2012 QCCA 133, 2012 QCCA 133

Droit de la famille — 1294 2012 QCCA 133 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021896-113 ( 550-12-028541-109 ) MINUTES OF THE HEARING DATE: JANUARY 19, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER C. J.Q. PIERRE J. DALPHOND, J.A. LORNE GIROUX, J.A. APPELLANT(

S) ATTORNEY(

S) S. D. Mtre Ginette Tétreault DROIT-FAMILLE OUTAOUAIS RESPONDENT(

S) ATTORNEY(

S) ST. W. Mtre Vendelin Weber ALBERTI, WEBER AVOCATS On appeal from a judgment rendered on July 7, 2011 by the Honourable Justice Martin Bédard of the Superior Court district of Hull.

NATURE OF THE APPEAL : Alimony. Clerk: Marcelle Desmarais Court Room: Antonio-Lamer HEARING 9 h 44 Submission by Mtre Ginette Tétreault. 10 h 15 Submission by Mtre Vendelin Weber. 10 h 34 Reply by Mtre Ginette Tétreault. 10 h 34 Suspension. 10 h 47 Resumption. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a divorce judgment denying alimony to the appellant. For the reasons that follow, the Court is of the view that the right of the appellant to spousal support has been established.

BACKGROUND [ 2 ] The parties lived together for about 10 years, including nine as husband and wife (they married in Ottawa on October 30 th , 1993). They are the parents of three children born in [...] 1992, [...] 1995 and [...] 1998. When they were living together, the parties assumed

traditional roles, the respondent working outside and the appellant staying at home to care for the family needs. [3] On February 12th, 2002 the parties ceased living together. Shortly after, the appellant filed a motion for separation from bed and board. On October 19th, 2006, Bédard, J rendered a judgment granting custody of the children to the appellant, ordering monthly child support of $ 1,351.67, alimony of $ 1,700 until June 30th, 2007(end of school year) and providing for the division of the familypatrimony.

During the separation proceedings, the appellant received alimony ($ 2,000 per month in 2002 and $ 1,700 afterwards). [4] In the meantime, the appellant suffered two car accidents, the first in September 2003 and the second in 2007. As consequence, sheis unable to work, a condition that is likely to persist. She has no income of her own. The SAAQ[1] has ceased paying for her medicalexpenses and her appeal is pending before the TAQ.[2] [5] In 2010, the appellant filed a petition for divorce.

By an interim judgment rendered on July 23th, 2010, the respondent was orderedto pay child support of $ 1,922 per month plus alimony of $ 1,000. [6] On July 7th, 2011, Bédard J. rendered a divorce judgment with various corollary orders: monthly child support of $1,825 (as perfederal guidelines since the respondent lived in Ottawa), acknowledgment that the partition of the family patrimony was settled in 2006and confirmation of the other orders provided in the separation judgment. [7] However the judgment denied appellant's request for alimony.

Though the respondent admitted her incapacity to work and theestimate of her needs, he argued that it was the time for the State to look after his former spouse and that he was not capable financiallyto pay both child and spousal supports. The trial judge agreed with the first argument, thus the present appeal. JUDMENT OF FIRST INSTANCE [8] According to the trial judge, the appellant's condition did not arise from the marriage or its breakdown; it was the result of caraccidents that have occurred after the separation of the parties.

He added that with due respect for the interim judgment requiring therespondent to pay monthly $ 1,000 to the appellant, there was no justification for such interim spousal support. APPELLANT'S ARGUMENTS [9] Appellant submits that she is entitled to spousal support on a compensatory basis considering the length of time the spousescohabited and the functions performed by each spouse during such cohabitation.

Alternatively, her entitlement is non-compensatory. [10] Respondent counters that the support granted in the separation judgment for a term ending in June 2007 was to allow her tostay at home to assist the children to complete the current school year and thus compensatory in nature. According to him, a supportorder for a ill and disabled spouse is by nature non-compensatory. He adds that he has paid $ 111,500 in compensatory spousal supportfor the period of March 2002 to June 2007, an amount that has adequately fulfilled his support obligations toward the appellant andentitled him to have it terminated.

As for a non-compensatory aspect, he argues that the judge was right to conclude, considering thelength of the cohabitation and the amount already paid, that it was now up to the sate to look after the appellant. Alternatively, he arguesthat he has not the financial capacity to pay spousal support. ANALYSIS [11] The parties were still spouses when both car accidents occurred even if cohabitation had ceased. The bond of marriage werenot broken by the end of cohabitation or even by the judgment of separation (art. 507 C.C.Q.), including the obligation to support eachother (art. 392 C.C.Q.).

The mere fact that no alimony was paid after June 2007 until the filing of the divorce proceedings did notextinguish the appellant's right to support under the Divorce Act. [12] The issue here is simply: at the time of the divorce judgment was the respondent entitled to spousal support considering hersituation? (s. 15.2 Divorce Act). [13] In the present case, the trial court implicitly assumed that, absent a contractual agreement for post-marital assistance,entitlement to support could only be founded on compensatory principles, i.e., reimbursement of the spouse for opportunities foregone orhardships accrued as a result of the marriage.

Since the condition of the appellant resulted from a car accident that occurred after the endof cohabitation, the judge concluded that no compensatory obligation was at stake. [14] This is an error of law. In Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, the Supreme Court said: 15 The lower courts implicitly assumed that, absent a contractual agreement for post-marital assistance, entitlement to support couldonly be founded on compensatory principles, i.e., reimbursement of the spouse for opportunities foregone or hardships accrued as aresult of the marriage.

I conclude, however, that the law recognizes three conceptual grounds for entitlement to spousal support: (1)compensatory; (2) contractual; and (3) non-compensatory. These three bases of support flow from the controlling statutory provisionsand the relevant case law, and are more broadly animated by differing philosophies and theories of marriage and marital breakdown.

(…) 43 In

summary, nothing in the Family Relations Act or the Divorce Act suggests that the only foundations for spousal support arecompensatory. Indeed, I find it difficult to confine the words of the statutes to this model. It is true that in 1986 the Divorce Act wasamended to place greater emphasis on compensation. This represented a shift away “to some degree” from the “means and needs”approach of the 1968 Act: Payne on Divorce, supra, at p. 267.

But while the focus of the Act may have shifted or broadened, it retainsthe older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have thecapacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough.

Morebroadly, the legislation can be seen as a sensitive compromise of the two competing philosophies of marriage, marriage breakdown, andspousal support. (…) 46 Following Moge’s broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support, courts have shown increasing willingness to order support for ill and disabled spouses. Sometimes they havedone this as a “transition” to self-sufficiency: Parish v. Parish (1993), (ON SC), 46 R.F.L. (3d) 117 (Ont. Ct. (Gen.Div.)).

But more often, they have frankly stated that the obligation flows from the marriage relationship itself. Collecting cases,Rogerson explains in “Spousal Support After Moge”, supra, at p. 378 (footnotes omitted): The [more dominant] approach, ... particularly in cases of earning capacity permanently limited by age, illness or disability, and the onegenerally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the sourceof the post-divorce need.

On this approach, which I earlier referred to as the “basic social obligation” approach, causal connectionarguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation.

Themessage coming from the cases adopting this approach appears to be that one takes one’s spouse as one finds him or her, subject to allhis or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basicobligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage.

One is simplynot allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving theother spouse’s financial circumstances. 47 Rogerson concludes that “the non-compensatory principle . . . has come to play . . . a large role in the subsequent case law,providing in many cases a very generous basis for support” (p. 384): see, e.g., Ashworth v. Ashworth (1995), (ON SC),15 R.F.L. (4th) 379 (Ont. Ct. (Gen.

Div.)) (non-compensatory permanent support ordered for disabled spouse who, on the judge’sfindings of fact, benefited from the marriage, as opposed to needing any compensation). “The current approach is typically justified byreference, first, to Moge’s rejection of the applicability of the causal connection test, and second, to the fact that the spouse who is illsuffers disadvantage from the breakdown of the marriage and the loss of financial support from the other spouse” (Rogerson, “SpousalSupport After Moge”, supra, at pp. 378-79 (emphasis in original)). 48 To permit the award of support to a spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economicconsequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act.

It also may wellaccord, in my belief, with society’s sense of what is just. The Report of the Scottish Law Commission, Family Law: Report on Alimentand Financial Provision (1981), at pp. 111-12, a thoughtful analysis of the rationale and policy considerations of spousal support andillness, states: Financial provision on divorce is not . . . simply a matter of abstract principle.

It is essential that any system should be acceptable topublic opinion and it is clear from the comments we have received that many people would find it hard to accept a system which cut off,say, an elderly or disabled spouse with no more than a three-year allowance after divorce, no matter how wealthy the other party mightbe. Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party,absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less. 49 In

summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2)contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a “joint endeavour”, a socio-economicpartnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea thatspouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of casessuggests that in most circumstances compensation now serves as the main reason for support.

However, contract and compensation arenot the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where aspouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligationfounded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractualbasis, the fundamental marital obligation may play a vital role.

Absent negating factors, it is available, in appropriate circumstances, toprovide just support. [Emphasis added.] [15] That being said it is clear that the trial judge denied the presumption of intra-marital support that may fairly be imputed tomarried couples, absent contrary indications. [16] Here the parties were married for close to 17 years and the appellant has devoted most of this period to attend family needs,sacrificing any real possibility to develop a career. Because of her current condition she is unable to return to the work market andachieve economic self-sufficiency within a short period of time.

Yet Respondent contends that it is now the responsibility of the state tolook after her needs. However, she is not eligible to income replacement under the Quebec Automobile Insurance Plan, not having earnedany income, and it is unlikely that she is eligible to welfare, since she receives $1,825 per month from Respondent for the children'ssupport. [17] In any event, in the circumstances at hand, it would be unfair to expect her to go on welfare, supposing she was eligible, whenRespondent earns, on average, $100,000 per year.

[ 18 ] Appellant is therefore entitled to spousal support. However, the information that the Court would need to determine the just and appropriate quantum of that support considering all the relevant statutory factors, together with the amount of support already paid, are not available in the appeal file. It is therefore appropriate to return the case to the Superior Court for it to proceed to such determination absent settlement between the parties.

FOR THESE REASONS, THE COURT : [ 19 ] ALLOWS the appeal, in part. [ 20 ] REVERSES the Superior Court on the conclusion contained at paragraph 59 of the judgment a quo . [ 21 ] DECLARES that Appellant is entitled to alimentary support for herself. [ 22 ] RETURNS the file to the Superior Court for a determination of the quantum of that support. [ 23 ] Without costs in view of the nature of the appeal. NICOLE DUVAL HESLER C.J.Q. PIERRE J. DALPHOND, J.A. LORNE GIROUX, J.A.