2010 QCCA 2172, 2010 QCCA 2172

Droit de la famille — 103253 2010 QCCA 2172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020753-109 ( 540-12-014465-082 ) MINUTES OF THE HEARING DATE: NOVEMBER 25, 2010 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. PIERRE J. DALPHOND, J.A. YVES-MARIE MORISSETTE, J.A. APPELLANT(

S) ATTORNEY(

S) C. M. Mtre Maria R. Battaglia RESPONDENT(

S) ATTORNEY(

S) G. S. Mtre Orna E. Hilberger ATTORNEY(

S) On appeal from a judgment rendered on May 31, 2010 by the Honourable Madam Justice Chantal Masse of the Superior Court district of Laval NATURE OF THE APPEAL : Child support – spousal support Clerk: MARC LEBLANC Court Room: PIERRE-BASILE-MIGNAULT HEARING 10 h 43 Beginning of the hearing. 10 h 43 Argument of Mtre Battaglia. 11 h 06 Suspension of the hearing. 11 h 26 Resumption of the hearing. 11 h 26 Argument of Mtre Battaglia (continuation). 11 h 41 Argument of Mtre Hilberger. 12 h 10 Reply by Mtre Battaglia. 12 h 12 Suspension of the hearing. 12 h 29 Resumption of the hearing. Judgment rendered – see page 3. 12 h 34 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] It is apparent from the record on appeal that the judge below, who heard and decided a Motion for Interim and provisional Measures, may have mistakenly held that, in order to maintain the family lifestyle of the respondent and her children, an amount of 7 904,49$ was appropriate. [ 2 ] This determination, according to the appellant, was premised on the erroneous factual assumption that the appellant’s yearly income was 300 000 $.

The Appellant also raises a number of alleged errors in the assessment of the respondent’s needs. [ 3 ] This Court, as a general rule, is very reluctant to vary or rescind provisional orders in family law cases, for they are made on the basis of an incomplete record and they are not legally binding on the judge who later on will render judgment on the merits of the case. [ 4 ] Nevertheless, in this instance, the Court is of the view that the amounts awarded as arrears, over and above the ongoing support payments, place too heavy a strain on the appellant pending the final resolution, in light of all the relevant evidence available to the parties, of the outstanding issues.

Such is particularly the case in view of the fact that the amount so calculated was fixed, as was noted by the member of this Court who granted a motion to suspend execution, without consideration to whether the respondent required, on a provisional basis, that so great a sum be paid forthwith. [ 5 ] There is no need at this stage for an immediate payment of arrears, considering inter alia the amount which the appellant claims was taken away from him by the respondent and which exceeds 100 000 $. [ 6 ] As for the ongoing support payments, the judge below omitted to take into account the child support payments, which payments would have reduced the deficit by at least 2 000 $ and reduced the spousal needs proportionately.

Furthermore, some of the amounts claimed at the interim stage appear inflated and others are anticipated expenses which ought to be dealt with at a later stage. [ 7 ] For these reasons, the Court: [ 8 ] ALLOWS the appeal, without costs; [ 9 ] QUASHES paragraphs 61 and 63 of the judgment a quo ; [ 10 ] SUBSTITUTES an amount of 3 000 $ to the amount of 6 000 $ appearing in paragraph 64 of the judgment a quo ; [ 11 ] RESERVES respondent’s right to any arrears assessed on the basis of a complete record; [ 12 ] All other conclusions in the judgment a quo remaining unchanged. FRANÇOIS PELLETIER, J.A. PIERRE J.

DALPHOND, J.A. YVES-MARIE MORISSETTE, J.A.