2013 QCCA 1989, 2013 QCCA 1989

Droit de la famille — 133207 2013 QCCA 1989 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022893-127 ( 500-12-297359-089 ) MINUTES OF THE HEARING DATE: November 15, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. APPELLANT ATTORNEY(

S) D. V. Mtre Maria Rita Battaglia Maria R. Battaglia, Avocats RESPONDENT ATTORNEY(

S) E. W. Mtre Muriel Librati Teitelbaum Librati

On appeal from a Judgment rendered on June 15, 2012, rectified on June 29, 2012, by the Honourable Mr. Justice Mark Schrager of the Superior Court, District of Montreal. NATURE OF THE APPEAL : Access and supervision - Child support - Family Patrimony Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING Continuation of the hearing of November 14, 2013. Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT

[ 1 ] D. V. appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mark Schrager), rendered on June 15, 2012 and corrected on June 29, 2012, which granted a divorce between the parties and, inter alia , awarded custody of the two children of the marriage to E. W., with access rights for the appellant, ordered the appellant to pay child support and arrears and ordered the partition of the family patrimony and the partnership of acquests. [ 2 ] In his inscription in appeal, Mr.

V. alleges that the judge committed errors of law and of fact that amount to grounds for having certain conclusions bearing on access rights, support for the children and the division of property set aside. [ 3 ] On the morning of the hearing, however, the parties informed this Court that they had arrived at a partial agreement that settled a number of issues on appeal and left certain others outstanding. They asked that the agreement be included in the Court record. [ 4 ] The partial agreement treats some matters that have arisen subsequently to the judgment of the Superior Court.

Needless to say, this Court is seized of an appeal. These are not proceedings in the nature of a motion for a variation order or an application to homologate an agreement on access and support, both of which are properly brought before the Superior Court. With that in mind, the Court simply acknowledges the partial agreement but declines to make an order that the parties comply therewith. [ 5 ] That said, some of the grounds for appeal have been abandoned. The remaining grounds shall be treated under the eight headings that follow. I Access rights [ 6 ] The judge granted Mr.

V. access rights to the children on every second weekend, to be exercised alternatively in Ottawa (at the home of Mr. V.’s mother) and in Town A. On the Town A weekends, the father is permitted to be with the children on Saturday afternoon and several hours on Sunday. On the Ottawa weekends, the children are to travel to and from Ottawa by bus, at the parents’ shared expense, and stay there from Saturday morning until Sunday afternoon. Where the mother drives, gas expenses are also to be shared.

The judge provided an alternate order should the children visit him in Toronto, where he worked at the time of the judgment, that would have required him to arrange and pay for the children to travel there by air. [ 7 ] On appeal, Mr. V. submits that the trial judge unfairly reduced the access rights from what had been ordered as interim relief. Chrétien, J. had granted him access rights two weekends each month, from Friday at 6 p.m. to Sunday at 6 p.m., to be exercised either in Town A or in Ottawa.

Moreover, he argued that the trial judge should have granted access rights every other weekend to be exercised at his residence in Toronto with costs shared equally by the parents. He also objected to the sharing of certain gas expenses. [ 8 ] At the hearing, Mr. V. informed the Court that he no longer lives in Toronto and says the order made by the judge to that effect has no further object. [ 9 ] Moreover in their partial agreement, the parties have set forth the basis for a partially modified regime for the exercise of access rights by Mr.

V. that approximates what he seeks on appeal, allowing him access every second weekend from Friday at 6.p.m. to Sunday at 6 p.m., with one weekend to be in Ottawa unless the parties decide otherwise.

The agreement also contains modalities relating to notice and Christmas holidays that change the order made by the trial judge. [ 10 ] Notwithstanding their agreement, at the hearing it was plain that the appellant still objects to some aspects of the judge’s access order, including the regime for equal sharing of driving expenses. [ 11 ] In the circumstances, it is appropriate to dispose of the appeal as brought by Mr.

V.. [ 12 ] The judge made no error that would allow this order to be set aside. [ 13 ] The appellant bears the burden – a heavy one in matters relating to child custody – of showing a basis upon which the Court can disturb the trial judgment. In Van de Perre v Edwards , 2001 CSC 60 , para 13 , L’Heureux-Dubé, J. underscored the considerable deference owed to findings made by a trial judge in these matters.

She wrote that given the inherently discretionary character of decisions of this nature, "an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts." [ 14 ] The appellant failed to point to a reviewable error committed by the judge on the Van de Perre standard. [ 15 ] The judge properly exercised his discretion in fixing access, after hearing both parents, based on sole applicable criterion of the best interests of the children, pursuant to subsection 16(8) of the Divorce Act , RSC (1985), c 3 (2d supp).

He noted that the order was "similar" to that ordered as interim measure (which he was not bound to follow), except for changes made necessary by the distance between the parents' respective homes and the importance of respecting the children’s program of activities in Town A. His choice to impose certain costs on the father alone or on a shared basis was not unreasonable and not been shown to be unduly harsh given Mr. V.’s income. [ 16 ] In the circumstances, a reviewable error has not been shown by the appellant.

As a result, the original order stands. [ 17 ] The Court nevertheless acknowledges the partial agreement on access rights but does not order the parties to comply therewith. II Consent of father for trips to destinations outside of Canada [ 18 ] The judge held that the mother may apply for passports and travel outside of Canada without the father's consent. Mr. V. says this order amounts to an error of law, notwithstanding the custody order in favour of the mother, because the parents exercise parental authority together pursuant to

article 600 CCQ and both should have a say in foreign travel plans. [ 19 ] Here again, the parties’ partial agreement purports to settle the matter of foreign travel. Ms. W. undertakes to advise Mr. V. of

plans for vacations taken outside the country, and to do so at least one week before departure. The agreement says nothing, however, about the right to apply for passports or whether Mr. V. must consent to foreign travel and the Court will dispose of the appeal as brought by Mr. V.. [ 20 ] The judge made no reviewable error here. [ 21 ] At trial, the judge heard evidence from Ms. W. that suggested foreign travel had been made difficult in the past because of Mr. V.’s failure to respond to Ms. W.'s requests for consent in a timely fashion.

It is true that travel outside of Canada is, for most families, an unusual event that sets it apart from the ordinary day-to-day decisions for which a custodial parent can act alone. However,

article 600 CCQ does not impose, in all cases, a legal right of the non-custodial parent to consent to foreign travel or the obtaining of a passport. In the circumstances, the judge’s decision was not unreasonable. [ 22 ] Because the appellant has not shown a reviewable error, the original order stands. [ 23 ] The Court nevertheless acknowledges the partial agreement on foreign travel but does not order the parties to comply therewith. III Declaration to abstain from consuming alcohol and order to attend AA [ 24 ] Ms. W. presented evidence of Mr.

V.’s history of alcohol dependency, in particular that he had undergone therapy in 2005, 2008 and 2010 and that his licence had been suspended for impaired driving. In her view, Mr. V.’s consumption of alcohol constituted a danger for the children. At trial, she asked that access rights be exercised under supervision of a responsible person and that limits be placed on his driving with the children. [ 25 ] Mr. V. acknowledged his past problems with alcohol but said at trial that it was under control. He admitted the impaired driving offences but noted that the last one dated from 2005.

He had attended Alcoholics’ Anonymous meetings for a time but no longer feels it necessary. He stated that he drinks approximately one beer per month at present. [ 26 ] The judge declined to order supervision which might inhibit the father's interaction with the children. He noted that "[t]he supervision has been nominal and there is no current evidence […] that Mr. V. has put the children in harm's way". [ 27 ] In the absence of supervision or a formal restriction on driving, the judge was of the view that strong measures were called for in order to prevent Mr.

V. problems with alcohol from interfering with responsible interaction with the children. The judge wrote that " [e]ven though [Mr. V.] feels his drinking is under control and the proof on the record bears this out , the Court believes it advisable that a support safety net be in place, if not for his sake, then for the sake of his children" (emphasis added). [ 28 ] In the corrected judgment, he held as follows: [14] DECLARES that the father is not to consume any alcohol until the children have attained the age of majority. [15] ORDERS Mr. V. to join and maintain membership in a

chapter of Alcoholics Anonymous until the children have reached the age of majority and ORDERS his to attend weekly meetings, except for absences due to illness, business or vacation travel. [ 29 ] Mr. V. argues on appeal that the declaration and orders amount to an undue restriction on his freedom that is not justified by the children's best interest.

He submits that the judge erred in law by rendering orders that had not been asked for in the motion to institute proceedings in divorce and that they violate his rights under the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms . [ 30 ] Finally, he states in his written argument that he would agree "to refrain from consuming alcohol in the presence of his two minor children and at least one day prior to his access rights". [ 31 ] At the morning of the appeal, the parties changed their positions on this point. [ 32 ] In the partial agreement, Mr.

V. has undertaken not to consume alcohol in the presence of the children, including during the day prior to the exercise of access rights. He has also undertaken to attend AA meetings. No time limit is specified in either case. Ms. W. has agreed to these undertakings. [ 33 ] Mr. V. still seeks that paragraphs [14] and [15] of the corrected judgment be set aside. Ms. W. agreed to this at the hearing. [ 34 ] The Court agrees that these two paragraphs should be struck on appeal because they reflect error made by the judge in the application of the facts to the legal criterion of the best interest of the children.

With due regard for the judge’s view, this error is an overriding one and, following Van de Perre , cited above, it should be set aside. [ 35 ] Even allowing for the fact that the judge merely declares that Mr. V. should not drink, the impugned rulings reflect an error in the application of the s 16(8) of the Divorce Act in that they overreach the only relevant objective of ensuring the best interest of the children. [ 36 ] As noted above, the judge noted that "proof in the record bears out" Mr. V.’s assertion that his drinking problem is under control. Yet the judge nevertheless decided to declare that Mr.

V. cannot drink and order that he must attend AA meetings as an apparent condition for exercising access rights. [ 37 ] As a consequence, Mr. V. is called upon by the judge to observe complete abstinence from alcohol, without regard to the presence of the children whom he only sees for several days each month, until their majority. Given that his youngest child was eleven years old at the time of the judgment, Mr. V. must observe this regime for seven years. Moreover he is formally ordered to attend weekly meetings of AA for the same seven-year period even though the judge says the record confirms Mr.

V.’s sense that he has no present drinking problem.

[38] In view of the judge’s finding on the evidence, the judge’s rulings constitute a disproportionate constraint on the appellant'sfreedom to conduct his life as he sees fit in the absence of his children. As such, they do not have a proper evidentiary justification basedon the best interests of the child criterion, the sole factor relevant to the fixing of access rights pursuant to subsection 16(8) of theDivorce Act. The evidence did not reveal the Mr.

V.’s alcohol consumption amounted to a real and present danger that would justify sucha substantial limit on the exercise of his access rights. [39] Paragraphs [14] and [15] must be struck accordingly. [40] The Court nevertheless acknowledges the partial agreement on Mr. V. alcohol consumption and attendance at AA meetings butdoes not order the parties to comply therewith. IV Support and special expenses [41] The judge ordered the father to pay retroactive child support for 2009 and 2010 "at least equal to interest on amounts owed by[Ms. W.] to [Mr.

V.] in consideration of the partition of the family patrimony" and declared compensation in respect of interest that Ms.W. would otherwise have owed. He ordered arrears for 2011 in the amount of $8,233.00 to be paid. [42] In so doing, the judge imputed an income to Mr. V. for 2009, 2010 (years when he was unemployed) and 2011 (when the judgeconsidered him to be underemployed). [43] Mr.

V. says the judge was mistaken to impute an unduly high income to him in 2011 and that no income should have beenimputed for 2009 and 2010 when he was unemployed. [44] The judge explained his reasons as follows: [30] In the circumstances of a case where there is no evidence of a real effort to find work, being equivalent to a refusal to work, theCourt has discretion to attribute income for purposes of determining alimentary obligations. See for example in this regard the decision ofthe Court of Appeal in JPM vs GD, (QC CA), J.E. 2001-15. [45] Did the judge err in imputing a substantial income to Mr.

V. when he had little or no actual earnings? [46] Appellate courts owe considerable deference to trial judges' inherently discretionary decisions in support matters. On this point,L’Heureux-Dubé, J. wrote in Hickey v Hickey, (SCC), [1999] 2 SCR 518, para 11: "Our Court has often emphasized therule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehensionof the evidence, or unless the award is clearly wrong". [47] On this standard, the judge made no such error. [48] In choosing to impute income to Mr.

V. when he was not working or working less than he might have been, the judge exercisedhis discretion to impute income to Mr. V. judicially. [49] As the judge correctly noted, the Federal Child Support Guidelines, applicable by reason of Mr. V.'s residence, allow a court toimpute to a spouse such income as it considers appropriate in the circumstances, including where the spouse is intentionallyunderemployed or unemployed.

It is not necessary to show that the debtor of support is in bad faith by avoiding work, but suffices that itis reasonable to impute income based on an availability and potential to earn income at the relevant level.[1] [50] Not only did the appellant fail to produce evidence that would corroborate his claim that he tried to find work during thisperiod, he freely admitted that he might have been more aggressive in his job search and that his personal employment standards werelikely to have been too high.

And contrary to what his lawyer argued on appeal, he asserted at trial that alcohol dependency was not oneof the reasons he was unable to find work. Evidence at trial was presented that, until 2006, his income varied between $80,000 and$100,000, and the judge chose, not unreasonably, to use those years as benchmarks. [51] In sum, the judge committed no reviewable error in setting the amount of income attributed to Mr. V.. [52] Finally, Mr. V. failed to show, in the circumstances, that the support ordered by the judge pursuant to the Federal Guidelinesfrom February 1, 2012 was mistaken.

That argument is also without merit and the amount of ongoing support should not be changed. V Cost of improvements to chalet [53] Ms. W. acquired the chalet during the marriage as a gift from her parents. As such, it is considered private property (art 450(2)CCQ) and is not subject to partition. [54] Mr. V. submits that the judge erred in failing to hold that the costs of renovations to the property, undertaken during themarriage, gave rise to compensation to the mass of acquests pursuant to

article 455, para 1 CCQ. He argues that the renovations arepresumed to be acquests unless Ms. W. reverses the presumption established at

article 459 CCQ. [55] After hearing the evidence on both sides, the judge found that the cost of the renovation was "clearly a gift" to Ms. W. from herparents and thus private property. [56] The judge’s finding is supported by testimony of Ms. W.'s mother at trial and various bank documents. No palpable andoverriding error of fact or error of law has been shown allowing the Court to disturb the judge’s finding here. VI Payment of balance of family patrimony in eight instalments [57] Ms. W. owed $215,737 to Mr. V. as a consequence of the partition of the family patrimony. The judge ordered her to pay Mr.

V. in eight annual instalments. [ 58 ] Mr. V. says the judge erred in so doing as Ms. W. did not prove that the payment of the whole amount at once would cause her prejudice. [ 59 ] The appellant has again failed to show a reviewable error here. [ 60 ] Ms. W. had asked the Superior Court for the amount she owed to Mr. V. be placed in trust as a means of ensuring that he pay the support he owed to the children over time. Recognizing the "poor payment or contribution history of Mr. V." the judge chose instead to have the balance owed to him paid in instalments as an alternative for the trust.

This allowed for the set-off of arrears and future unpaid support on an ongoing basis. As such, the judge exercised, with due regard to all the circumstances, the discretionary power to fix the modalities of payment for claims arising under the family patrimony in

article 420 CCQ. VII Date from which the calculation of interest and the additional indemnity should be calculated [ 61 ] In setting the amount of the claim payable by Ms. W. to Mr. V. upon partition of the family patrimony, the judge declined to order that interest and the additional indemnity allowed by law be calculated from the date of the motion to institute proceedings, December 22, 2008. He held the sums due would not bear interest except after their due date. [ 62 ] Mr. V. says this was wrong in law and manifestly unfair.

Even if the balance due is paid in instalments, he contends that there is no justification for depriving him of the interest and the additional indemnity from the date of the institution of the action. It is especially unfair, he says, because Ms. W. had the use of the residence during this period. [ 63 ] This argument is without merit. The judge explained that Mr. V.’s lack of contribution to the children’s upkeep in 2009 and 2010 is at least equivalent to the amount of interest that otherwise would have been due on partition of the family patrimony.

In other words, the conscious choice by the judge not to require payment of interest and the additional indemnity from December 22, 2008 was central to his retroactive support order predicated on compensation. As we have noted, no error was made on this account and his decision to set-off the interest and the debt for support was a reasonable exercise of judicial discretion in the circumstances. VIII Calculation of the net value of the family patrimony [ 64 ] Mr. V. argues that the judge erred by declaring compensation, in favour of Ms.

W., of $5,250, an amount representing one-half of the net value of a family car included in the family patrimony. He points to evidence suggesting that the car was purchased with funds he had inherited from his late mother and argues that the full value of the car of $10,500 should be awarded to him because it should have been excluded from the family patrimony. [ 65 ] Mr.

V. is right to say that the judge erred in not excluding the value of the car from the family patrimony. [ 66 ] In his reasons of June 15, 2012, the judge initially held that, on the balance of probabilities, there was no case to deduct the amount received from Mr. V.’s late mother in his favour from the family patrimony. [ 67 ] However, in the corrected judgment rendered on June 29, 2012, the judge noted that he had neglected to take into account an admission in which funds received from Mr.

V.’s mother was recognized as a gift. [ 68 ] Given that the same gift was used to purchase the car, the judge should have excluded its value from the family patrimony, under

article 418 CCQ, to Mr. V.’s advantage. [ 69 ] In the result, the judge's error had an overriding effect insofar as the balance of various amounts due from Mr. V. to Ms. W., apart from the amount due relative to the family patrimony, should be lowered by one-half of the value of the car to reflect that it was excluded from the family patrimony. Apart from that amount, however, the appellant has failed to show that the judge erred in holding that the amount of the gift was used for family expenses or expenses relating to Mr. V.'s therapy.

FOR THE FOREGOING REASONS, THE COURT: [ 70 ] ALLOWS the appeal in part; [ 71 ] SETS ASIDE the corrected judgment of June 29, 2012 as follows: – STRIKES paragraph [14] of the corrected judgment; – STRIKES paragraph [15] of the corrected judgment; – STRIKES paragraph [41] of the corrected judgment and REPLACES it with the following: [41] DECLARES compensation regarding the other sums due by the parties hereunder: to wit by Applicant [E.

W.] to Defendant $2,500.00 for the furniture and $10,500.00 for the automobile and by Defendant to Applicant, $8,233.00 arrears of alimentary allowance for the children for 2011, $5,185.00 arrears of alimony for February to June 2012 inclusive, and $2,171.75 regarding school fees and related expenses and ORDERS Defendant to pay the difference of $2,589.75 within 30 days, together with interest at the legal rate and the special indemnity provided by the Civil Code of Québec , both calculated from the thirtieth day (30th) following the date hereof. [ 72 ] CONFIRMS the corrected judgment in all other respects; [ 73 ] ACKNOWLEDGES the partial agreement entered into between the parties on November 14, 2013; [ 74 ] Without costs given the nature of the dispute.

FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A.