2011 QCCA 1117, 2011 QCCA 1117

Unofficial English Translation Droit de la famille — 111669 2011 QCCA 1117 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-007110-106 (615-12-002651-024) DATE: June 13, 2011 CORAM: THE HONOURABLE JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. M. R. APPELLANT – Applicant v. B. RO. RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Abitibi (the Honourable Mr.

Justice Robert Dufresne), rendered on June 18, 2010, and varied on June 28, 2010, that allowed in part the respondent’s application to vary the corollary relief, filed on June 6, 2007. [ 2 ] The parties divorced in 2002.

The appellant had custody of the three children, aged 15, 12 and 9, when the trial judgment was rendered. [ 3 ] As for the respondent, he lives in Germany, where he remarried in 2006, and he is the father of a son born on ..., 2009. [ 4 ] The appellant raises several grounds of appeal. [ 5 ] She argues first that the trial judge erred by not applying the Federal Child Support Guidelines [1] ( Federal Guidelines ) for 2007 and 2008. [ 6 ] The trial judge deemed the parties to have chosen, in the interim agreement made on July 9, 2007, to apply Quebec’s Regulation respecting the determination of child support payments [2] ( Provincial Regulation ), rather than the Federal Guidelines .

He wrote as follows: [ translation ] [65] First, the Court concludes that the interim agreement did include a clear choice to subject the calculation of support to the provincial rules rather than the federal rules. [66] An analysis of the agreement shows this clearly at paragraph 17, which reads as follows: 17.

The adjustments provided in the preceding paragraph will be made in such a way that the Aliform form in effect for 2007 covers the adjustment period until December 31, 2007, and the support form in effect for 2008 will cover any adjustments from January 1, 2008; [67] The mother’s statement to the effect that her attorney at the time had not informed her of the existence of the federal guidelines cannot be accepted. Admission is recognition of a fact prejudicial to its author, which is not the case with this statement. The mother argued lesion. [68] Lesion is not admissible in this instance, however.

Apart from the fact that the Civil Code of Québec does not provide for it, it is difficult to conceive that application of the provincial rules to determine support is unconscionable. Moreover, the Court of Appeal wrote in L. (T.) v. P. (L.A.) : [ translation ]

III. Child support 63 The appellant submitted with reason that, even if it were a matter of a pending case, the parties could agree on a determination ofchild support under the Provincial Regulation. This involves a reasonable arrangement within the meaning of subsections (7) and (8) ofsection 15 of the Act, as this Court recognized in Droit de la famille – 3026, [1998] RDF 393 and Droit de la famille – 2873, (QC CA), JE 98-207.

For lack of an agreement, however, the only applicable rules were the Federal Guidelines, asspecified by the Court in Droit de la famille – 3034, (QC CA), [1998] RJQ 1706. [69] Moreover, the Court concluded that in this case retroactive application of the federal rules to 2007 would have unreasonableconsequences for the father.

He would have a considerable support debt for his financial means, even though he concluded theagreement of July 2007 in good faith. [70] Indeed, even the father earned income that was far greater than what he stated in the agreement of July 2007, the Court cannotconclude that he acted in bad faith. The agreement of July 2007 stated that the father would have net income of €60,000 “for the nexthockey season”. One must not confuse the hockey season, which extends approximately from August to March, with a person’s annualincome from January 1 December 31 of each year.

Good faith is always presumed and must be presumed in this case. [7] It is also essential to note that, under the interim agreement, the parties postponed the hearing of the respondent’s applicationfor one year. Ultimately it would not be heard until June 10, 2010, apparently because of difficulties caused by the need to have therespondent’s documents translated. [8] The appellant argued that she did not choose to apply the Provincial Regulation, because she did not know that the FederalGuidelines applied in this case.

Indeed, the respondent stated in his application that he was domiciled and residing in city A, in Abitibi.

Itwas only in the amended application to vary the corollary relief, filed by the respondent on July 2, 2009, that he stated that he wasdomiciled and residing in Germany. [9] According to the appellant, under the Federal Guidelines, the respondent would have had to pay child support of $2,967 amonth for 2007, rather than $1,841.61, and $2,773 a month for 2008, rather than $1,786.75 from January 1, 2008, to August 31, 2008,and $2,060.89 from September 1 to December 31, 2008. [10] The respondent, for his part, explained that the appellant knew that he lived in Germany 11 months of the year and that he hadremarried there in 2006. [11] He also argued that the judge was justified in deciding that there was no ground to make a retroactive order, which would createan excessive financial burden for him. [12] The Court is of the opinion, as the judge stated, that it clearly appears from paragraph 17 of the interim agreement that theProvincial Regulation was to apply to the support adjustments for 2007 and 2008: [translation] 17.

The adjustments provided in the preceding paragraph will be made so that the Aliform form in effect for 2007 covers the adjustmentperiod until December 31, 2007, while the support form in effect for 2008 will cover any adjustments as of January 1, 2008; [13] Moreover, it appears from the evidence that the parties lived in Europe from 1998 until 2001, when the respondent had a careeras a professional hockey player. The appellant and the children returned to Canada after the hockey season. [14] After the separation in 2001, the respondent stayed in Germany, where he began a new life.

He married in 2006, as previouslystated. He did, however, keep a cottage in Abitibi, where he spent one month of the year. [15] In light of the evidence, it is therefore difficult to think that the appellant did not know that the respondent was domiciled inGermany. [16]

Section 15.1 of the Divorce Act[3] provides the method for setting child support. More particularly, subsection 15.1(7) appliesin this case because the parties consented to the application of the Provincial Regulation: 15.1 … Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined inaccordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been madefor the support of the child to whom the order relates. [17] Under this provision, the court may therefore determine an amount that is different from that which would be applicable underthe Federal Guidelines, if the arrangements are reasonable.

It is common ground that arrangements in compliance with the ProvincialRegulation are reasonable, as the Court decided in L.(T.) v. P.(L.A.),[4] cited by the judge. [18] Moreover, because the order was retroactive, the judge could determine that setting the support as a function of the FederalGuidelines would have unreasonable financial consequences for the respondent. [19] This ground of appeal is therefore devoid of merit. [20] The appellant also argues that the judge erred by reducing the amount of the support because of undue hardship.

[ 21 ] Concerning the 10% of his income that the respondent must pay agency A for a hockey coach training program as result of an accident that ended his career as a professional hockey player, the judge took it into consideration to establish income and not as undue hardship. [ 22 ] The appellant does not demonstrate any reviewable error by the judge in this regard. [ 23 ] She submits, moreover, that the evidence does not establish that the birth of the respondent’s new child on November 9, 2009, caused him particular financial difficulties.

The judge therefore could not reduce support by $275 a month for that reason. [ 24 ] The appellant also argues that the judge erred by reducing the support by $500 per child to partially cover the cost of plane tickets when the respondent exercised his access rights in Europe. According to the appellant, the evidence does not support such a conclusion.

On the contrary, the respondent has undertaken to pay for plane tickets for his children twice a year. [ 25 ] Concerning the matter of the child born of the new union, the judge said the following: [ translation ] [91] In ... 2009, the father had a new child with his spouse. The father’s spouse is now on maternity leave. The State pays her a net amount of about €500 a month. The father asks that the support that he must provide his new child be taken into account. [92] The mother objects.

She emphasizes that the father’s tax returns enable him to take deductions not only for the newborn but also for the parties’ three children. These deductions exceed a net amount of €15,000 per year, whereas, here, child-support is not deductible and the non-custodial parent does not receive a deduction for dependent children. [93] Here the Court again notes deficiencies in the evidence regarding the father’s tax burden. In the absence of complete evidence, it is dangerous to compare the tax treatment of two countries.

That is a matter for an expert. [94] The Court believes it is necessary to take into account the newborn’s needs because his birth affects the father’s ability to pay for the parties’ children. The Court arbitrates a reduction of the support to $275 a month. [ 26 ] As for the cost of plane tickets, he gave no reason but allowed a reduction of $500 per child in his conclusions: [ translation ] [121] GRANTS the father an amount of $500 per child to partially cover the cost of their plane tickets, for each right of access that he exercises in Europe.

The total of this allocated amount of $500 per child will be deducted, in equal payments, from the support he will pay to the mother for the three months following the children’s return to Canada; [ 27 ]

Section 10 of the Federal Guidelines concerns undue hardship: [5] 10.

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse . Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support ord er, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. Reasons

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so . [ emphasis added. ] [ 28 ] The judge explained his decision concerning the $275 reduction by the expenditures that would result from the birth of the respondent’s new child. Moreover, the evidence showed that he has certain health problems requiring substantial expenditures. However, he failed to do an analysis of the standard of living of the respondent’s household, as required under subsection 10(3) of the Federal Guidelines .

Such an analysis is essential in order for the judge to award an amount of child support that is different from that provided in the Federal Guidelines . This reduction of the support should therefore be annulled. [ 29 ] Furthermore, concerning the $500 reduction per child for airplane tickets, the judge gave no reason for his decision when he decided to award an amount of support different from that stipulated by the Federal Guidelines , as required by subsection 10(6) .

Moreover, the evidence established that the respondent was prepared to pay the cost of the tickets, that he would be pleased to do so, and that it would create no problems for him.

This decrease in the support will therefore be annulled. [ 30 ] The appellant also faults the judge for not having condemned the respondent to pay interest and additional indemnity on the retroactive support. [ 31 ] The judge wrote the following: [ translation ] [71] As for interest, here it is appropriate to cite Michel Tétrault in Droit de la famille : Case law leads us to conclude that support does not prevent the amounts provided from bearing interest at the legal rate and that the court may grant additional indemnity at its discretion. [72] In this case, the facts did not convince the Court that interest and additional indemnity must be added to the unpaid support balance each month. [73] The mother’s new attorney herself pointed out that, when she accepted the mandate in 2009, her client’s file had been inactive since the 2007 judgment.

The failure to act is therefore not due exclusively to the father, but is instead the result of a tacit agreement between the parties. [74] At paragraph 15 of the agreement of July 2007, the parties undertook mutually to send each other their income tax returns, 10 days after their completion. In the case of the mother, that gave a deadline of May 10 each year. She did not respect this undertaking. [75] In the case of the father, however, the country’s tax regime requires a tax return to be filed within two years of the end of the current calendar year.

Thus for fiscal and calendar year 2007, the father had to file his return at the latest on December 31, 2009, and send it to the mother by January 10, 2010. On March 15, 2010, he provided a translation of his notice of assessment. [76] The mother erroneously represented that her 2007 income would be about $26,367. Instead, it was $47,963. The Court has already dealt with the difference in the father’s income. [77] Tardiness in activating the file is therefore the parties’ common responsibility. The Court cannot conclude that the obligation to advance the file fell on the father’s shoulders.

Support is paid for the benefit of the parties’ children. Each of the parties must therefore act so that the hearing takes place rapidly if such party deems it to be necessary. Currently, the Court is hearing, four years later, the merits of the application to vary the corollary relief. [78] The Court therefore rejects the mother’s application for interest and additional indemnity. [ citation omitted. ] [ 32 ] The court has discretionary power to grant interest at the legal rate and additional indemnity on amounts due as support.

In this case, the judge clearly explained his reasons for refusing such an application. The appellant did not convince us that he committed an error in so deciding. [ 33 ] The appellant was also of the opinion that the judge erred by refusing to grant her a provision for costs. Such an application is payable as support, and a trial judge enjoys considerable discretion in such a matter.

An appellate court will intervene only if “the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong”, [6] which is not the case in this instance. [ 34 ] The appellant would also like the Court to intervene to change the access rights granted. Once again, the trial judge has a great deal of discretion. [7] To succeed on appeal, the appellant had to establish a material error by the judge, which she did not succeed in doing. [ 35 ] Lastly, the appellant faulted the judge for certain omissions.

He allegedly failed to provide for the exchange of the parties’ income tax returns each year and to take note that the parties had agreed to respect the children’s wishes concerning the respondent’s rights of access.

[ 36 ] Concerning transmission of the respondent’s income tax returns,

section 25 of the Federal Guidelines allows the appellant to obtain them by sending him a written request. As for the agreement between the parties concerning respect for the children’s wishes regarding rights of access, the judge was justified, in light of the evidence, in not making an order on this matter.

FOR THESE REASONS, THE COURT: [ 37 ] ALLOWS the appeal solely to strike out paragraph [121] of the conclusions of the trial judgment and to replace paragraph [120] with the following: [120] ORDERS the father, retroactive to January 1, 2010, to pay the mother monthly child support of $1,830.33; [ 38 ] Without costs, given the nature of the dispute. JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. Mtre Francine Larouche Larouche, Éthier For the appellant Mtre Denise Descôteaux Fontaine, Descôteaux For the respondent Date of hearing: June 8, 2011