2012 QCCA 1705, 2012 QCCA 1705

Droit de la famille — 122598 2012 QCCA 1705 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-020897-104 ( 500-12-284938-069 ) MINUTES OF THE HEARING DATE: September 18, 2012 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. CLÉMENT GASCON, J.A. APPELLANT ATTORNEY(

S) J. S. In person RESPONDENT ATTORNEY(

S) D. Z. Mtre Monica Maynard MONICA MAYNARD, AVOCATE Motion of the appellant for a safeguard order to continue spousal support during the appeal process.

Clerk: Marcelle Desmarais Court Room: Antonio-Lamer HEARING 15 h 56 Submission by Ms. J. S.. 16 h 19 Submission by Mtre Monica Maynard. 16 h 30 Reply by Ms. J. S.. 16 h 36 End of arguments. 16 h 36 Suspension. 16 h 41 Resumption. BY THE COURT: Judgment – see page 3 Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] J. S. has brought an appeal, now pending before the Court, from a divorce judgment rendered by the Superior Court on July 2, 2010. Respondent D. Z. has also appealed that judgment. The Court record indicates that the file in appeal has progressed very slowly. Ms.

S.'s factum was only filed as recently as July 2012; Mr. D. Z.'s factum has yet to be filed. [ 2 ] Ms. S. now petitions the Court pursuant to

article 46 C.C.P. for a safeguard order for spousal support during this appeal and asks, as well, for a provision for costs. *** [ 3 ] Ms. S. argues that her current needs justify an order of support during the appeal. [ 4 ] Pursuant to the judgment under appeal, Ms. S. was awarded spousal support for a period of two years, expiring on July 2, 2012. She contends that the judge was mistaken to fix a term in the circumstances because, at the time, she had just begun a new law practice and did not have the earning capacity to justify a limited term.

She says that the respondent also failed to pay her indexed support, and he owes arrears. Ms. S. adds that her present […] practice does not provide her with sufficient income to meet her needs. Finally, she argues that because the alimentary order is subject to provisional execution notwithstanding appeal, the effect of the appeal is to suspend the term imposed by the Superior Court. For all these reasons, she asks the Court to order the respondent to continue to pay the spousal

support until final judgment on appeal. [ 5 ] The petition to continue spousal support during the appeal is dismissed. Ms. S.'s arguments impugn the justification for placing a term on the alimentary order at the time of the judgment on appeal. This is one of the substantive issues on appeal and is not properly the object of a safeguard order. While it is true that the alimentary order is subject to provisional execution notwithstanding appeal, the order was executed and has now expired. It is unfortunate to see that the parties have not pursued their appeal diligently.

Had they done so, the appeal would most likely have been heard by now. [ 6 ] Ms. S. may have grounds to sue for arrears or for support based on changed circumstances. We express no opinion upon this matter, except to observe that the question properly belongs before the Superior Court where, as with comparable alimentary claims, evidence of changed circumstances can properly be considered. *** [ 7 ] The petition for a provision for costs is also dismissed. Provision for costs in this setting is indeed alimentary in character, as Ms. S. argues, and may well be available on appeal.

It is, however, a well-established principle that a petition for provision for costs, even for an appeal, should be brought before the Superior Court where it may be decided based on her needs and current circumstances. [1] [ 8 ] The present case is unlike circumstances in the recent judgment of this Court in Chouinard v. Ménard . [2] In the latter case, a provision for costs was awarded based on uncontested affidavit evidence, in a matter relating to improper proceedings, pursuant to articles 54.1, 54.3 and 501 C.C.P. These provisions of the Code of Civil Procedure have no bearing on the petition before us.

In addition, unlike the situation in this other case, Ms. S. has not provided us with an affidavit properly supporting the assertion that she is in need. [ 9 ] Given the nature of the proceedings, there will be no order as to costs. FOR THESE REASONS , the Court: [ 10 ] DISMISSES the motion, without costs. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. CLÉMENT GASCON, J.A.