2014 QCCA 216, 2014 QCCA 216

Unofficial English Translation Droit de la famille — 14175 2014 QCCA 216 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-023413-131 (450-12-023169-057) DATE: FEBRUARY 6, 2014 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. JACQUES R. FOURNIER, J.A. DOMINIQUE BÉLANGER, J.A. C. D. APPELLANT – Plaintiff v. J. P. RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Saint-François (the Honourable Mr.

Justice Gaétan Dumas), rendered on February 25, 2013, that dismissed her application for support by a motion to [ translation ] "vary corollary relief"; [ 2 ] For the reasons of Kasirer J.A., with which Fournier and Bélanger JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal in part, without costs given the nature of the case; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] ORDERS J. P. to pay to C. D., personally, support in the amount of $514 per month, beginning July 17, 2012; [ 6 ] ORDERS that the support be indexed on January 1 of each year in accordance with

article 590 C.C.Q. , [ 7 ] ORDERS the payment of arrears at a rate of one 36 th per month from the date of this judgment. NICHOLAS KASIRER, J.A. JACQUES R. FOURNIER, J.A. DOMINIQUE BÉLANGER, J.A. Mtre Nadia Plante Proulx, Tétrault, Abran For the appellant Mtre Anne-Marie Faucher Chantale Chrétien, avocats For the respondent Date of hearing: October 10, 2013

REASONS OF KASIRER, J.A. [ 8 ] At what point does the inadequacy of the efforts made by an ex-spouse to become financially self-sufficient effectively eliminate the "compensatory" basis of support sought under

section 15.2 of the Divorce Act ? [1] [ 9 ] This question, which initially appears to be one of fact, nevertheless depends on the principles that govern the discretionary power of the courts to award support following a divorce. [ 10 ] This appeal recalls that the difficulties related to achieving self-sufficiency are often exacerbated by the same circumstances – the time spent without employment by the spouse who was the homemaker, for example, or the effort required to care for the children – that give rise to a support order after the breakdown of a long marriage. **** [ 11 ] By motion to "vary corollary relief" presented in Superior Court, D. claimed support in the amount of $2,916.07 per month for herself.

The trial judge dismissed her claim, agreeing with the arguments of her ex-husband P. : the applicant had not shown a substantial change that would justify a variation order under

section 17 of the Divorce Act and, as the judge decided, her need for support was due not to the marriage or its breakdown, but to the applicant's lack of serious effort to achieve financial self-sufficiency. [ 12 ] D. appeals, asking the Court to order P. to pay support in the reduced amount of $1,300 per month.

She argues essentially that the judge placed too much emphasis on the criterion of achieving self-sufficiency. [ 13 ] For the reasons that follow, and bearing in mind the considerable deference that must be shown on appeal for the decisions of trial judges in support matters, I am respectfully of the opinion that the judgment rendered should be varied and that P. should be ordered to pay his ex-wife support in the amount of $514 per month, with no term. I The context [ 14 ] The parties married on June 16, 1984, and had five children together: X in 1986; Y in 1988; Z in 1991; A in 1992; and B in 1994.

One pregnancy did not proceed to term in 1989. [ 15 ] D. and P. have a high school education. After the birth of X, the spouses decided together that D. would stay at home with the children. She did not work outside the home during the marriage, except for a short period where she worked part time in a seniors' residence. [ 16 ] Until the end of cohabitation, P. held various jobs, almost always full time, earning income generally between $14,000 and $21,000, and one year as much as $33,000, according to the notice of partition from the Régie des rentes.

The family had difficulty making ends meet, and depended in part on family allowances to do so. In the words of P.'s lawyer, the couple was financially [TRANSLATION] "in survival mode" throughout the entire 23-year marriage. [ 17 ] Cohabitation ceased in 2005. [ 18 ] On January 28, 2006, a judgment of separation from bed and board ratified an agreement on corollary relief. Custody of the five children was entrusted to D., and P. was granted access rights.

The family patrimony was then partitioned: D. was declared sole owner of the family residence and responsible for making the mortgage payments; P. was declared owner of the cottage, as both properties had the same net value. D. assumed all responsibility for the loan taken out for the purpose of purchasing the family station wagon, which would belong to her. [ 19 ] P. had a gross annual income of approximately $21,450 at the time, and his wife was receiving government assistance benefits. The parties agreed that P. would pay support in the amount of $550 per month to D. for the five children.

The judgment did not provide support for D., but clause 6 of the agreement reserved her recourses in this regard. [ 20 ] On December 6, 2007, a divorce judgment ratifying a new agreement on corollary relief was rendered. X was then 21 years old and financially self-sufficient; custody of Z (aged 16), A (aged 15) and B (aged 13) was entrusted to D., while custody of Y (aged 19) was entrusted to P. The non-custodial parent was granted access rights in each case. [ 21 ] At that time, P. had a gross annual income of $27,017, and D. was receiving government assistance benefits.

The parties agreed that P. would pay child support of $469.38 per month to his ex-wife for the three children in her custody. Once again, the Superior Court ratified a clause whereby D. [TRANSLATION] "reserves ... her recourse to claim support for herself". [ 22 ] In the years following the divorce judgment, the three children in D’s custody were in school or working. From the moment they entered the job market, they each paid a sum of approximately $240 per month to their mother for room and board.

P. did not exercise his access rights. [ 23 ] P. knew that his children had been of adult age or self-sufficient for some time, but preferred to continue to pay support rather than institute legal proceedings to terminate the support. It was only in June of 2012 that the child support was terminated, upon consent

ratified in a judgment rendered by the special clerk of the Superior Court. [ 24 ] Until the summer of 2012, the children Z (aged 21), A (aged 20) and B (aged 18) were still living with D. and paying her an amount each month. In July of 2012, they left home and stopped giving her this financial support. X (aged 26), who had returned to live with her mother temporarily after a breakup, left at the same time and also stopped paying support. [ 25 ] At the time of the hearing before the Superior Court, the financial situation of P. was less precarious.

In 2004, before the breakdown of the marriage, P. was retraining to become a patient attendant at a health and social services centre. He has worked in this capacity since December 19, 2004, and, as at July 18, 2012, his annual base salary was $36,435. In 2012, his employer certified that he had not been laid off in the last three years and that his benefits included 20 days' paid vacation per year.

At the hearing, P. explained that he was still working as a patient attendant but had been working only part time since the summer of 2012 and was receiving disability benefits because of problems with anxiety and depression. [ 26 ] Since the separation in 2006, in addition to caring for the children, D. has worked sporadically, always part time and always for minimum wage. In 2010, when all three children living with her were teenagers, she went back to school and obtained an assistant cook's diploma. Her gross income for 2010 was $14,933.

In 2011, she worked on call and her gross income totalled $4,689. [ 27 ] On July 16, 2012 – shortly after her children left and after the support for them was terminated – D. filed a motion to vary corollary relief with the Superior Court in which she claimed support for herself. Her motion referred to the right that had been reserved for her and to the fact that she was not financially self-sufficient. [ 28 ] In October of 2012, D. was still receiving social assistance benefits. According to a medical report dated December of 2012, she had health problems that limited her capacity to work for three months.

On December 5, 2012, D. filed an amended statement of income and expenses. Her net income at the time was $589 per month in income security benefits while her expenses came to $2,025. [ 29 ] On December 7, 2012, P. also filed a new statement of income and expenses, which indicated that his net monthly income was $2,402 and his monthly expenses were $2,495. [ 30 ] At the time of the judgment under appeal, in 2013, D. was 50 years old and P. was 52 years old.

II The trial judgment [ 31 ] The trial judge dismissed D.'s motion to vary corollary relief. [ 32 ] After pointing out that D.'s right to support had been reserved at the time of the divorce judgment, the judge stated that the rule of subsection 17 (4.1) of the Act provides that the court must satisfy itself that a substantial change in the means and needs of the parties has occurred before making a variation order.

He concluded that there was an absence of such a change, aside from the fact that child support was no longer due. [ 33 ] While noting the traditional nature of the marriage, the judge believed that D.'s needs were due to her lack of effort to achieve self-sufficiency and not the result of the marriage or its breakdown.

Before dismissing D.'s motion, the judge mentioned P.'s modest means and concluded: [TRANSLATION] [38] Consequently, the Court finds that the plaintiff's current situation is not attributable to the marriage or its breakdown, but is due instead to the plaintiff's lack of serious effort to become self-sufficient. Therefore, no change has occurred in the situation of the parties that would justify a variation of the support. [Citations omitted.] III The arguments of the parties [ 34 ] In her factum on appeal, D. maintains that the judge erred in his assessment of the substantial change justifying a variation order.

She argues that her ex-husband’s capacity to pay is greater than at the time of the divorce judgment, considering the increase in his wages and the fact that he no longer has to pay child support. [ 35 ] Moreover, D. claims that the judge erred as to the cause of her lack of self-sufficiency.

She states that the role she played during the marriage is the cause of her current situation and that the judge placed too much emphasis on achieving financial self-sufficiency in relation to the other objectives of the Divorce Act . [ 36 ] P. responds that the judge was justified in concluding that no substantial change had occurred in the parties’ situation since the divorce judgment. [ 37 ] According to him, the appellant's lack of self-sufficiency is due not to the breakdown of the marriage, but to the choices she made, specifically her feeble efforts to find a job since the couple's separation. [ 38 ] He also argues that because of his own limited income, he cannot afford to pay support to his ex-wife. [ 39 ] Before the hearing, the members of the Court wrote to the parties, noting that the grounds of appeal essentially concern the application of

section 17 of the Divorce Act to the facts of the case. The parties were informed that the Court intended to ask them

questions regarding the application of sections 15.2 and 15.3 of the Act , particularly in light of D. N . v . J. B . [2] and Droit de la famille— 081153. [3] IV Analysis [ 40 ] We know that an appellate court should not vary a trial judge's decision in support matters "unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong". [4] This burden rests on the appellant. [ 41 ] With respect, I find that the judge made three reviewable errors according to this standard described by the Supreme Court in Hickey .

First, he erred in treating D.'s motion as an application for a variation order rather than as a first application for spousal support. Second, the failure to consider the compensatory basis of the application for support, which seeks to offset the economic disadvantages suffered by D. as a result of the marriage and its breakdown, is an error of principle within the meaning of Hickey . Third, the judge committed an error in his assessment of the facts.

He failed to consider the fact that between the end of cohabitation and 2012, D.'s primary duty of caring for the children prevented her from achieving economic self-sufficiency. This error had an overriding impact on his conclusion that D.'s lack of effort to get a job disqualified her from support. [ 42 ] I shall first consider the application of the substantial change criterion (IV.1) and then the basis of the right to support (IV.2), before dealing with the appropriate quantum of support in these circumstances (IV.3). IV.1 The inapplicability of

section 17 of the Divorce Act [ 43 ] With respect for the judge, the Superior Court was wrong to require a [TRANSLATION] "substantial change" in the situation of the parties since the divorce in 2007 as a preliminary condition for the awarding of support for D.

Section 17 of the Divorce Act did not apply here as it was instead a first application for spousal support which, while deferred, was governed by

section 15.2 of the Act . [ 44 ] It should be pointed out that the divorce judgment rendered in 2007 did not rule on an application for spousal support, but ordered only child support. The judgment only [TRANSLATION] "reserves" D.'s right to claim support for herself, and for good reason: at the time, P. could not afford to pay support for her in addition to the support he had agreed to pay for the children. [ 45 ] In the circumstances, the motion filed by D. before the trial judge could not be regarded as an application for a variation order.

The reason is very simple: there was no "spousal support order" in her favour in the divorce judgment of 2007, according to the definition of this term under subsections 2 (1) and 15.2 (1) of the Act. [5] As the Court ruled in D. N. v. J. B. : [TRANSLATION] "without this first order, there can be no variation order". [6] [ 46 ] Our case is comparable to Droit de la famille—081153. [7] In that case, the ex-wife sought support for herself by applying for a variation order when the agreement ratified at the time of the divorce provided for child support only.

On behalf of the Court, Chief Justice Robert explained that, in such a context, [TRANSLATION] "... the judge need not be convinced of a change in the condition, means, needs or other circumstances of either former spouse (s. 17 (4.1) D.A. ). Simply, he must assess the application in light of the objective criteria that normally guide the awarding of support". [8] [ 47 ] It is true that the 2007 judgment is not, strictly speaking, silent on the issue of support for the ex-wife, since her rights in this regard were reserved. However, the reserving of rights by D. does not constitute a support order.

The clause of the agreement ratified in the divorce judgment indicates only that D. did not waive the right to seek support for herself at the time. [9] In Droit de la famille québécois , [10] the authors Dominique Goubau and Sylvie Schirm explain that reserving recourse is not an obstacle to filing a deferred application for support, quite to the contrary in fact: [TRANSLATION] The most common instances of late applications concern cases where the ex-wife's right to claim support has been reserved because of the ex-husband's insufficient income.

An increase in income, in this case, opens the door to an application for support, and the reserve of rights can then make it easier to demonstrate the merits of the application, even if it is very late. [ 48 ] The trial judge's analysis was flawed from the outset as it focused incorrectly on whether D. had established that a substantial change had occurred between the divorce judgment in 2007 and the motion filed in Superior Court in 2012. [ 49 ] In the judge's defence, the title of the motion to institute proceedings indicated that D. was seeking an order to [TRANSLATION] "vary corollary relief".

Everything suggests that the arguments presented before him turned on whether a substantial change, within the meaning of subsection 17 (4.1), had been demonstrated by the applicant. [11] [ 50 ] The judgment nevertheless contains an error of law and, consequently, the Court must re-examine the application for support according to the criteria applicable to a deferred first application. [12] IV.2 The compensatory basis of support and the relevance of economic self-sufficiency of each ex-spouse [ 51 ]

Section 15.2 of the Act sets out the framework for analyzing a first application for a support order:

15.2

(1) Sur demande des époux ou de l’un d’eux, le tribunal compétent peut rendre une ordonnance enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, la prestation, sous forme de capital, de pension ou des deux, qu’il estime raisonnable pour les aliments de l’autre époux. ...

(4) En rendant une ordonnance ou une ordonnance provisoire au

titre du présent article, le tribunal tient compte des ressources, des besoins et, d’une façon générale, de la situation de chaque époux, y compris:

a) la durée de la cohabitation des époux;

b) les fonctions qu’ils ont remplies au cours de celle-ci;

c) toute ordonnance, toute entente ou tout arrangement alimentaire au profit de l’un ou l’autre des époux. ...

(6) L’ordonnance ou l’ordonnance provisoire rendue pour les aliments d’un époux au

titre du présent

article vise:

a) à prendre en compte les avantages ou les inconvénients économiques qui découlent, pour les époux, du mariage ou de son échec;

b) à répartir entre eux les conséquences économiques qui découlent du soin de tout enfant à charge, en sus de toute obligation alimentaire relative à tout enfant à charge;

c) à remédier à toute difficulté économique que l'échec du mariage leur cause;

d) à favoriser, dans la mesure du possible, l’indépendance économique de chacun d’eux dans un délai raisonnable. 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. …

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. ...

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 52 ] We shall now look at the basis of the support sought and the judge's reasons more closely. [ 53 ] In her motion, D. states that she is not financially self-sufficient and attributes this to the role she played during the marriage. [ 54 ] The evidence adduced by D. concerning the traditional nature of the marriage is not seriously disputed. Throughout their 23- year union, D. worked full-time taking care of the home and the five children, by mutual agreement of the spouses.

Because of the time she devoted to this unpaid economic activity, D. was out of the workforce, except for a few brief periods when, because of the family's modest income, she had to take a paid part-time job in addition to her activities at home. [ 55 ] While both parties have modest means, P.'s career path is very different from that of his ex-wife. During the 23 years of marriage and the first years of separation, D. primarily took care of the home and children; P. worked outside the home, also full-time.

Although he often held unstable, low-paying jobs, over the years, he managed to acquire experience on the job market that would serve him throughout his career. In addition, he had access to development opportunities that enabled him to further his career, including the training, which was acquired during the marriage, that made it possible for him to get a job as a patient attendant. He has benefits – including 20 days of paid vacation and relative job security – of which D. is deprived, since she was out of the workforce.

Unlike his ex- wife, D. has a substantial résumé thanks to his work experience; he has had opportunities to show loyalty to various employers that can lead to references, contacts and advancement opportunities, along with the practical experience he has acquired during 23 years of

regular employment. At the end of the marriage, P. was far from a wealthy man, but his earning power had increased. [56] The judge noted the consistent arrangement between the spouses throughout the marriage, D.'s primary care for the fivechildren during the union, and the couple's choice as to the roles they would play in the joint economic enterprise of the household.Although he pointed out that they had a traditional marriage (paragraph 11 of his reasons) and cited a number of Supreme Courtjudgments, including Moge v. Moge (paragraph 33), he did not analyze the compensatory basis of the support sought by D.

Rather, hisreasons focus essentially on D.'s efforts to achieve financial self-sufficiency, efforts that he deemed inadequate (paragraphs 12 to 16, and26). [57] In the end, he concluded that D.'s support needs were due not to the marriage or its breakdown, but to her lack of effort since theseparation to achieve financial self-sufficiency (paragraph 38 of his reasons, quoted above). [58] On appeal, D. maintains that the judge placed too much emphasis on the objective of promoting economic self-sufficiency andthat he incorrectly weighed the other objectives mentioned in

section 15.2 of the Act. [59] D. is right on this point. [60] First, the judge failed to identify the compensatory basis of the order sought by the appellant. [61] Under paragraphs 15.2(6)(a), (

b) and (c), the judge should have considered the disadvantages to D. arising from the marriageand its breakdown, as well as the fact that she had the care of the children in determining support. Combined with the length of time thespouses cohabited (paragraph 15.2 (4)(a)) and the functions that the ex-wife performed during the 23 years of marriage (paragraph 15.2(4)(b)), these considerations should have led the judge to recognize categorically the "compensatory" basis – related to D.'s loss ofearning power – of the support sought.

He did not do so. [62] Respectfully, I find that this omission reflects an error of principle in the assessment and application of the objectives set out byParliament in

section 15.2 of the Act. [63] We know that throughout the marriage, D. remained out of the workforce by mutual agreement with her husband to take care ofthe children and the home. As L’Heureux-Dubé J. of the Supreme Court explained in Moge v. Moge,[13] this situation can give rise tosupport to "compensate such economic disadvantage": The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children.

Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support maybe a way to compensate such economic disadvantage. [64] Relying, inter alia, on the Supreme Court's

interpretation of

section 15.2 in Moge, my colleague Rochon J.A. points out in Droitde la famille—133121,[14] usefully for our purposes, that so-called compensatory support seeks to indemnify a spouse for the economicdisadvantages caused by the marriage or its breakdown and the care of the children. The assessment of these advantages anddisadvantages, he explains, depends on factors including the length of time the spouses cohabited and the functions that the spousesperformed during that time.

On the basis of this reading of the Act and the case law, Rochon J.A. wrote: [TRANSLATION] [50] In short, the spouse who leaves the workforce, organizes the family's domestic life and is the primary caregiver for the childrenperforms a function in the marriage that inevitably results in economic disadvantages and must be compensated when the marriagebreaks down. The advantage of this conception of marriage and the resulting obligations is that it recognizes the undeniable value ofwork within the home and gives it the same importance as the career that subsidizes the domestic enterprise. [Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813 at 864, in particular] [65] To be sure, the objective accepted by the judge – to promote the economic self-sufficiency of the spouses within a reasonableperiod of time – must be taken into account.

However, the courts have consistently held that no objective should be preferred to theothers in determining support. [66] In emphasizing that achieving financial self-sufficiency is not the only relevant objective, my colleague Chamberland J.A. wrotein Droit de la famille—1931:[15] [TRANSLATION] This objective must be looked at in light of the other objectives set out in the Divorce Act, particularly taking the advantages ordisadvantages arising from the marriage or its breakdown into consideration, and relieving any economic hardship of the spouses arisingfrom the breakdown of the marriage ... .

These other objectives are especially important in the case of women whose marriage,regardless if it is because they took care of the children or for another reason, has put them in a state of irremediable economicdependence. [67] Because she was without gainful employment for 23 years – her prime earning years – D. did not build experience on which shecould rely at the time of the separation and afterwards. As a rule, employers do not recognize time spent raising children and running ahousehold as being equivalent to a job in the workforce.

While it may be regrettable, writing "steady employment as a homemaker for 23consecutive years" on a résumé is not very helpful when re-entering the workforce. [68] Apart from the professional experience she failed to acquire during those 23 years, D. gave up the possibility of acquiringseniority with an employer. She did not have the opportunities for professional advancement and wage increases that a steady presence inthe workforce would have offered her; she was not entitled to the benefits which normally come with a job, including paid vacations or

contributions to a pension plan, and which generally increase over the years. [ 69 ] She had to start over from scratch, in her late forties, around 2010, when reduced child care responsibilities enabled her to reinvest in her professional future. [ 70 ] The duration of the joint economic enterprise and the domestic and child care duties that D. performed during the marriage were such that the compensatory basis of her support application was [TRANSLATION] "deeply rooted" [16] in the facts and did not disappear shortly after the separation.

Compared to what it was at the beginning of the union, D. was left with diminished future earning power on the job market when the 23-year marriage ended. So-called compensatory support serves to indemnify her in part for this loss. [17] P. did not incur such a loss; on the contrary, his earning power was increased, thanks in part to the division of labour between the spouses during the union.

Moge recognizes that the Act provides a right to ask for support to compensate this loss. [18] [ 71 ] The cause-and-effect relationship between the marriage and its breakdown and D's loss of earning power is, moreover, clear in the context of their traditional, 23-year marriage. The judge did not make this finding because he did not identify the loss of earning power that forms the basis of the application. I would add that losing the capacity to earn a living is no less real for ex-spouses of modest means.

It is inaccurate to state, as P.'s lawyer did, that with a high school education, D. could not hope to find anything more than minimum-wage employment, before or after the marriage, so she did not incur any loss of earning power during the 23 years at home. We must not confuse "standard of living" with "loss of earning power". Even persons of very modest means can suffer a loss of earning power. [19] The parties' standard of living is definitely relevant to the quantum of a possible order, but it is the loss of earning power that entitles a party to ask for support pursuant to

section 15.2 of the Act and Moge . [ 72 ] In my opinion, in the factual context of a long, traditional marriage, and given the fact that D. had the care of the children during the union, the failure to consider the compensatory basis of the support sought is an error that requires the Court's intervention. [ 73 ] In addition to diminishing her earning power, the disadvantages related to the role D. played in the marriage slowed her progress towards financial self-sufficiency.

Here again, the judge did not take this into consideration, and this error vitiates his conclusion that D.'s financial difficulties are due not to the marriage but to her lack of serious effort to become self-sufficient. [ 74 ] The courts are called upon to recognize that the economic disadvantages of a traditional marriage can also make it more challenging for the creditor ex-spouse to rejoin the workforce. [20] The longer D. remained outside the workforce because of her domestic responsibilities, the more difficult it became for her to achieve self-sufficiency.

The lack of experience, the absence of references, even her relatively advanced age worked against her in her job search. Her professional experience dated back 25 years or more. In her 23 years at home and in the first years of separation, she did not have [ translation ] "advanced training", opportunities for [ translation ] "networking", or contact with the latest work tools.

These disadvantages associated with the marriage and its breakdown work doubly against her in terms of how quickly she is able to attain self-sufficiency. [ 75 ] In fact, D.'s absence from the workforce for 23 years makes it much more challenging to achieve self-sufficiency. Finding full- time employment that allows one to be self-sufficient at fifty-plus years of age, after a prolonged absence from the workforce, is no easy task.

Without a résumé, without programs for continuing education, without references from former employers, her employment prospects are very limited. [ 76 ] In my humble opinion, the judge erred when he failed to consider the economic disadvantage associated with a long, traditional marriage in determining whether D.'s efforts to achieve self-sufficiency had been enough.

His decision to deny her any support reflects an exaggerated sense of D.'s chances of achieving financial self-sufficiency, exaggerated because of her loss of earning power related to the marriage and its breakdown. [ 77 ] I hasten to add, however, that D. is not excused from looking for employment, even if, practically speaking, finding a job that would enable her to become self-sufficient will not be an easy task. [ 78 ] In this regard, paragraph 15.2 (6)(

d) of the Act is clear: the support order must promote the economic self-sufficiency of each spouse, even after a long, traditional marriage, where circumstances are appropriate. [21] [ 79 ] One must be cautious, however, as to the consequences of a lack of serious effort to achieve self-sufficiency. One must always bear in mind the direction given by the Supreme Court in this regard: "(f)ailure to achieve self-sufficiency is not a breach of ‘a duty’ and is simply one factor amongst others to be taken into account" [22] when determining support under

section 15.2 of the Act . A support order must, of course, promote the economic self-sufficiency of the parties, but paragraph 15.2 (6)(

d) specifies that this should be done "in so far as practicable" and within a reasonable period of time. Caution must be increased when the lack of success may be attributable to circumstances related to a long, traditional marriage and its breakdown. [ 80 ] Certainly, both ex-spouses must take measures to further the economic self-sufficiency that paragraph 15.2(6)(

d) of the Act seeks to promote. Failure to achieve this self-sufficiency, however, is not wrongdoing in the strict sense of the word. Inadequacy of the measures taken to become self-sufficient is above all a fact to which the Divorce Act attaches consequences in the assessment of the merits of an application for a support order. [ 81 ] In addition, there is another reason for the Court to intervene to review the refusal to order support for D.

In his finding that D. had not made a serious effort to find employment, the judge did not properly consider the facts subsequent to the separation of the parties concerning the care of the children. This error of fact had an overriding impact on his assessment of D.'s progress towards self- sufficiency. [ 82 ] When the judgment on separation from bed and board was rendered in 2006, care of the five children, then aged 12 to 20, was entrusted to D.; in 2007, the divorce judgment gave her custody of the youngest children Z, A and B, aged 13 to 16, while Y was entrusted to her father.

Three of the children remained with her until 2012. It is true that they contributed substantially to the household expenses for part of that period, but this did not relieve D. of her responsibilities, in terms of time and worries, related to the parental care that she had assumed disproportionally. All the more so since the evidence shows that the father did not exercise his access rights in

respect of those children who were in D.’s custody. [ 83 ] The children’s presence after the end of cohabitation would also be an obstacle returning to the workforce. It is clear that D. assumed the primary care of the children not only during the marriage, but well after it ended.

This had an impact on her ability to return to work full-time in the workforce because she was not really free from taking care of the children until 2010, about four years after the end of cohabitation. [ 84 ] The judge incorrectly assessed D.'s ability to take full measures to further self-sufficiency by failing to consider the fact that her responsibilities as custodial parent between 2006 and the age of majority of the children prevented her, in part, from rejoining the workforce.

He seemed to blame D. for her professional inactivity during the six years following the separation, without considering the time she actually had at her disposal. He did not take into account that D.'s period of transition towards financial self-sufficiency truly began around 2010, when she went back to school and obtained an assistant cook's diploma, and not at the time of the separation from bed and board.

This is a new error ​– one that is palpable and that had an overriding impact on the judge's finding – which confirms the imperative for the Court to intervene in this case. [ 85 ] In short, the 23 years of traditional marriage and the subsequent period where D. was the children’s main caregiver establish her entitlement to "compensatory" support within the meaning of Moge . The long period of absence from the workforce, combined with the fact that until very recently she had the care of the children, effectively shows the link between D.'s need and the marriage and its breakdown.

The weak – inadequate according to the judge – effort made to find employment must also be put into perspective because of the continued presence of the children with her until 2012. Without going as far as the judge, even allowing that D. made a rather modest effort to rejoin the workforce, she deserves support. The deferral of her application was justified: although the divorce judgment, including the reserve of her right to support, was rendered in 2007, the financial burden that P. assumed by paying child support was an obstacle to an application by D. for herself.

IV.3 The quantum of the support [ 86 ] To the extent that D. has demonstrated the merit of her application for a spousal support order, what is the appropriate quantum of the support? [ 87 ] It should be recalled that the financial means of both parties are very modest, as is the lifestyle they led during the marriage and afterwards. P.'s situation has since improved, but his means are still limited.

As indicated in subsections 15.2 (1) and 15.2 (4), the Court must take into consideration the means and needs of the parties in making a support order that it thinks reasonable using the factors and objectives that apply in the circumstances. [ 88 ] Note that D. has revised the amount of her claim in appeal and is seeking $1,300 per month. A substantial part of the amount claimed concerns expenses related to the former family residence, which has belonged to her since the divorce judgment.

As the judge observed, not only do the children no longer live at home, but the evidence shows that D. often stays at the residence of her new spouse. [ 89 ] It goes without saying that as the support creditor, D. is under no obligation to encroach on her capital to support herself. However, her life circumstances are such that she should perhaps reassess the portion of her monthly expenses that is required for housing. [ 90 ] In paragraph 19, the judge noted that D. spent $1,300 per month to maintain the family residence.

Before our Court, however, counsel for D. acknowledged that it costs less than that to live in the residence. She explained that the amount of $1,300 was established on the basis of a statement of income and expenses prepared in July of 2012, which statement contained an error concerning the amount of municipal taxes.

She also explained that the hypothecary loan had been renegotiated between July and December 2012, which reduced the monthly payments. [ 91 ] Indeed, according to the statement of income and expenses produced on December 5, 2012, the monthly cost of the mortgage payments is $508, plus $241 per month for municipal taxes, insurance and electricity. Note that an amount of $300 per month is also included for the repair and maintenance of the residence, which amount should not be completely borne by the support debtor.

The amount sought in this respect must therefore be reduced. [ 92 ] Although D. is not financially self-sufficient, despite some effort, and although her needs are due in part to the marriage or its breakdown, she is still able to work, and the support order should promote her economic self-sufficiency. At the time of the hearing before the Superior Court, she was unable to work for health reasons, but nothing indicated that this would last. In fact, at this hearing, her counsel informed the Court that her client was willing and able to work.

She had the capacity to earn some income, which she did in 2010 and in 2011. Her financial statement, which shows social assistance benefits as her sole source of income, must be reviewed. This too should reduce the amount of the support. [ 93 ] As for P., his situation is better, but his means also are limited, as the judge pointed out in paragraph 29. The evidence shows, moreover, that he is no longer in good health. At the time of the hearing before the Superior Court, he was working part time and had been receiving disability benefits since the summer of 2012, which reduced his wages.

In addition, the family income, before the separation, had always been modest, although things look more promising now than they did then. [ 94 ] The judge himself noted that the principal change in P.'s situation since 2012 is that he no longer pays child support. [ 95 ] Therefore, taking into account P.'s capacity to pay, D’s actual needs and means, and the fact that she is able to work, I believe it would be reasonable to order the respondent to pay support of $514 per month, i.e., the amount paid for the three children until June of 2012, while being aware of the more advantageous tax treatment of support paid for the benefit of his ex-wife. [23] [ 96 ] In the circumstances, I do not believe it is appropriate to set a term, since we cannot presume, even though she must make an

effort, how long it will take for D. to achieve self-sufficiency and for the economic disadvantages of the marriage and its breakdown to disappear. It should be borne in mind that while D. is under no obligation to achieve self-sufficiency, the support order must nevertheless promote, in so far as practicable, her self-sufficiency within a reasonable period of time. And although any inadequacy of D.'s future efforts would not constitute a "breach of obligation", as the Supreme Court says, such inadequacy is relevant to determining support, or possibly varying it, under the Divorce Act .

That the variation could go as far as termination of the support cannot be ruled out, if the circumstances justify it. [ 97 ] I would therefore allow the appeal in part, set aside the trial judgment, award support to the appellant of $514 per month, indexed, beginning July 17, 2012, the date of service of the motion. Considering the limited means of the respondent, I would order the payment of arrears at a rate of one 36 th per month from the date of this judgment. [ 98 ] The judge did not award costs at trial; I would do likewise in appeal, considering the family nature of the case. NICHOLAS KASIRER, J.A.