2012 QCCA 520, 2012 QCCA 520

Droit de la famille — 12599 2012 QCCA 520 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021815-113 (500-12-305741-104) DATE: MARCH 20, 2012 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. W. G. APPELLANT – Defendant v. C. C. RESPONDENT – Plaintiff JUDGMENT [ 1 ] THE COURT : On the appeal from the judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice Mark G. Peacock) rendered on June 20, 2011 that declared the appellant W.

G. guilty of contempt of court; [ 2 ] For the reasons of Hilton, J.A., with which Pelletier and Wagner, JJ.A agree; [ 3 ] ALLOWS the appeal, without costs; [ 4 ] SETS ASIDE the judgment of conviction of contempt of court; [ 5 ] REMANDS the file for a new trial before a different judge of the Superior Court for the adjudication of the respondent's contempt proceedings. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. Mtre Allan Adel ARCHAMBAULT ADEL TRUDEL For the appellant Mtre Andrew H. Heft ANDREW H.

HEFT, AVOCATS-ATTORNEYS For the respondent Date of hearing: January 19, 2012 REASONS OF HILTON, J.A.

I THE FACTS AND THE PROCEEDINGS [ 6 ] This is an appeal from a judgment of the Superior Court that found the appellant W. G. in contempt of court for his failure to make spousal support payments to his wife C. C. pursuant to the terms of an interim order. The issues in appeal relate to the effect of decisions by the trial judge concerning his adjudication of objections to evidence Mr. G. sought to introduce. [ 7 ] Mr. G. and Ms. C. were married in 1989. It was a second marriage for each of them following the death of Mr. G.'s first wife and Ms. C.'s divorce from her first husband.

When they married, they were respectively 57 and 46 years old. [1] Their common domicile was established in the home in which Mr. G. had lived with his first wife and raised the two children of that marriage, X and Y. Subsequent to a change of their matrimonial regime in 1992 from partnership of acquests to separation of property, Mr. G. transferred ownership of the matrimonial home to Ms. C.. [ 8 ] On September 13, 2010, Ms. C. initiated divorce proceedings against Mr. G.. The conclusions of the most recently amended proceeding in the record of this Court dated February 15, 2011 show that Ms.

C. is seeking, amongst other conclusions: • monthly support payments of $6,350 or alternatively a lump sum payment of $300,000 to be satisfied by her retention of ownership of the family residence, its contents and an automobile that had been used by the parties; • a compensatory allowance of $200,000; • an order for Mr. G. to reimburse an outstanding mortgage loan on the family residence in the amount of $55,000; • an order for Mr. G. to reimburse an outstanding joint line of credit in the amount of $15,000 that is secured by a second mortgage on the family residence; • an order that Mr.

G. renew the household furniture garnishing the family residence to the extent its current value corresponds to the gifted sum of $75,000; • a declaration that there be an unequal division of the family patrimony. [ 9 ] The interim alimentary pension that Mr. G. was first ordered to pay was determined by Gibeau, J. shortly after the initiation of proceedings. It was for $500 per week plus the household expenses relating to the family residence. At the same time, Mr. G. was ordered to vacate the family residence.

The amount of the support payment was adjusted upwards on October 19, 2010 from $500 per week to $1,200 per week. The reason given by Gibeau, J. to justify her order was as follows: CONSIDERING that the financial statut (sic) quo that existed during the marriage shall be maintained on an interim basis after the institution of the legal proceedings. [2] [ 10 ] As is typically the case with interim orders, Gibeau, J. did not hear any testimony and relied solely on the written materials and argument presented to her. Her order of October 19, 2010 has been successively renewed.

It was in force when the trial of the contempt proceedings occurred in May of 2011, and it remained in force when this appeal was heard in January of 2012. [ 11 ] Mr. G. made the payments that were owed under the first order and even paid $1,100 in advance. Since the issuance of the second order, however, he has not made any payments to Ms. C.. [3] [ 12 ] Ms. C. then initiated contempt proceedings and served Mr. G. with a Special Rule ordering him to appear before the Superior Court in answer to that charge. She alleged that Mr.

G. was in arrears to the extent of $1,300, which represented two weeks of alimentary pension minus the $1,100 paid in advance. Prior to this motion being heard, two other procedural developments occurred. [ 13 ] First, Mr. G. sought to revise the existing interim order that Gibeau, J. had issued. Gagnon, J. dismissed his motion, describing it as a disguised appeal. Second, Ms. C. served seizures by garnishment in the hands of X and [Company A] pursuant to

article 641 C.C.P . The latter company had been founded by Mr. G. in the 1950s. Both X and the company filed negative declarations to the seizures in which they declared that they did not owe salary or wages to Mr. G.. [ 14 ] Mr. G. had sold his remaining share in the company in equal parts to his children X and Y in 2004, that is to say well prior to the date of the seizures by garnishment on November 26, 2010. Y passed away suddenly in November of 2009. Thus, X was the only shareholder of the company when the seizures were served. [ 15 ] Ms.

C. filed a contestation of the negative declarations of the two garnishees. The matter came on for hearing before Downs, J. After hearing several witnesses, he concluded, without however having made specific findings of fact, that Ms. C. had not satisfied the evidentiary burden on her to establish the falsity of the two negative declarations. [ 16 ] Ms. C. appealed the judgment of Downs, J.

In a separate judgment being released concurrently with the judgment in this case, the Court dismisses her appeal. [4] [ 17 ] The basic conclusion of the Court's judgment is that the evidence before Downs, J. did not show on a balance of probabilities that Mr. G. was ever employed by his son, and that he had ceased to be an employee of the company no later than 2005. It follows that neither X nor the company owed salary or wages to Mr. G., despite the fact that X personally pays the rent for Mr.

G. to live in a retirement home and provides him $300 per week as pocket money for other day to day living expenses. [ 18 ] The Court also concludes in that judgment that assuming a seizure by garnishment pursuant to

article 625 C.C.P . had been

served on the garnishees, there was no evidence that would have allowed Downs, J. to determine how much, if anything, X owed his father arising out of a supposed under evaluation of the purchase price of the one-half share Mr. G. sold him. [ 19 ] At the hearing on contempt, Mr. G. attempted to justify his failure to pay the interim order by alleging that he did not have the necessary financial means.

To establish an evidentiary basis for this defence, he sought to introduce the transcript of the hearing before Downs, J. as well as related exhibits already in the court file. [ 20 ] His counsel had reason to think he would be able to do so because of comments to that effect by counsel for Ms. C. at a case management conference held before Courteau, J. on February 21, 2011. At that time, counsel for Ms. C. asked the judge to set a date for the contempt hearing. He represented that "it's a three (3) hour case", while Mr. G.'s attorney was rather looking for "one day of court".

During the discussion before Courteau, J., the following exchange took place: BY Me ADEL [5] No, I want… I discussed with my colleague that, I want the evidence that was given on January 21 before Mr. Justice Downs, I want to use that evidence in the contempt of Court case. It's going to be… BY Me HEFT [6] I have no problem, I have no problem with that. BY THE COURT No problem, have it transcribed and … BY Me HEFT Yes, we've ordered the transcription.

BY Me ADEL And we may have to supplement it, but I mean that's … it's basically the same evidence. [ 21 ] While acknowledging the content of the foregoing, counsel for Ms. C. states in his written argument in this appeal that "he did so not knowing whether Appellant would testify, and believing that the transcript would be filed subject to Appellant making himself available for cross-examination". On that basis, he objected to the production of such materials before the trial judge hearing the contempt proceedings. [ 22 ] The trial judge took these objections under reserve.

Not knowing what the outcome would be of the reserved objections, Mr. G. then sought a postponement of the hearing in order to prepare some of the important witnesses who had testified before Downs, J. His objective was to have them testify before the trial judge, much as they did before Downs, J. The trial judge denied this request. [ 23 ] As a result, Mr. G.'s examined only one witness, X.

During the hearing, the trial judge also maintained several objections, the effect of which was to limit X's testimony to facts that occurred after the interim order of October 19, 2010. [ 24 ] In his judgment on the merits in which he found Mr. G. in contempt, the trial judge maintained Ms. C.'s objections to the production of the transcripts before Downs, J. and the other documentary evidence Mr. G. sought to introduce. He went on to conclude that Ms. C. had established the necessary elements of contempt of court beyond a reasonable doubt.

In doing so, he was very harsh in his assessment of the testimony of X that sought to explain the basis on which he provided money to his father. The trial judge also noted that even if one were to accept that Mr. G. does not have the financial means to pay Ms. C. $1,200 per week, the money he was receiving each week from his son was sufficient to have allowed him to at least have paid a part of the $1,200. II ANALYSIS [ 25 ] There are two elements to Mr. G.'s submissions. The first challenges the trial judge's decision to maintain Ms.

C.s objections to the production in the contempt proceedings of the record before Downs, J. and other exhibits already in the same court file. The second complains that the trial judge denied Mr. G. his right to a full and complete defence. Mr. G. contends that he did so by refusing him a postponement of the hearing after he had decided to reserve judgment on Ms. C.'s objection, thus preventing him from adducing evidence in support of his defence. I will deal with each of these submissions in turn. (

i) The admissibility of the transcripts and exhibits [ 26 ] Mr. G. argues that the trial judge should have dismissed Ms. C.'s objections to the admissibility of the documentary evidence. In particular, he says that the affidavits and transcripts already filed in the court record do not constitute hearsay for the purpose of the hearing of the motion in contempt of court. [ 27 ] In his written argument, he states that "the definition of 'instance' ('judicial proceeding') in the second paragraph of

Article 2843 CCQ is sufficiently large to include a hearing between the same parties in the same court file." He also makes a similar argument concerning the exhibits produced before Downs, J. since they had been filed in the same court record. [ 28 ]

Article 2843 C.C.Q. , which defines testimony, is in the following terms:

2843. Le témoignage est la déclara​tion par laquelle une personne relate les faits dont elle a eu personnelle​ment connaissance ou par laquelle un expert donne son avis. Il doit, pour faire preuve, être contenu dans une déposition faite à l'instance, sauf du consentement des parties ou dans les cas prévus par la loi. 2843. Testimony is a statement whereby a person relates facts of which he has personal knowledge or whereby an expert gives his opinion.

To make proof, testimony shall be given by deposition in a judicial pro​ceeding unless otherwise agreed by the parties or provided by law. [ 29 ] The word "instance" in French and the expression "judicial proceeding" in English are not defined in the Code of Civil Procedure , and have given rise to differing points of view as to their meaning. [7] That being said, I do not subscribe to the

interpretation Mr. G. proposes. The Supreme Court has made it clear that civil contempt of court proceedings are " strictissimi juris " and quasi-penal in nature . [8] Therefore, judges hearing such proceedings cannot apply the same rules of civil procedure and evidence that they do in ordinary civil cases. The most obvious example of that constraint, which is present in this file, is that a defendant in a contempt proceeding cannot be compelled to testify, either on discovery or during the trial. [ 30 ] In this context, I do not agree with the position Mr.

G. asserts that the exhibits filed in other proceedings between the parties and the transcript of hearings before other judges elsewhere in the court record, in which the appellant is compellable, are automatically admissible in the contempt proceedings, where he is not compellable. It is easy to see that an accused in such circumstances would enjoy the best of both worlds, having his testimony in other contexts considered while not being subject to the crucible of cross-examination in the contempt proceedings. [ 31 ] In the same vein, it would have been impermissible to allow Ms.

C. to introduce the transcripts and exhibits, had she sought to do so, in order to prove the contempt, without exposing her and any of the other witnesses to cross-examination by Mr. G.'s counsel. [ 32 ] In this respect, reference may be made to L.B. v. D.M . [9] in which Richer J. refused to decide, at the same hearing, a motion to modify rights of access and a motion in contempt of court, specifically because of the difference between the rules of evidence applicable to each type of motion.

She said this, with which I agree completely: [8] Le père a obtenu l'émission d'une ordonnance pour outrage au tribunal et l'audition sur cette requête n'a pas eu lieu, en dépit d'une réunion d'actions accueillie de consentement par le greffier adjoint. Une fois l'enquête débutée, il est apparu à la soussignée qu'elle ne pouvait pas entendre les deux requêtes simultanément, notamment en raison du fait que la preuve de la mère, sur sa requête en modification des droits d'accès, repose en grande

partie sur son témoignage. D'autre part, dans le cadre de sa requête en outrage au tribunal, le père invoque le non-respect des droits d'accès par la mère. Le Tribunal était d'avis qu'en raison de la nature fort différente des deux recours, nature civile d'une part et nature pénale d'autre part, et en raison des règles de preuve très différentes, voire même opposées de ces deux types de preuve, il devenait impossible, en l'espèce, d'appliquer simultanément et correctement les deux types de preuve au cours d'une même audience et ce, plus particulièrement en ce qui concerne le témoignage de la mère.

En effet, cette dernière n'est pas contraignable en matière pénale alors que la présentation de sa propre requête de nature purement civile nécessitait qu'elle témoigne, ce qu'elle a fait longuement. [Emphasis added.] [ 33 ] I therefore conclude that the trial judge was correct to have maintained Ms. C.'s objections. The propriety of reserving judgment on the objections, however, and whether doing so in this case deprived Mr.

G. of a full and complete defence, remain to be considered. (ii) The right to make full and complete defence [ 34 ] Although I have concluded that the trial judge correctly decided the objections to the production of the transcripts and exhibits, it is nevertheless the case that counsel for Mr. G. only became aware of the objection on the morning of the trial when he announced he did not intend to call his client as a witness. Counsel for Ms. C. accordingly objected to the filing of the transcripts and exhibits in the contempt proceedings.

Far from being a matter of bad faith on either side, it seems to me there was an honest misunderstanding between counsel as to exactly what had been agreed upon before Courteau, J. [ 35 ] When it became apparent that the trial judge was not going to adjudicate the objections that he later dismissed in his judgment on the merits, counsel for Mr.

G. immediately advised the trial judge that an eventual decision maintaining the objections "puts me in a very difficult situation because I have to call…then I have to call these witnesses again and it's not the way I prepared the case today." [ 36 ] The following exchange then occurred: BY Me ADEL You know, and my client is here in very serious situation… BY THE COURT No question.

BY Me ADEL … being accused of contempt of Court and this… and I need that evidence in the record and if the Court is telling me that if the Court… I mean you haven't decided yet, but if the Court were to decide that I can't… that this evidence is not admissible, then I would ask the Court for an adjournment so that I can bring the… that I can call the witnesses to testify and it would be on a different date obviously 'cause I can't get them here today. BY THE COURT Well, the problem you have, Mr.

Adel is this: I'm only here today. [Transcribed as written.] [ 37 ] The trial judge then adjourned for the luncheon break. When proceedings resumed, counsel argued the substance of Ms. C.'s objections, on which the judge reserved judgment for his judgment on the merits. Mr. G.'s counsel then called X as his only witness, followed by his cross-examination and argument on the merits of the contempt proceedings.

The proceedings were continued to June 10, 2011, at which time the trial judge rendered the judgment that is the subject of this appeal. [ 38 ] With great respect, I find the manner in which the trial judge dealt with this situation to be troubling. Taking objections under reserve and adjudicating them in the judgment on the merits is now a common practice in civil cases. The justification for doing so was explained in the reasons of Roger Brossard, J.A. in Roger v.

Gaz Métropolitain inc. et autres [10] It was an appeal from interlocutory judgments rendered during a trial maintaining objections. [11] In the course of his reasons, he said this, as it relates to the right to seek leave to appeal from such interlocutory judgments pursuant to the second paragraph of

article 29 C.C.P .: Cette disposition dont l'objet paraît avoir été à l'origine de ne pas encombrer le dossier en première instance d'une preuve pouvant éventuellement s'avérer illégale me paraît être susceptible d'être «repensée» à la lumière de l'expérience acquise depuis que cette disposition a été adoptée.

Si, d'une part, il est possible que dans certains cas la disposition puisse atteindre l'objet susdit, il est également fort possible que dans maints autres cas, son application ait le résultat de retarder indûment une instruction et le prononcé d'un jugement final par l'interruption de l'instruction en cours par suite d'appels dont l'effet est de la retarder.

Ce retard possible dans le déroulement de l'instruction et à l'égard du prononcé du jugement final est assurément nuisible aux justiciables qui soumettent leurs problèmes au tribunal tandis que l'encombrement possible du dossier par une preuve éventuellement jugée illégale peut être, en partie, corrigé, quant aux plaideurs, dans l'adjudication sur les frais.

Pour obvier au mauvais effet de la suspension de l'instruction par suite d'un appel sur le maintien d'objections à la preuve, le juge de première instance a à sa disposition un remède auquel il peut recourir suivant les circonstances: celui de retarder son adjudication sur l'objection à la preuve jusqu'à son jugement final tout au moins lorsque l'objection qu'on lui présente ne soulève qu'un simple manquement aux règles de procédures relatives aux modalités de la présentation de la preuve. […] [Emphasis added.] [ 39 ] This widespread practice, however, now extends well beyond the limitation suggested by the learned appeal judge in the closing portion of the extract I have quoted. [12] When applied indiscriminately to all kinds of objections, save those that the law specifies or that, by their nature, must be decided immediately, [13] reserving judgment on objections until the judgment on the merits can deprive counsel of an essential ingredient of oral argument: knowing what is and what is not in the record.

That is precisely what this case shows.

It also precludes counsel in some circumstances from exercising the right to seek leave to assert an interlocutory appeal, or if an objection is maintained after the evidence is closed and before oral argument, from adducing essential evidence in some other way that is legally admissible. [14] If it turns out that an appeal is taken against the judgment on the merits in which the objection is maintained, and this Court concludes that the trial judge erred with determinative effect on the ultimate outcome in his or her decision on the objection, the inevitable result will be an order for a new trial. [15] [ 40 ] That is surely at least as undesirable a consequence as the interruption of a trial by an interlocutory appeal, and far more likely to expose the parties to even greater expense should a new trial be ordered. [ 41 ] Quite simply, the practice of only adjudicating reserved objections in the judgment on the merits should be exercised with great caution as a matter of elementary fairness when the party against whom the judgment is rendered may suffer a prejudice of the type I have described.

For the same reason, counsel have to be alert to the potential consequences to their case of a reserved objection, and draw the trial judge's attention to those possibly adverse consequences so that the judge will be better able to evaluate whether it is preferable in the circumstances to adjudicate the objection during the trial rather than in the judgment on the merits. [ 42 ] I appreciate that in some circumstances, such as at the beginning of a trial, it will normally be prudent to reserve objections based on lack of relevance, until the judge has a fuller picture of the situation as the trial unfolds.

That does not inevitably mean, however, that judgment on the objections cannot be rendered at some point prior to the judgment on the merits. [ 43 ] I also appreciate that a counsel can intentionally provoke applications for leave to appeal interlocutory judgments that are only intended to cause delay. I would note, however, that judges of this Court can see such tactics for what they are, and are unlikely to grant leave.

Indeed, even in the best of circumstances, judges of this Court generally grant leave to appeal sparingly from judgments rendered during a trial, and when they do so, it is not automatic that they will suspend the proceeding in the trial court. [16] Moreover, trial judges now have other remedies at their disposal to impose sanctions for abusive proceedings that can act as a deterrent to anyone inclined to go down that unwelcome path. [17] [ 44 ] Reserving judgment on objections until the judgment on the merits, when applied in a quasi-penal proceeding such as civil contempt of court, is even more perilous, as the circumstances of this case show.

For reasons that are obvious, trial judges sitting alone or with a jury in criminal cases adjudicate objections as they arise or at the latest before the Crown or the accused declare their case closed, that is to say, before oral argument on the merits. Given the quasi-penal nature of contempt proceedings that can result in the

imposition of a substantial fine or imprisonment, judges presiding at such trials must treat objections to evidence in the same manner as if they were presiding at a criminal trial. [ 45 ] In civil cases, the practice of reserving objections until the judgment on the merits was recognized by the Supreme Court of Canada in Royal Victoria Hospital et al. v.

Morrow . [18] The issue there, however, involved a pure question of law as to whether the mother of the plaintiff, the respondent Morrow, could testify during discovery to an out of court statement made to her by a defendant physician, since deceased, that might constitute an extra-judicial admission of a fact in issue. The objection to the question was made during an examination on discovery, before the answer was given, and was referred to the trial judge for adjudication.

Pigeon, J., on behalf of the Court, observed that the mother had to repeat the statement from the physician in order to determine if it constituted an extra-judicial admission.

He said this: The extreme caution which must be exercised before admitting evidence of a statement made by a deceased person does not prevent taking the deposition under reserve, when the case is heard by a judge alone and there is a possibility that such a statement, the contents of which are not known, constitutes an extra-judicial admission. [19] [ 46 ] There was thus no potential inconvenience to the parties or counsel in those limited circumstances to allow the witness to testify under reserve of the objection, since the mother of the plaintiff was the only person who could testify as to what the deceased physician would have told her. [ 47 ] That is very different from what happened before the trial judge.

He gave no reason at the time the objections were argued why he was unable to decide their outcome immediately. Moreover, the record does not show that he considered whether doing so would work any prejudice on either party. In my opinion, the objections on which he reserved judgment could have been decided after oral argument on the objection with exactly the same result he reached in his judgment on the merits. In addition, his refusal to grant the adjournment Mr. G.'s counsel requested appears to have been more a matter of his own availability than it was a matter of concern for Mr.

G.'s right to a full and complete defence, not to mention his exposure to imprisonment, which the judge later ordered in his sentencing judgment. [ 48 ] In this case, the parties should have been informed of the trial judge's decision on the objection immediately after it was argued, or at the latest, before the close of Mr. G.'s proof. On the understanding the objection would have been maintained, the inevitable request of Mr. G.'s counsel for a postponement of the hearing would have to have been granted, for the reasons that counsel gave in the extract I have quoted in paragraph [35] above.

Indeed, it is ironic that in his judgment on the merits, the trial judge rejected most of Mr. G.'s factual arguments on the ground that insufficient evidence was made in support of them. That is precisely the evidence the trial judge precluded Mr. G. from making by not granting him the postponement. [ 49 ] Had such evidence been introduced anew before the trial judge, through the testimony of the witnesses Mr. G.'s counsel called at the earlier hearing before Downs, J., it would have enhanced Mr. G.'s chances of raising a reasonable doubt as to his guilt.

The judge's decision to reserve judgment on the objections until his judgment on the merits and to deny Mr. G. a postponement when it was clear he would be prevented from adducing the evidence necessary to raise a reasonable doubt therefore denied him the right to the full and complete defence to which he was entitled. [ 50 ] In that respect, I would also note that the judge observed that Mr. G. could have paid some part of the weekly sum owing from the funds made available to him by X, even if he was unable to pay $1,200 per week.

These comments were obiter dicta and I express no opinion on what the outcome of the contempt proceedings might have been had Mr. G. made partial payments. [ 51 ] For these reasons alone, Mr. G.'s appeal should be allowed and a new trial ordered. [ 52 ] I would also note, however, that during the testimony of X, the trial judge maintained many objections as to admissibility of evidence and effectively limited his testimony to "new facts" that occurred after the interim order.

In his written judgment, the judge referred to Droit de la famille – 3579 , [20] a sentencing judgment in which Rochon, J., as he then was, referred to the reasons of André Brossard, J.A. in Droit de la famille – 1605. [21] [ 53 ] This latter case shares some similarities with this one. There, the decision was rendered in a divorce context where the ex-wife had brought contempt proceedings against her ex-husband for non-payment of alimentary support.

The principal issue in dispute was whether the ex-wife had established beyond a reasonable doubt the mens rea of contempt of court despite the ex-husband's defence of impossibility to pay. [ 54 ] In that case, the trial judge found the ex-husband guilty of contempt essentially because the facts he was alleging to support his defence had already been rejected by the judge who granted the final judgment of divorce, at which time he fixed the alimentary pension payable to the ex-wife.

In appeal, the ex-husband criticized the reliance of the trial judge in the contempt proceedings on the factual conclusions of the judge who had granted the divorce, which was on the standard of proof of a balance of probabilities rather than one of guilt beyond a reasonable doubt that is required in contempt proceedings. [ 55 ] On behalf of the Court, Brossard, J.A. rejected this argument. He thus confirmed that the ex-husband was only allowed to raise new facts that occurred subsequent to the order fixing the alimentary pension.

He wrote: […] En l'instance la conclusion essentielle du juge du divorce fut à l'effet que, malgré toutes les prétentions de l'appelant, son analyse des bilans des chiffres d'affaires des commerces et de leur structure corporative le satisfaisait que l'appelant avait les moyens et les ressources financières pour payer les montants auxquels il devait le condamner .

Non seulement l'appelant en l'instance ne s'est jamais pourvu en appel du jugement au fond et des condamnations qu'il contenait, mais, de plus, et nonobstant l'écoulement du temps, il n'a jamais demandé de modification aux termes des mesures accessoires pour cause de faits nouveaux survenus depuis et qui l'auraient rendu incapable d'en respecter les termes.

Dans les circonstances l'appelant n'est pas admis à faire valoir contre la requête pour outrage, non pas des faits nouveaux, mais le fait que lors du jugement du divorce il n'avait pas les moyens de payer la pension alimentaire à laquelle le juge du divorce l'a condamné. [22]

[Emphasis added.] [ 56 ] This Court's judgment in Droit de la famille – 1605 is nevertheless distinguishable from the case of Mr. G.. In fact, an important element supporting the conclusion of Brossard, J.A. was his reliance on the careful analysis of the evidence undertaken by the trial judge who issued the alimentary pension order in the judgment granting the divorce, which only occurred after a lengthy trial. That is not the situation present here.

There is no analysis by Gibeau, J. in her judgment of the competing positions of the parties, much less an analysis of any testimony or other evidence, since there was none. Nor, for obvious reasons, did she make any findings of fact.

She did what a motions judge is supposed to do when faced with an application for an interim order, nothing more and nothing less. [ 57 ] When the order that has been allegedly infringed is an interim one in a family law context, the judge who hears a contempt proceeding cannot rely with the same degree of certainty on the factual underpinning of the order as if the judge had heard the case on the merits. As Mr.

G. correctly observes in his factum, "Interim and safeguard orders are rendered on a temporary and urgent basis without the defendant having an opportunity to make a full and complete defence, including the right to examine and cross-examine witnesses." [ 58 ] This is not to say a party who fails to respect an interim order can never be found guilty of contempt.

It does mean, however, that a defendant in such a proceeding has to be given some latitude to lead evidence that may be at odds with the untested factual assumptions underlying the interim order. [ 59 ] In this case, for example, the decision of Gibeau, J. to fix the interim spousal support order at $1,200 per week was based merely on her analysis of the proceedings and of the parties' affidavits and statements of income. Considering what was then at stake and the perceived limited duration of the order, it is possible that Mr.

G.'s financial situation may have been overestimated, and the exigibility in law of the money X provides to him presumed. As I have also mentioned, the fact of Mr. G. having been ordered to vacate the common domicile in the initial order of Gibeau, J. had the inevitable effect of disturbing the status quo that existed during the marriage that the motions judge sought to maintain in the subsequent order. [ 60 ] Therefore Mr.

G. is right to say that "[i]f [he] is not allowed to prove that he did not have the capacity to pay at the time that the Interim Order was rendered, then he could conceivably be held in contempt on the basis of prima facie evidence upon which the Interim Order was based". [ 61 ] This conclusion is also more coherent with the reasons of Gonthier J. in Vidéotron , in which he explained that, in contempt of court proceedings, "[t]he judge must allow the respondent a certain degree of latitude in respect of the relevance of the evidence presented in attempting to justify himself or herself". [23] III CONCLUSION [ 62 ] This case cries out for expeditious and definitive resolution in the Superior Court.

The parties have been governed by an interim order for an excessive period of time, with no date in sight for a trial on the merits. I do not underestimate the challenges facing Ms. C.'s counsel in light of the circumstances in which the parties find themselves. That being said, the procedure the trial judge adopted for the trial of the contempt proceedings leaves no choice but to intervene. [ 63 ] I would therefore allow the appeal, set aside the judgment of the Superior Court, and remand the file to a different trial judge for the adjudication of Ms. C.'s contempt proceedings.

I would do so without costs since the reason for the remand is attributable to the trial judge and not to Ms. C.. ALLAN R. HILTON, J.A.