2022 QCCA 624, 2022 QCCA 624

Droit de la famille — 22715 2022 QCCA 624 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029531-217 (500-12-330537-162) DATE: May 4, 2022 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. H. L. APPELLANT – Plaintiff v. W. G.

RESPONDENT – Defendant JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). [ 1 ] The appellant appeals against a judgment of the Superior Court, District of Montreal (the honourable Madam Justice Aline U.K.

Quach), dated April 30, 2021, [1] which ruled on the accessory measures, as well as on the partition of the family patrimony and the partnership of acquests. [ 2 ] While there were a large number of disputed issues before the trial judge, the appellant appeals only on certain specific points regarding the partition of the family patrimony and the partnership of acquests, as well as the calculation and retroactivity of the respondent’s obligation to pay support for the parties’ child. 1.

Family patrimony and partnership of acquests [ 3 ] In this regard, the appellant argues that the trial judge committed three errors. [ 4 ] First, she submits that the judge erred by including, in the composition of her acquests, an amount of $194,560.17 as the balance of her bank accounts. She asserts that this amount represents the balance as at January 9, 2015, the date she had alleged as the date of separation and as the date for valuing the acquests.

Since the judge rejected this date, accepting that of February 8, 2016, the appellant argues that the judge should have included the amount of $108,389.35, which represents the balance of her bank accounts on that date. In response, the respondent unsuccessfully attempted to explain the amount the judge included. From a reading of the judgment, [2] it is clear that this is a clerical error. This ground must succeed. [ 5 ] The same is true of the second error.

The appellant rightly argues that, in establishing the respondent’s acquests, the judge failed to take into account an amount of 258,820.87 yuan – converted to CDN$54,352.38 – representing the balance of a bank account on the date of separation. This amount appears in Exhibit D-44, an exhibit admitted by the parties. Here, too, the respondent was unable to explain or justify this omission. [ 6 ] The third error the appellant alleges pertains to the valuation of the family residence.

The appellant faults the judge for having used the net value of this residence in December 2016 rather than in February 2016, which is when the separation occurred. She therefore asks that half of the principal paid down between February 2016 and September 2016, namely $3,837.03, be deducted from the respondent’s share. The appellant stated that she is not claiming amounts beyond September due to a gap in her evidence. [ 7 ] This ground must fail.

Not only is the amount in question proportionately of minimal significance, but on this issue, as on many others, the judge had to adjudicate based on evidence that was incomplete and difficult to understand. It is not the role of this Court, relying on a piecemeal record, to reassess this evidence. [ 8 ] In short, the acquests should have been established as follows:

APPELLANT RESPONDENT Condominium $247,387.78 Bank accounts $108,389.35 $54,352.38 TOTAL: $355,777.13 $54,352.38 [ 9 ] Thus, each party’s share in the acquests is $205,064.75. The appellant therefore owes the respondent $150,712.37, not $220,973.97. Paragraph 232 should be amended accordingly. 2. Child support [ 10 ] Child support was paid to the appellant out of funds held in a trust account for both parties.

The judge ordered a retroactive reduction, to May 1, 2016, of the child support payable by the respondent, took that amount into consideration in partitioning the trust account and ordered the appellant to reimburse the overpayment. [ 11 ] In this regard, the appellant points to two errors. [ 12 ] The respondent does not contest the first one. In paragraph 222 of the judgment under appeal, the judge concluded that the appellant has to reimburse $45,331.50 for an overpayment of child support.

This amount, however, which was paid out of the funds held in trust and was taken into consideration by the judge in partitioning that account, could not be owed a second time by the appellant. This paragraph will be struck. [ 13 ] The appellant further pleads that the judge did not give sufficient weight to the impact that the retroactive reduction of child support would have on her financial ability to care for him in the future.

The effect of the judgment, even without the reimbursement order, was that a large portion of the amounts that she had received for the child’s needs would no longer be considered child support payable by the respondent from his share of the trust account but would be deducted from her share. [ 14 ] The reimbursement by the recipient of support of an overpayment following a retroactive variation of a support order entails well-known risks, such that our Court has granted these types of applications with caution. [3] The Supreme Court, in the recent ruling in Colucci v.

Colucci , stated that such applications require the court to balance three interests, namely the child’s interest in a fair standard of support, the payor’s interest in flexibility, and the interest of the child and recipient in certainty. [4] The fundamental concern, however, must be to safeguard the child’s interest in receiving the appropriate amount of support. [5] Each case turns on its facts and, in this regard, trial judges have wide discretion. [6] [ 15 ] Admittedly, on this point, the judgment is cursory, and the judge was not entitled to simply state that in light of the appellant’s assets in the family patrimony and in the partnership of acquests, which assets were held in trust, the retroactive nature of the order would not cause her any difficulties nor would the child suffer as a result.

Support recipients are not required to sacrifice their assets for the child’s needs. [ 16 ] Nonetheless, in light of the highly particular circumstances of the case at bar and, above all, the fact that the appeal record contains only part of the evidence and stenographer’s notes, the Court cannot intervene. Specifically, it would appear from the appeal record that the respondent’s application to vary the support, which application was initially filed in the trial record on December 7, 2016, and alleged a reduction of his income, was postponed repeatedly and was never adjudicated.

Is this due to the parties’ submissions to the effect that this issue would be adjudicated with the other accessory measures, which is what the trial judge did? The appeal record does not provide an answer to this question. In light of the filing date of the respondent’s application to vary and given all of these circumstances, it would nevertheless be appropriate to modify the judgment under appeal so that the support is varied retroactively to January 1, 2017, rather than May 1, 2016.

The proposed adjustment would thus be itemized as follows: YEAR ADJUSTED CHILD SUPPORT From May 1, 2016 to December 31, 2016 (no adjustment) $956.63 / mo. x 8 = $7,653.04 From January 1, 2017 to December 31, 2017 $125.63 / mo. x 12 = $1,507.56 From January 1, 2018 to December 31, 2018 $179.23 / mo. x 12 = $2,150.76 From January 1, 2019 to December 31, 2019 $156.21/ mo. x 12 = $1,874.52 From January 1, 2020 to December 31, 2020 $144.54 / mo. x 12 = $1,734.48 From January 1, 2021 to April 30, 2021 $132.67 / mo. x 4 = $530.68

TOTAL: $15,451.04 [ 17 ] The support owed by the respondent ($15,451.04), to which the special expenses of $13,336.66 – which are not contested on appeal – must be added, will thus be deducted from the respondent’s share of the funds held in trust, which share must therefore be calculated as follows: FAMILY PATRIMONY Respondent’s share relating to the family residence $180,603.58 Respondent’s share relating to the movable property that furnishes the family residence $5,000 Advance received ($25,000) PARTNERSHIP OF ACQUESTS Amount owed to the respondent following the dissolution $150,712.37 SUPPORT Adjusted child support ($15,451.04) Arrears owed to the appellant for daycare fees ($13,336.66) TOTAL: $282,528.25 [ 18 ] Since the balance of the funds held in trust on the date of the judgment was $366,325.56, the appellant would retain an amount of $83,797.31 on that date.

FOR THESE REASONS, THE COURT: [ 19 ] ALLOWS the appeal in part for the sole purpose of modifying the judgment rendered on April 30, 2021, in file 500-12-330537- 162, by striking its paragraph 222, adding paragraph 232.1 and replacing its paragraphs 221, 232, 233, 234 and 235, as follows: [221] ORDERS the Husband to pay to the Wife child support as follows:

a) As of May 1st, 2016: $956.63 per month;

b) As of January 1st, 2017: $125.63 per month;

c) As of January 1st, 2018: $179.23 per month;

d) As of January 1st, 2019: $156.21 per month;

e) As of January 1st, 2020: $144.54 per month;

f) As of January 1st, 2021: $132.67 per month. [232] ORDERS the Wife to pay to the Husband the sum of $150,712.37 as a result of the partition of the partnership of acquests, payable from her share of the funds held in trust; [232.1] ORDERS that the husband’s share of the funds held in trust be reduced by an amount of $15,451.04 for child support and an amount of $13,336.66 for daycare fees; [233] DECLARES that the Husband is entitled to receive in total $282,528.25 from the funds held in trust; [234] AUTHORIZES Me Joan Benson to remit to the Husband the amount of $282,528.25 from the funds held in trust; [235] AUTHORIZES Me Joan Benson to remit to the Wife the balance of the funds held in trust, in the total amount of $83,797.31; [ 20 ] Without legal costs given the nature of the case.

YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A. BENOÎT MOORE, J.A. Mtre Emily Kissel MILLER THOMSON For the Appellant Mtre Joan Benson For the Respondent Date of hearing: April 28, 2022