2016 QCCS 1176, 2016 QCCS 1176

Droit de la famille — 16604 2016 QCCS 1176 JC0BM5 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-04-005945-960 DATE: March 18 th , 2016 IN THE PRESENCE OF: THE HONOURABLE SUZANNE COURCHESNE, S.C.J. P. F. Plaintiff vs. J. S. Defendant and X Mis-en cause JUDGMENT 1. OVERVIEW [ 1 ] The parties are the parents of the mis-en-cause X, who is presently 26 years old and financially independent.

The Father seeks to annul child support arrears for the period from January 1997 to January 2012, based on his assertion that he made direct payments to the Mother. [ 2 ] Subsidiarily, the Father asks the Court to declare that the arrears from 1997 to April 2005 are prescribed [1] and to readjust the amount of arrears accordingly. [ 3 ] The Mother contests. 2. CONTEXT [ 4 ] In November 1996, following their separation, the parties signed a consent to judgment according to which the Father agreed to pay an amount of $70 per week to the Mother for the support of their child X.

This consent was homologated by the Court. [ 5 ] The Father maintains that he made regular payments, in cash, directly to the Mother, for which he never requested nor obtained any receipt. He asserts that he was never contacted by the Mother with respect to unpaid child support and that he paid her over $20 000 since 1997. He also occasionally provided the child with clothes and he gave him a car in 2007. Since then, he has had no contact with X. [ 6 ] In 2005 or 2006, the Father was contacted by Revenu Québec regarding the arrears.

It was recommended to him by the government agent to file a request before the Court if he wanted the child support to be modified or suspended. The Father, however, did not act upon this and did not seek legal advice. Eventually, from 2005, some payments of child support were made through direct deductions from his salary and other sources of income. These payments were irregular and varied depending on the Father’s salary [2] . [ 7 ] In 2011, the Father testifies that, because of the child support arrears, his passport was seized and that he could no longer visit his relatives in Jamaïca.

He eventually consulted an attorney, and in February 2013, he instituted a Motion to annul child support payments and arrears. [ 8 ] The Mother is a nurse. She suffered from a stroke in May 2015 and is currently receiving long term disability benefits. She denies having ever received any money in cash from the Father for the payment of child support. Her contacts with the Father, following their separation, were very irregular and limited. She made efforts to maintain a relationship between X and his father, to no avail.

She was the sole caregiver for X and received assistance and financial support from her parents. [ 9 ] She admits that she did not contact the Father nor did she file any motion or take any other legal measure to enforce her rights with

respect to the child support arrears. She explains that their relationship was not good, that he remained verbally abusive and that she did not want him to know where she lived because she was afraid of him. She relied on the authorities to undertake the necessary measures. The Father’s professional situation was unstable and she did not have any information with respect to his employment. [ 10 ] X confirms that he had very limited contact with his father and no relationship whatsoever with him for the past seven years.

He recognizes that his father contacted him on an irregular basis by telephone during his high school years. X finished his studies in 2011 and is currently working.

He resided with his mother at his maternal grand-parents’ home between 1996 and 2012. [ 11 ] In February 2013, following the Father’s Motion to annul child support payments and arrears, the parties filed a Partial Agreement according to which child support was cancelled as of January 1 st 2012 and any further payment made by the Father was to be applied to the arrears. [ 12 ] The Father presents before the Court a Motion to annul child support arrears.

According to the statement of account from Revenu Québec, dated January 7 th , 2016, the arrears started accumulating from January 1997 and reached a total, as of the end of December 2015, of $43 973. 3- THE ISSUES TO BE DECIDED BY THE COURT 1. Did the Father prove that he made cash payments to the Mother for child support? 2. Can the Father be released from payment of the child support arrears? 3. Are the arrears prescribed in part? 4. DISCUSSION AND ANALYSIS 1. Alleged payments of child support [ 13 ] The Court is not satisfied that the Father has demonstrated cash payments of alimentary pension for the child.

He never asked the Mother for a receipt, did not keep any record of his alleged payments and has not filed any document, written communication or other element of proof in support of his assertions, which are categorically denied by the Mother.

He offered an imprecise and unconvincing testimony in that regard. [ 14 ] Furthermore, when he was first contacted by a government agent in 2005 or 2006 regarding the arrears for child support due since 1997, the Father did not contest the claim and he did not otherwise act upon the statement of account stating that he owed over $30 000 in accumulated arrears of child support. He only filed his first Motion in February 2013. [ 15 ] The Father’s behaviour does not corroborate his assertions that he made cash payments of child support to the Mother. 2.

Release from the payment of child support arrears [ 16 ] The parties were not married. The Civil Code of Quebec applies to the Father’s demand. [ 17 ] Art. 596 of the Civil Code of Québec ( C.C.Q. ) provides one possible means for the debtor to be released from his child support payment for arrears that have been due for over six months: 596. A debtor from whom arrears are claimed may plead a change, after judgment, in his condition or in that of his creditor and be released from payment of the whole or a part of them.

However, in no case where the arrears claimed have been due for over six months may the debtor be released from payment of them unless he shows that it was impossible for him to exercise his right to obtain a review of the judgment fixing the alimentary pension. [ 18 ] In order to be released from the payment of the arrears, the Father must allege and demonstrate a change in his or the Mother’s condition.

Yet, the Father’s Motion and his testimony do not raise nor establish any modification in his condition or in the Mother’s situation (except for her current disability) which would justify a release of the Father’s obligation to pay the child support arrears. [ 19 ] The accumulation of arrears or the difficulties to pay the child support do not constitute sufficient reasons to reduce or cancel the arrears since they do not represent a change in the debtor’s situation as required by

article 596 C.C.Q.: L'accumulation des arrérages, non plus que la difficulté d'exécution d'un jugement, ne sauraient constituer des motifs justifiant la réduction prononcée par le juge puisqu'il ne s'agit pas de situations nouvelles ouvrant la porte à une modification de la pension alimentaire.

L'impossibilité de payer doit exister au moment où les montants sont dus et non pas après une accumulation d'un montant considérable [3] . [ 20 ] Furthermore, since the arrears have been due for over six months, the Father had to show that it was impossible for him to exercise his rights to obtain a modification of the judgment of November 1996 [4] . [ 21 ] The Court of Appeal has explained that the impossibility to act is not an absolute impossibility but a relative incapacity to act which should be analyzed according to the circumstances of each case [5] .

The impossibility to pay the child support must exist at the time the amounts are due and not after the accumulation of arrears [6] . [ 22 ] The Father adduced no evidence of incapacity to pay the child support or to make decisions in his own interest. He did not act when contacted by the government agent in 2005. He waited until his passport was seized in 2011 and even then, he waited further to

February of 2013 before filing his proceeding. He did not prove any impossibility to exercise his rights with regard to the child support payment and arrears. [ 23 ] The Father also pleads that the Mother renounced to her rights to claim the arrears, which represents an impossibility to act. He alleges that she neither claimed the arrears nor contacted him in that purpose. [ 24 ] The courts have characterized an alimentary creditor’s renunciation to their rights as equivalent to the debtor’s impossibility to exercise his rights.

However, mere inaction or mere passage of time are, on their own, insufficient to establish renunciation by the alimentary creditor. The burden of proof lies on the alimentary debtor to prove renunciation of the child support. Such renunciation must be clear and unambiguous, whether express or tacit [7] . [ 25 ] The renunciation by the Mother to the child support is not established. She testified that she did not have information with respect to the Father’s professional situation, which was unstable. She relied on the government to undertake measures to collect the child support payments.

There is no evidence of clear and unequivocal renunciation from the Mother. [ 26 ] The Father’s demand to be released from the payment of child support arrears is dismissed. 3. Prescription of the arrears [ 27 ] On a subsidiary basis and during argumentation, the Father submits that the arrears accumulated prior to April 2005 are prescribed.

This argument is not well founded. [ 28 ] In the Partial Agreement signed and homologated by the Court on February 19 th , 2013, the Father acknowledged that he owed child support arrears since the 1996 judgment and that all further payments were to be applied to said arrears, in the following terms: (…) WHEREAS the plaintiff owes alimentary pension arrears for the amount of 56 623.17$; THE PARTIES AGREE AS FOLLOW (sic): 1. THAT the

preamble hereto is true and forms an integral part of the present agreement; 2. THAT the alimentary pension that the Plaintiff pays the defendant rendered under the judgment of the Honorable judge Jean-Pierre Senecal, dated November 21, 1996, is annulled as of January 1 st 2012; 3. THAT the payments made by the Plaintiff after January 1 st , 2012 for alimentary pension shall be applied to the arrears; 4. There shall be no suspension of execution with respect to arrears of child support; 5.

THAT each party further acknowledges that they have executed and signed the present agreement voluntarily, and that willingness to sign the present agreement did not result from any undue stress, fear, duress, improper understanding, undue influence or false inducements; 6. (…) [ 29 ] Prescription of support payments runs from the date each instalment is due by virtue of

article 2931 C.C.Q. The arrears due between the judgment of November 1996 and February 2003 were prescribed as of the date of the signature of the Partial Agreement, considering the ten-year prescription of

article 2924 C.C.Q. applicable to support judgments. However,

article 2885 C.C.Q. states: 2885. Renunciation of prescription is either express or tacit; tacit renunciation results from

an act which implies the abandonment of an acquired right. [ 30 ] By his signature of the Partial Agreement while being represented by legal counsel, the Father expressly, without ambiguity, admitted that he owed the arrears of child support which were due since the judgment of November 1996 and accepted that all further payments be applied to said arrears. Therefore, he renounced to their acquired prescription. [ 31 ] As for the arrears due between February 2003 and January 2012, which were not prescribed on the date of the Partial Agreement, their prescription was interrupted due to the acknowledgment of the Father of his debt regarding said arrears.

Article 2898 C.C.Q. states: 2898. Acknowledgement of a right, as well as renunciation of the benefit of the time elapsed, interrupts prescription. [ 32 ] Consequently, the child support arrears are not prescribed and remain due by the Father. [ 33 ] Finally, the Father asks the Court to reduce the monthly payments of child support arrears, from $150 to $100 every two weeks. However, he did not demonstrate that the current instalments are excessive and that he suffers from financial difficulties. FOR THESE REASONS, THE COURT : [ 34 ] DISMISSES Plaintiff’s motion to annul child support arrears; [ 35 ] THE WHOLE each party paying its own legal costs.

__________________________________ SUZANNE COURCHESNE, S.C.J. Me Jessica Barrett Sogolex avocats inc. Attorney for the Plaintiff Me Veronica Vallelonga Cormier, Simard Avocats Attorney for the Defendant Date of hearing: January 18, 2016