2011 QCCA 600, 2011 QCCA 600

Droit de la famille — 11840 2011 QCCA 600 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-019681-097 ( 500-12-263560-025 ) MINUTES OF THE HEARING DATE: March 31, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. NICOLE DUVAL HESLER, J.A. JACQUES A. LÉGER, J.A. APPELLANT(

S) RESPONDENT ATTORNEY(

S) M. N. Mtre Guylaine Duplessis DUPLESSIS ROBILLARD RESPONDENT(

S) PETITIONER ATTORNEY(

S) S. C. Mtre Jay Turner OIKNINE & ASSOCIATES ATTORNEY(

S) Motion of Petitioner for clarification of judgment. Clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING 8 h 46 Beginning of the hearing. 8 h 47 Court's comments. 8 h 48 Intervention of Mtre Duplessis. 8 h 49 Argument of Mtre Turner. 9 h 02 Argument of Mtre Duplessis. 9 h 16 Reply by Mtre Turner. 9 h 18 Suspension of the hearing. 9 h 27 Resumption of the hearing. Judgment is rendered – see page 3. 9 h 31 The hearing is concluded.

Marc Leblanc Clerk BY THE COURT JUDGMENT [ 1 ] The law is clear that the interest is owed as of the date of the judgment even if the judgment is silent on the matter ( Finecast Ltd. C. Segal , 2011 QCCA 36 ). [ 2 ] In this instance, Petitioner-Respondent did seek interest and the additional indemnity on the lump sum she was claiming. The matter was not discussed in first instance and no argument was advanced which would justify not granting the additional indemnity. Indeed, the issue was not raised at all, which probably explains why the judgment of first instance was silent on both. No cross appeal

was filed and the issue was not raised at the hearing in appeal, nor in the factums of the parties. [ 3 ] Petitioner-Respondent now asks for a clarification of the judgment granting the appeal in part, since Respondent-Appellant is refusing to pay the interest and the additional indemnity on the lump sum and provision for costs awarded to her in first instance and in appeal. [ 4 ] In A v.

B et al. ( 2007 QCCA 735 ), the Court stated : Quoique non automatique, l'attribution de l'indemnité additionnelle demeure la règle. (par. 96). [ 5 ] Respondent-Appellant argues that the Motion for clarification is the equivalent of an Inscription in Appeal outside the delays on the issue of interests and the additional indemnity and should therefore be dismissed. [ 6 ]

Article 520 C.C.P. does not give rise to the remedy sought as far as the additional indemnity is concerned.

As to the interest, the law being settled, it is appropriate to grant the Motion for Clarification in part, with costs against Respondent. [ 7 ] For these reasons, the Court: [ 8 ] Grants Petitioner's Motion for Clarification of Judgment, in part; [ 9 ] Substitutes the following paragraph for paragraph 191 of the Judgment of First Instance: [191] ORDERS the Father to pay a lump sum by way of alimentary support to the Mother in the amount of $248,935.08, the whole bearing interest from the date of the Judgment of first instance herein, and ORDERS that the Mother use this amount to pay off the loan secured by way of hypothec (Exhibit R-7) on her residence located at […] in Town D and her line of credit in the amount of $33,373.13; [ 10 ] Substitutes the following paragraph for paragraph 178 of the Judgment of First Instance: [178] ORDERS the Father to pay provision for costs in the amount of $87,000.00, to be paid within 20 days of the present Judgment, which sum shall bear interest from the date of the Judgment of first instance herein; [ 11 ] The whole with costs against Respondent.

ANDRÉ ROCHON, J.A. NICOLE DUVAL HESLER, J.A. JACQUES A. LÉGER, J.A.