2012 QCCA 508, 2012 QCCA 508

Droit de la famille — 12583 2012 QCCA 508 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021877-113 (500-12-305741-104) DATE: MARCH 20, 2012 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. C. C. APPELLANT – Plaintiff v. W. G. RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant C. C. appeals the sentence imposed on the respondent W. G. by the Superior Court, District of Montreal (the Honourable Mr. Justice Mark G. Peacock) on July 14, 2011 following his judgment rendered on June 20, 2011 finding Mr. G. guilty of contempt of court.

The contempt consists of Mr. G. failing to respect the terms of an interim order of the Honourable Madam Justice Nicole Gibeau dated October 19, 2010 requiring him, together with other conclusions that are not in issue, to pay Ms. C. alimentary support of $1,200 per week. [ 2 ] The sentence of incarceration is in the following terms: [49] ORDERS that Mr. W.

G.. be imprisoned for a period of two weeks to be served consecutively beginning on Friday, July 22, 2011 at 9:00 a.m. until completion, unless he has paid the amount of interim spousal support arrears of $1,300.00 due to his wife, the Plaintiff, receipt of which must be confirmed by an attestation of Me. Heft, attorney for Ms. C., confirming he has received this amount "In trust".

The said attestation must be faxed to the office of the undersigned and received before 3:00 p.m. on Wednesday, July 20, 2011, failing which the Court will issue a "Mandat de Dépôt pour Outrage au Tribunal", whereby - in default of any agreement reached with the authorities to voluntarily present himself at the detention centre - he will be arrested and taken to the detention centre to ensure his attendance at the fixed day and hour to begin serving the imprisonment imposed by this sentence; [50] ORDERS the Director of the detention facility to detain him there until this sentence has been completed, unless liberated as provided hereinunder; [51] DECLARES that after incarceration has begun, Mr.

W. G. will be freed from his imprisonment by paying the sum of $1,300.00 as payment of arrears and ORDERS that Mr. W. G. be liberated, after his incarceration has begun, upon production into the file of this Court of an attestation from Me. Heft, the attorney of Ms. C., confirming receipt in his trust account of the amount of $1,300.00; [52] ORDERS the provisional execution of the present judgment, notwithstanding appeal and without any security; [53] ALL WITH COSTS against the Defendant, Mr. W. G.. [ 3 ] The essence of Ms.

C.'s appeal is to seek an increase in the period of incarceration in light of the ongoing nature of the contempt at the time the sentencing judgment was rendered. She also solicits a declaration that Mr. G. may be released only upon the payment of the entirety of the accumulated arrears as of the date of the judgment of this Court. [ 4 ] In a judgment being released concurrently in case number 500-09-021815-113, the Court has allowed Mr. G.'s appeal against the judgment finding him guilty of contempt of court, set aside the verdict and ordered a new trial. [1] It follows that Ms.

C.'s appeal has become academic and accordingly should be dismissed. [ 5 ] In dismissing the appeal, however, the Court is not to be taken as expressing any opinion on the duration of the incarceration the trial judge ordered, nor the amount of arrears Mr. G. would have to have paid to avoid incarceration, nor the legality of the means the

trial judge specified in paragraph [49] of his judgment to prove payment of the arrears to avoid incarceration. [ 6 ] Similarly, the Court is not to be taken as endorsing the legality of the condition contained in paragraph [51] of the judgment to the effect that once Mr. G.'s incarceration had begun, he could have been released in the manner and upon the proof referred to therein that the arrears had been satisfied during his incarceration. [ 7 ] Finally, the Court notes that the trial judge awarded costs to Ms.

C. in both the judgment finding him in contempt and in the sentencing judgment that is the object of this appeal. Costs could only have been properly awarded once, since contempt proceedings constitute a single proceeding, despite the fact that in this case there were two stages to the proceeding. [ 8 ] Since the Court has set aside the judgment of the Superior Court that found Mr. G. guilty of contempt, it follows that the order condemning him to pay costs in the sentencing judgment is not executory. FOR THESE REASONS, THE COURT: [ 9 ] DISMISSES the appeal, without costs. FRANÇOIS PELLETIER, J.A. ALLAN R.

HILTON, J.A. RICHARD WAGNER, J.A. Mtre Andrew H. Heft ANDREW H. HEFT, AVOCATS-ATTORNEYS For the appellant Mtre Allan Adel ARCHAMBAULT ADEL TRUDEL For the respondent Date of hearing: January 19, 2012