2014 QCCA 779, 2014 QCCA 779

Droit de la famille — 14820 2014 QCCA 779 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTRÉAL No: 500-09-024315-145 (540-12-018504-134) MINUTES OF THE HEARING DATE: April 2, 2014 THE HONOURABLE MR. JUSTICE MARTIN VAUCLAIR PETITIONER COUNCEL M. S. Mtre Andrew H. Heft ME ANDREW H. HEFT, AVOCATS- ATTORNEYS RESPONDENT A. A. In person MOTION FOR LEAVE TO APPEAL (Art. 29, 511 C.C.P. ) Clerk: Asma Berrak Court Room: RC.18

HEARING 9:29: Commencement of hearing. Identification of parties. 9:29: Submission by Mtre Heft. 9:38: Submission by Mr. A.. 9:42: Réplique de Mtre Heft. 9:42: Discussion between the judge and Mr. A.. 9:43: Suspension of hearing. 10:08: Resumption of hearing. 10:09: Judgment-see page 3. 10:12: Conclusion of hearing. Asma Berrak Clerk JUDGMENT [1] I am seized with a motion for leave to appeal of a judgment rendered on February 26, 2014 by Fraiberg, J. of the SuperiorCourt, District of Montreal, for provisional measures for inter alia, custody, access, child support, and spousal support.

The Applicantseeks leave to appeal the conclusions in relation with child and spousal support for 2014. [2] The motion has to be decided under articles 29 and 511 of the CCP. Considerable deference is due to trial judges' decisions inthese matters: see M. (M.E.) v. L. (P.), (SCC), [1992] 1 S.C.R. 183.

Review of the decision is not possible unless theApplicant shows an error of law, which by its nature affected the issue in dispute, or a palpable and overriding error of fact. [3] For the following reasons, I will dismiss the motion. [4] First, the Applicant fails to show a reviewable error, but simply asks the Court to reassess the evidence and substitute its ownopinion for that of the trial judge.

Second, the decision leaves no doubt that Justice Fraiberg was very alive to the issues raised by theApplicant: the fact that one of the children suffers from a handicap, expenses in relation to the family residence, the risk of foreclosure,Mr. A.'s lack of credibility and the difficulties in establishing his income, as well as the issue of a non-recurring income of $63,000. [5] He was indeed very critical of Mr. A.'s credibility and suspicious about his revenue.

He had to rely on circumstantial evidenceto determine it, which he did after an extensive review of the available facts. [6] Thus, Justice Fraiberg found that even in including the after-tax value of Mr. A.’s fringe benefits in his income, in thisparticular case, he has very limited liquid funds after paying child support. The judge wrote: [97] It must be remembered that notwithstanding the grossed-up fringe benefits of $31,913 that the Court imputes to him, Mr.

A. hasonly $31,200 in liquid funds available to pay support and to live on. [98] Paying just child support of $895.83 a month, he would have only $14,083.50 of after-tax income, while Ms. S. would have$30,212. [99] True, adding the $8,480 after-tax value of the fringe benefits he receives personally (i.e. all of them except the SUV), he wouldhave $22,563.50, but he cannot use the fringe benefits to pay spousal support. It would have to come out of the $14,083.50, and indeedwould consume it entirely. [100] The free use of a car and a cell phone and $50 a week of restaurant meals would be scant consolation for Mr.

A. … [103] In these circumstances, the Court does not see how it can order Mr. A. to pay spousal support for 2014 and subsequent yearsunless his financial situation improves materially.

[104] It is urgent that Ms. S. look for and take any full-time work she is capable of doing, not in order to thereby provide a measure of relief to Mr. A., but for her own welfare and that of the children. [ 7 ] Again, there is no error of law and no palpable and overriding error of fact. The decision is within the judge’s discretion. [ 8 ] Finally, in my opinion, the applicant fails to demonstrate that the pursuit of justice, within the meaning of

article 511 CCP, requires that leave be granted. [ 9 ] FOR THESE REASONS , the motion for leave to appeal is DISMISSED without costs. MARTIN VAUCLAIR, J.A.