2013 QCCA 1044, 2013 QCCA 1044

Droit de la famille — 131531 2013 QCCA 1044 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022810-121 (500-12-299507-099) DATE: June 10, 2013 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. MARIE ST-PIERRE, J.A. DOMINIQUE BÉLANGER, J.A. P. A. APPELLANT – INCIDENTAL RESPONDENT – Defendant v. E. S.

RESPONDENT – INCIDENTAL APPELLANT – Plaintiff JUDGMENT [ 1 ] On appeal from a judgment of the Superior Court, district of Montreal, rendered on May 24, 2012 by Honourable Madam Justice Eva Petras [1] , the appellant submits that the trial judge erred in fixing spousal support of: 1.1 $6,000 per month in addition to the payment of taxes and insurance for the family residence as of June 1, 2012; and, 1.2 $7,000 per month as of August 1, 2013, the date on which the respondent was to vacate the family residence. [ 2 ] He also claims that she erred in awarding the respondent a lump sum of $600,000 to be paid regardless of the date of sale of the family residence. [ 3 ] In an incidental appeal, in the event that this Court were to reduce payment of the lump sum the trial judge ordered, the respondent requested a right of habitation in the family residence until June 30, 2018 in order to provide an appropriate home for the two children and particularly to the youngest one until he finishes CEGEP. [ 4 ] At the hearing, the parties confirmed that they had reached a partial agreement to postpone the payment of the lump sum award.

The only remaining issue between them on this topic is whether or not it would bear interest as of August 1, 2013 until the actual date of payment.

This partial agreement contemplates that, as a counter-part to the postponement of the payment of the lump sum award simultaneously with the sale of the family residence, the respondent will continue to occupy the family residence with the two children until it is sold, it being understood that they will be given a prior notice to vacate the premises of at least of 60 days and that, until then, the spousal support will be paid accordingly (as per the quantum applicable to the period of June 1, 2012 to August 1, 2013). [ 5 ] Therefore, the actual dispute before the Court was whether or not it can and should intervene to reduce the quantum of spousal support or the quantum of the lump sum, and whether there will be interest payable on the amount of the lump sum as of August 1, 2013. [ 6 ] For the following reasons, the Court will not intervene and the lump sum award will not bear interest as of August 1, 2013. [ 7 ] In matters of compensatory allowances and lump sums, as stated by Gonthier, J., for the Supreme Court of Canada, in Lacroix [2] and in P. (S.) v.

R. (M.) , trial judges' decisions are to be given considerable deference taking into account the difficult judicial exercise they are performing : In performing this difficult judicial exercise, there are many factors which the trial judge may legitimately consider as, in relation to both compensatory allowances and lump sums, the legislator has recognized the need for broad discretion by adopting enabling provisions which have an essentially open texture. In such a context, the function of an appellate court is to correct errors of law made at trial in exercising the discretion conferred by law.

It goes without saying that assessing the facts is the prerogative of the trial judge and that, unless it can identify such an egregious error in this regard that it indicates an error of legal principle, the Court of Appeal is not justified in intervening. [3] [ 8 ] As stated by L'Heureux-Dubé, J. for the Supreme Court of Canada in Hickey v . Hickey , the same kind of deference should be given to any spousal support order: 10 When family law legislation gives judges the power to decide on support obligations based on certain objectives, values,

factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. [4] [ 9 ] Therefore, absent an error of principle, a significant misapprehension of the evidence or a demonstration by the appellant that the award is clearly wrong, there should be no intervention by a court of appeal. [5] [ 10 ] Notwithstanding the quality of the appellant's lawyer representations, the Court concludes that, in the circumstances of the present case, the appellant has failed to establish such an error. [ 11 ] In support of his claim that the spousal support order be modified, the appellant submitted the following arguments: (1) the order is unfair, and therefore clearly wrong, since the quantum fixed by the trial judge leaves him with less than 50% of the net revenues available; (2) the amount ordered far exceeds what he should be required to pay based on the spousal support advisory guidelines; (3) since evidence establishes that the respondent was able to manage her financial needs following the interim order awarding her spousal support of $2,000 gross a month plus the payment by the appellant of direct housing expenses, the figure of $7,000 per month is grossly exaggerated; (4) the respondent has an obligation to recycle herself and use her best efforts to seek her own autonomy in virtue of the Divorce Act , which she failed to do and which the judge did not take into consideration. [ 12 ] The spousal support award is neither unfair nor clearly wrong. [ 13 ] The Court agrees with the respondents' proposition, at paragraph 20 of her factum, that "the trial judge after examining all of the factors in the light of the stipulated objectives of support set out in subsection 15.2(4) of the Divorce Act , exercised her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown in accordance with the case law." [ 14 ] The trial judge took note of the 17-year duration of the marriage, the fact that the respondent had left her career in Toronto to assume the traditional role of a homemaker during these years for the benefit of the children and the appellant who, in return, was able to advance his career.

She considered the significant economic disadvantages the respondent suffered by reason of the marriage and its breakdown. She assessed the respondents' expenses as reasonable, significantly reduced from the matrimonial standard of living. She attributed an annual gross income of $25,000 to the respondent taking into account her small business venture, its results and potential.

As to the appellants' capacity to pay, even though she acknowledged his deficit debt financing, she concluded at paragraph [121] of her judgment that he could afford such an amount of spousal support. [ 15 ] While, at first glance, the appellant's proposition that he would have been left with less than 50% of the net revenues is plausible, after further analysis, taking into account all the tax deductions available to him, it is far from being obvious.

Moreover, it takes no account of important nuances that were rightly considered by the trial judge. [ 16 ] For example, given the specific but temporary financial burden of private school fees, the trial judge decided that it was not for the respondent to bear the financial consequences of the parties' joint decision during (and after) the marriage to send their youngest son to private school (to [B College] where the annual fees are approximately $20,000), and that her right to receive an adequate level of spousal support should not be negatively impacted for that reason. [ 17 ] At paragraphs [110] and [111] she wrote: [110] Mr.

A.'s situation is secure although he has some financial concerns since he is deficit debt financing in the amount of approximately $23,000 a year in order to pay for all the family expenses and his own expenses, including the child support, spousal support and the payments of his three residences. However, this situation will soon be at an end, once the family residence is sold. [111] Once Y has finished high school at [B College], Mr. A. will be even better off and will be able to invest even more money for his retirement.

His capacity to save and to invest for the future is clear. [ 18 ] Moreover, to assess the capacity to pay, the trial judge was also allowed to take into account the income and the appellant's assets, especially since the evidence established that he would shortly receive the proceeds from the sale of the family residence that he plans to invest to generate further income. [ 19 ] The appellant's argument based on the Spousal Support Advisory Guidelines is not conclusive. As Bich, J.A. wrote for the Court in Droit de la famille – 112606 , [6] these guidelines do not bind judges.

Although they are a useful tool, their purpose is not to remove the wide discretion given to trial judges, who are free not to rely on them where their own proper analysis requires a different conclusion.

Anyhow, in the present case, considering all of the applicable parameters set out in the Guidelines , the spousal support awarded by the trial judge is not out of range. [ 20 ] Since the respondent was able to manage her financial needs following the interim order of Senécal, J. (spousal support of $2,000 gross per month plus the payment of direct housing expenses), the appellant argues that the amount of spousal support should be reduced. The Court disagrees with that equation. The purpose of any interim order is to meet the urgent and immediate needs.

On the other hand, spousal support that is awarded on the merits has an alimentary and compensatory purpose, and must therefore respond to other factors. In any event, this argument does not really advance the appellant's position since the spousal support and housing expenses awarded in this interim order were roughly equivalent to $7,000 per month. [ 21 ] The appellant argues that the respondent has failed to seek her own autonomy and to reduce her dependence on him. At this juncture, the Court does not subscribe to that submission.

This is not to say, however, that the respondent should not continue to persevere in her efforts to become autonomous and, accordingly, to reduce her dependence upon the appellant. When the marriage broke down she was only 46 years old. The children are teenagers (one of whom is almost 20 years old) and, sooner than later, they will be on their own. She obviously has many skills, as her ability to start and to develop a small but prosperous business of her own demonstrates,

and should strive to use them in order to gain at least a measure of autonomy, which, among other things, would protect her against anymisfortune in the appellant's financial situation or the legitimate reduction of his income. [22] The appellant does not contest the respondent's right to a lump sum award. As a matter of fact, he offered an amount of$300,000, but contends that the award of $600,000 is exaggerated. [23] Given the high degree of deference previously mentioned, it is not enough to argue that the quantum is exaggerated.

Asindicated earlier, in order to succeed, the appellant would need to establish an error of principle, a significant misapprehension of theevidence, or that the award is clearly wrong. [24] In awarding a lump sum of $600,000 to allow the respondent to purchase a home in an area consistent with her lifestyle prior todivorce and to have sufficient security for her future, to buy a new vehicle to replace the one she has (a 2003 model) and to repay a debtof $20,766.77 she incurred during the period that preceded the interim spousal support order of Senécal, J., as the content ofparagraphs [122] to [136] of her judgment show, the trial judge exercised her discretion in accordance with the applicable case law. [25] Here again, the appellant has failed to satisfy the necessary burden that would allow this Court to intervene.

Considerabledeference should be given to the trial judge's decision,[7] which, as a result, does not permit the Court to vary either the support order sheissued or the lump sum award she granted. [26] Since there is already a counter-part to the respondent's consent to postpone the payment of the lump sum award to the actualdate of sale of the family residence, where she will reside until its sale while the appellant will continue to pay spousal support of $6,000per month and to pay the taxes and insurance, the Court concludes that the said lump sum should not bear interest as of August 1, 2013.

FOR THESE REASONS, THE COURT: [27] ACKNOWLEDGES the agreement of the parties, as described in paragraph [4] hereinabove; [28] DISMISSES the appeal and incidental appeal, the whole without costs. MARIE-FRANCE BICH, J.A. MARIE ST-PIERRE, J.A. DOMINIQUE BÉLANGER, J.A. Mtre Donald Devine Mtre Tamar AjamianDEVINE SCHACHTER POLAKFor the appellant – incidental respondent Mtre Lynne Kassie Mtre Nicholas MartinROBINSON SHEPPARD SHAPIROFor the respondent – incidental appellant Date of hearing: May 29, 2013 [4] Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518.