T. (M.) v. A. (H.), [1995] 1 S.C.R. 445

H.A. Applicant

v.

M.T. Respondent

Indexed as: T. (M.) v. A. (H.)

File No.: 24534.

1995: February 6.

Present: Sopinka J.

Motion for a stay of execution

Practice ‑‑ Supreme Court of Canada ‑‑ Stay of execution ‑‑ Contempt of court in family law case ‑‑ Imprisonment ‑‑ Interim release ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 65.1.

Cases Cited

Applied: RJR‑‑MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311; referred to: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901; Poje v. Attorney General of British Columbia, S.C.C., No. 7942, October 16, 1952; Cotroni v. Commission de police du Québec, S.C.C., No. 13822, February 18, 1975.

Statutes and Regulations Cited

Code of Civil Procedure, R.S.Q., c. C‑25.

Criminal Code, R.S.C., 1985, c. C‑46, s. 679 [am. c. 27 (1st Supp.), s. 141].

Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 65, 65.1 [ad. 1990, c. 8, s. 40].

MOTION for a stay of execution of a judgment of the Quebec Court of Appeal rendered on January 17, 1995, affirming a judgment of Zerbisias J., [1992] R.D.F. 386 (sub nom. Droit de la famille ‑‑ 1605), finding the applicant in contempt of court and sentencing him to four months in prison. Motion granted.

Julius H. Grey, for the applicant.

Muriel Micaela Marie Louise De Toledo, on her own behalf.

The following are the reasons delivered by

1 Sopinka J. ‑‑ This is an application under s. 65.1 of the Supreme Court Act, R.S.C., 1985, c. S‑26, for an order of interim release of the applicant who has applied for leave to appeal an order committing him to prison for a period of four months for failure to obey a judgment of the Superior Court of Quebec.

2 The applicant was found to have failed to pay a sum of $25,000 on account of arrears of support payments. Briefly, the history of the proceedings is as follows. On July 31, 1991, Bishop J. rendered judgment against the applicant ordering payment of, inter alia, support payments. On May 7, 1992, the applicant was found in contempt by Zerbisias J. of the Superior Court, District of Montreal, [1992] R.D.F. 386 (sub nom. Droit de la famille ‑‑ 1605), and sentenced to four months in prison provided that he was to be released on payment of the sum in arrears. The applicant appealed to the Court of Appeal and, pending appeal, was released on his own recognizance pursuant to the Code of Civil Procedure, R.S.Q., c. C‑25, apparently on the basis that this was a civil contempt. The Court of Appeal dismissed his appeal and affirmed the judgment of Zerbisias J.

3 Pending appeal and for a period of over one year, the applicant did not make any attempt to abscond nor did he pose a threat to the respondent. During the argument the respondent, who appeared in person, raised the question of criminal proceedings which she had brought against the applicant but no material was filed to support this allegation and I was advised that the charge was dismissed. There is nothing in any of the judgments to support the view that the applicant's continued incarceration is justified because he poses a risk to the respondent. In any event, this is in no way the purpose of the applicant's incarceration. In this regard, it is significant that the applicant's imprisonment can be terminated on payment of the sum in arrears.

4 I am satisfied that the criteria for an order under s. 65.1 of the Supreme Court Act have been met as recently reaffirmed in RJR‑‑MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. There is a serious question raised by the appeal, irreparable harm is manifest and the balance of convenience clearly favours the applicant. There is, however, no specific legislative provision for this Court to grant bail. In criminal cases, orders for interim release on appeal to this Court are dealt with under s. 679 of the Criminal Code, R.S.C., 1985, c. C‑46. This proceeding, however, in origin and character is a civil contempt, and arguably the Criminal Code provisions do not apply. Although disobedience of an order issued in a civil proceeding may in certain circumstances constitute a criminal contempt, I doubt that this is such a case. See United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901.

5 It would appear, therefore, that the only firm basis upon which interim release can be ordered by this Court in the circumstances is under s. 65.1. In this regard, I note that in Poje v. Attorney General of British Columbia, S.C.C., No. 7942, October 16, 1952, and Cotroni v. Commission de police du Québec, S.C.C., No. 13822, February 18, 1975, this Court has in the past ordered interim release under s. 65 of the Supreme Court Act. In my view, in light of the reach of s. 65, as explained in MacDonald, supra, there is ample scope under s. 65.1 for this type of order.

6 Accordingly, the applicant is released until a decision is made on the application for leave to appeal and, if granted, until the appeal is disposed of. In the event that the application for leave to appeal or the appeal is dismissed, the applicant shall surrender to the warden of the prison in which he is presently confined. I am also persuaded by the respondent that as a further condition of this order, the applicant is not to exercise his right of access to the children of the marriage under the judgment of Bishop J. during the period of interim release. The application for leave is to be expedited. Costs of the application in the appeal.

Judgment accordingly.

Solicitors for the applicant: Grey Casgrain, Montreal.