2018 QCCA 964, 2018 QCCA 964

Droit de la famille — 181268 2018 QCCA 964 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027201-177 (500-12-320821-147) DATE: JUNE 12, 2018 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. PATRICK HEALY, J.A. JOCELYN F. RANCOURT, J.A. M. S. APPELLANT – Plaintiff v. T. H. RESPONDENT - Defendant JUDGMENT [ 1 ] This is an appeal from a judgment rendered on November 7, 2017 by the Superior Court [1] , District of Montreal (the Honourable Lukasz Granosik) that varied a previous Consent to Judgment on Accessory Measures dated 2 February 2015.

That judgment included the following terms: 3.1 Defendant will pay to Plaintiff spousal support in the amount of $3,500 per month as of February 2015; 3.2 The spousal support shall be indexed in accordance with the law; 3.3 The spousal support shall be payable in accordance with the Act to facilitate the payment of support. [ 2 ] The conclusions of the judgment now on appeal are these: VARIES in part the Divorce judgment of February 2, 2015; ORDERS Defendant to pay to Plaintiff spousal support in the amount of $1,750 per month from starting on May 1 st , 2017; ORDERS that this spousal support will be indexed in accordance with the law starting on January 1, 2018; ORDERS the parties to exchange their Income tax declarations at the latest on June 30 th of each year; ORDERS the parties to inform each other of any change in their financial or employment situation; WITHOUT LEGAL COSTS . [ 3 ] The only substantive modification ordered in the judgment under appeal is the reduction in monthly spousal support from $3,500 to $1,750. [ 4 ] The appellant alleges three errors of law.

These present essentially one ground of appeal, which is that the trial judge erred in reducing the amount of support because the respondent still has the capacity to pay support in the monthly amount of $3,500. The appellant also alleges five errors of fact that are all, except the last, variations on the same theme of capacity to pay.

The last is not a ground of appeal but a conclusion. [ 5 ] The various grounds will be dealt with compendiously. [ 6 ] The central conclusion of the trial judge in this matter was that the respondent’s loss of employment in March 2017, and his subsequent inability to find employment with a comparable income, constitute a material change in circumstances of indeterminate duration that justifies a material modification of his obligation to pay monthly spousal support. [2] He expressed himself as follows: Considering all of the above, the Court finds that, starting May 1 st 2017, spousal support should be calculated based solely on Defendant’s actual revenue .

The evidence shows that this year, he will receive one-half of his usual income and therefore, the spousal support should be cut in half as well, to $1,750 per month. [3]

[ 7 ] The judge noted that in the event of another material change in circumstances the parties could seek further modification of the terms of spousal support. The core of this appeal concerns the words that are italicized. [ 8 ] The evidence before the trial judge included financial information concerning each of the parties. He noted that in budgets submitted to the court the appellant disclosed assets worth $241,000.

He noted also that since the divorce in 2015 the appellant had become a co-owner in a family business and had benefited from life insurance on her late father, although he added that the appellant could not account for the value of these two items, which is (according to him) difficult to understand.

The judge added that “she probably could do better to find employment.” With respect to the respondent, the judge noted that in 2015 (or the middle of 2014) the net worth of his assets was valued at $354,000 and at the hearing of the motion in 2017 it was valued at $725,000. [ 9 ] Thus the central question in this appeal is whether the judge erred in affirming that spousal support should be calculated mostly on the basis of the respondent’s current income.

Did the judge err in reducing the amount of monthly support by half and not taking into account the doubling of the net worth of the respondent’s other assets between 2015 and 2017?

Put differently, could it be argued that the judge erred by not concluding that the sharp increase in the net worth of the respondent’s assets between 2015 and 2017 was a change that militated in favour of maintaining the support payments at $3,500? [ 10 ] It is clear that the judge instructed himself properly in law with reference to the provisions of the Divorce Act [4] and in particular the abundant jurisprudence relating to section 17(4.1) of the Act, which provides: Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [ 11 ] The judge frames the point in issue with clear reference to the jurisprudence: [13] Plaintiff is opposing Defendant’s Motion stating that there is no significant change in the parties’ situation because Defendant’s loss of revenue is only temporary and, moreover, there is no legal basis to cancel spousal support for the future. * * * * * [14] The applicable law in this matter is quite clear.

In general, a material change must have some degree of continuity and not merely represent a temporary set of circumstances. The material change of circumstances means that, if known at the time of the last judgment, it would likely have resulted in different terms thereof. [5] [ 12 ] The appellant has not demonstrated in any particular that the judge made a palpable and overriding error in applying this statement of the law and taking into account the specific considerations enumerated in section 17(7) of the Divorce Act , most notably paragraphs ( a ), (

c) and ( d ). In his application of the principles to the evidence adduced by the parties the judge committed no error of law or fact in concluding that the material change most pertinent to the motion for variation was the respondent’s loss of employment and his inability since that time to find a comparable source of income. Having regard specifically to the prospects for economic self-sufficiency of the former spouses, the judge was correct not to include within his assessment of the order the net worth of their respective assets as relevant factors in a variation of spousal support.

Moreover, by noting that the parties could seek a further variation in the event of another material change, the judge deliberately sought to restrict any variation to compensate for the respondent’s loss of income after March 2017 and thus to his capacity to pay. FOR THESE REASONS THE COURT: [ 13 ] DISMISSES the appeal without legal costs. FRANÇOIS DOYON, J.A. PATRICK HEALY, J.A. JOCELYN F. RANCOURT, J.A. Mtre Véronique Collard McCONOMY COLLARD EUSTACHE INC. For appellant T. H. In person Date of hearing: May 31,2018