was vitiated, rendering the said Agreement null and void and of no effect whatsoever. […] 28.

Appellant intends to demonstrate, inter alia in the context of an Application for Revocation of Judgment and Stay of Execution of Judgment and an Originating Application in Disavowal and Application to Stay the Execution of Judgment (both of which are presently pending before the Court in First Instance), that Appellant’s credibility was gravely affected and was negatively qualified by the Trial Judge due to the gross negligence of his then Attorney and expert.

[21] As seen earlier, Duprat J. took notice of the contradiction between the Agreement, on the one hand, and the appellant’s Form IIIand testimony, on the other (a contradiction which affected the appellant’s credibility), but he clearly explained why he chose to rely onthe former and, at this stage, it is impossible to conclude that he committed a palpable error by doing so. [22] It is difficult indeed to understand how the appellant could have misconstrued the Agreement, as alleged in his notice of appealand revocation/disavowal proceedings.

This Agreement (see supra, para. [14]) is not particularly complicated and is written in plainenough language, especially for an experienced businessman (and one who was embroiled in a dispute that this Agreement preciselysought to solve).[15] It is simple, concise and unambiguous. One cannot but observe that the appellant will face a very heavy burden intrying to establish that he did not fully appreciate the Agreement or was misled by his attorney or his expert into signing it, and that hisconsent was vitiated.

For the moment, these are only allegations, unsupported by any evidence or commencement of proof that wouldestablish their prima facie plausibility. [23] For these reasons, it is impossible to conclude to the existence of an apparent weakness in the judgment a quo. [24] As well, the appeal and the motion for a stay raise questions of fact, evidence and credibility only. There is no serious issue oflaw which would need to be discussed by the Court and could justify suspending provisional execution. [25] This would normally be enough to dismiss the motion for a stay.

Exceptionally, the importance of the prejudice eventually to besupported by a party may however be such that it will effectually negate the right of appeal and justify a stay of provisional execution,even in the absence of a weakness in the judgment or that of any serious question of law.[16] Is it the case here? In other words, is therisk of a significant and irreparable prejudice to the appellant so great that a stay should be ordered despite the first condition not beingsatisfied? [26] Irreparable prejudice to the appellant. As stated in Friedrich c.

Friedrich,[17] which dealt with provisional execution underart. 661 C.C.P.: [6] In order to demonstrate that the appeal is likely to cause him a serious or irreparable prejudice, the applicant needs to adduceevidence thereof, which, as explained by my former colleague Paul-Arthur Gendreau, J.A., must be done in the following manner: Cela dit, il appartient au requérant, intimé en appel, de faire la démonstration des faits qui autoriseraient un juge d'exercer ce pouvoirdiscrétionnaire.

En raison du caractère particulier du remède recherché, il doit, pour satisfaire son fardeau, dépasser le stade desallégations vagues, générales ou hypothétiques et étayer son dossier de faits précis, clairs et concrets. Pour cela, puisque la Cour n'est pasune instance de procès, il devra soumettre affidavits et documents, seule façon de présenter une preuve en appel, sauf circonstances trèsexceptionnelles. À ce sujet, je ne vois aucune différence avec la façon de faire que j'ai suggérée dans l'arrêt Camino Del Sol c. BanqueRoyale du Canada ((1994) (QC CA), R.J.Q. 23).

Il va de soi que l'appelant peut, de son côté, et de la même manière,répondre aux allégations de son adversaire. [fn. 3: Lebeuf v.

Groupe S.N.C.-Lavalin inc., (QC CA), [1995] R.D.J. 366,p. 370.] [7] Justice Gendreau was dealing with an application to stay provisional execution, under the former Code of Civil Procedure, [fn.omitted] but the same rule applies here mutatis mutandis, in light of the third paragraph of art. 101 C.C.P. [27] As far as the burden of proof is concerned, the same rule applies to the stay governed by art. 660 C.C.P. [28] Has the appellant discharged his burden in this respect? [29] The following paragraphs of the appellant’s motion are relevant: 30.

THAT Respondent shall not suffer any serious or irreparable prejudice if the execution of the Duprat Divorce Judgment (ExhibitR-1) is suspended pending the adjudication upon the Revocation Proceedings (Exhibit R-9), the Disavowal Proceedings (Exhibit R-10 enliasse) and the Appeal Proceedings (Exhibit R-11 en liasse); 31.

THAT in the event the suspension of execution of Judgment requested herein is not granted, Appellant shall suffer serious andirreparable prejudice given that Appellant’s residence, vehicle and other moveable assets shall imminently be sold; in order to satisfy aJudgment that is not yet final, and which may in fact be revoked, 32.

THAT continuing the execution proceedings in relation to a Judgment that is not yet final and which may be revoked shall causethe parties to expend money in professional and other fees which may ultimately prove to be unnecessary, pending the outcome of theRevocation Proceedings (Exhibit R-9), the Disavowal Proceedings (Exhibit R-10 en liasse) and the Appeal Proceedings (Exhibit R-11 enIiasse); 33.

THAT continuing the execution proceedings in relation to a Judgment that is not yet final and which may be revoked does notsatisfy the requirement to act with proportionality, as required by law; [30] These allegations are vague or trite, to say the least, and it is worth noting that the appellant does not expressly declare that he isfinancially unable to comply with the support and provision for costs orders.

There is actually scant evidence in the file as constituted ofhis financial inability to pay, unless one counts the fact that a safeguard order was requested in order to prevent the sale of the Ferrari[18]and that a stay would apparently be required in order to stop the sale of furniture and other personal belongings scheduled forFebruary 28. We are implicitly invited to conclude that, had the appellant been able to pay what he owes, he would not have needed toask for a stay.

We are similarly invited to conclude that the appellant cannot pay what he owes on an income of $50,000 a year or out ofassets worth $600,000. All of this, however, is not particularly convincing, considering the trial judge’s above-mentioned findings. Theexistence of the alleged prejudice, indeed, depends entirely on the nullity of the Agreement, a questionable proposition at best, whichrenders said prejudice all the more hypothetical. [31] It is true that, in his Amended application for revocation of judgment, the appellant (who also filed an affidavit stating that all

facts alleged therein are true) declares that: 59. THAT in fact, Applicant does not have the financial resources, the financial capacity nor the financial liquidity to honour the Judgment of Divorce and accordingly, the Applicant is completely distraught and trusts that this Honourable Court shall recognize and acknowledge the severity of the damages caused to the Applicant as a result of the fault and negligence of Me Samy Staltari as well as Mr.

Jean Bergeron, expert as detailed herein and reflected in the Court record. [ 32 ] As indicated earlier, however, there is no evidence in the appeal record to support this assertion. No “ faits précis, clairs et concrets ” were established, no supporting documents were filed. [ 33 ] But should we consider that the appellant may eventually be successful in his revocation and disavowal applications or in his appeal, in which case provisional execution of the support and provision for costs orders might be problematic?

For the time being however, we can only speculate about the chances of success of these applications, which, as far as one can surmise without the benefit of a complete file, do not appear to be very high. As indicated earlier, the appellant bears a heavy burden in this regard. The same can be said of the chances of success of the appeal, considering the appellate standard of review that will apply to the judge’s factual findings. [ 34 ] The principal difficulty for the appellant, at least in theory, appears to lie in the retroactive character of the support orders granted by the trial judge.

Retroactive spousal support alone, as of January 4, 2019, amounts to $512,500, which is undoubtedly considerable, but does not appear unreasonable if the appellant’s income and net worth are indeed those determined by the trial judge on the basis of the Agreement . [ 35 ] Finally, although this was not alleged by the appellant, common sense dictates that it might be difficult for the respondent to reimburse such an amount, or part of it, should the appeal be successful: Is that reason enough to suspend provisional execution? It is not.

From the respondent’s perspective, indeed, she has largely been deprived (and the parties’ children as well, to a lesser extent) of alimentary support since 2015, i.e. since the beginning of the divorce proceedings. This is precisely why art. 660 C.C.P. provides for the provisional execution of support payments.

That being said, the respondent will no doubt be careful about spending that retroactive amount of money before the conclusion of the appeal and of the proceedings pending before the Superior Court. [ 36 ] On balance, the situation does not favour the stay of provisional execution, nor a partial stay. * * [ 37 ] Subsidiarily, on the day the present motion was heard (January 17, 2019), the appellant suggested that provisional execution be stayed until a panel of the Court decides on a motion for indispensable new evidence to be filed shortly.

The nature of this new evidence is not clear, although one may suppose that it will be similar to the evidence – yet unknown – that will be adduced in support of the appellant’s applications for revocation and disavowal. It must, however, be noted that, as of today, no such motion has been filed, according to the plumitif . In such circumstances, the suggestion is not appropriate. * * [ 38 ] One last remark. According to art. 547, para.

g) of the former Code of Civil Procedure , lump sums (art. 589 C.C.Q. ) were usually not treated as “alimentary pension” (“ pension […] alimentaire ”, in the French version of the code) subject to provisional execution as of right. [19] The same

interpretation applies mutatis mutandis to art. 660, para.

(1) C.C.P. : the words “support payments” (“ une pension […] alimentaire ”) do not include the lump sum ordered pursuant to art. 589 C.C.Q. (such as the one granted to the respondent), and, in the present circumstances, neither does such lump sum qualify as a support provision (“ provision ”) pursuant to art. 660, para.

(1) C.C.P. [20] * * [ 39 ] The respondent filed a motion for provision for costs and security for costs in appeal. [ 40 ] On the provision for costs, the respondent, at the hearing of January 17, 2019, was referred to the Superior Court. [ 41 ] There are no reasons to order security for costs. FOR THE ABOVE-MENTIONED REASONS, THE UNDERSIGNED: [ 42 ] DISMISSES the Appellant’s application for the suspension/stay of execution of a judgment dated November 21, 2018 ; [ 43 ] DISMISSES the Application of A.

V. seeking a provision for costs and a security for costs ; [ 44 ] The whole, without legal costs, in light of art. 340, para. 2 C.C.P. MARIE-FRANCE BICH, J.A. Mtre Robert Pancer Mtre Angeliki Papadimitropoulos Phillipps Friedman Kotler For the Appellant

Mtre Raphael Levy Levy Tsotsis avocats For the Respondent Date of hearing: January 17, 2019