2016 QCCA 168, 2016 QCCA 168

Droit de la famille — 16237 2016 QCCA 168 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025123-159 (500-12-284938-069) DATE: January 15, 2016 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. GUY GAGNON, J.A. MARTIN VAUCLAIR, J.A. J. S. APPELLANT – Plaintiff v. D. Z. RESPONDENT – Defendant JUDGMENT [ 1 ] Pursuant to a judgment of July 2 nd , 2010, [1] the Appellant divorced the Respondent.

The parties appear not to be collaborating and a number of filings and court appearances occurred after the divorce: the Superior Court’s docket shows that there are 123 entries in this case after July 2 nd , 2010. [ 2 ] The Appellant now appeals from a judgment rendered orally on February 23 rd , 2015, [2] by the Honourable Claudette Picard J., and she challenges two of the conclusions reached by her.

The relevant passage of the judgment, which ruled on special expenses incurred by the Appellant and for which she claimed reimbursement from the Respondent, are set out in the reasons and orders which follow (the “Alary Judgment” is the judgment of July 2 nd , 2010; evidently, the “Mother” and the “Father” are the Appellant and the Respondent): “FRAIS DE GARDE NETS” [13] The Alary Judgment orders the Father to pay $300 per week for the “frais de garde nets”. [14] A full time nanny was working in May and June 2014.

During the summer 2014, a cleaning lady was employed and that the Alary Judgment does not apply to this type of help. As of September 2014, the Mother has been paying a person to take care of the children for $300 a week as per paragraph 242 of the Alary Judgment. [15] The Mother does not presently have any receipts for such payments but the Court accepts her testimony in this respect. The outstanding arrears for the “frais de garde nets” are $9,600 (May 2014 to June 2014: 8 weeks X $300 = $2,400 and from September 2014 to this date: 24 weeks x $300 = $7,200).

COSTS OF THE TUTOR [16] The Father has paid the cost of the tutor as provided for in the judgment of the undersigned of January 22, 2013, up to May 2014, which is past the period to which he had agreed to in the said judgment, which was to terminate at the end of the 2012 - 2013 school year.

The Court will not intervene on this point but considering the Father’s Motion in modification, the Court reserves the Mother’s right to claim the costs of the tutor from May 2014 or prior thereto, if the Father is claiming a reimbursement thereof in his Motion. […] [19] FOR THESE REASONS, THE COURT: […] [21] FIXES the arrears of child support and “frais de garde nets”, for the period of May 1 st , 2014 to this date at $20,634.76, such payment to be made to the Mother within 21 days of the present judgment; [22] RESERVES the right of the Mother to claim tutor fees for Y for the period posterior to April 2014, during the hearing of the Father’s Motion in modification, and for the period prior thereto, if the Father is claiming reimbursement thereof;

The amount of $20,634.76 in paragraph [21] of the judgment includes the $9,600 mentioned in the previous paragraph [15]. [ 3 ] The appellant now claims that there are two flaws in this judgment which warrant its reversal: the motions judge would have erred in law by not including into the “frais de garde nets” an amount of $3,200 for a nanny in July and August 2014, and she would have erred again by varying the terms of an earlier order pertaining to the cost of the tutor. [ 4 ] On both counts, the appeal must fail. [ 5 ] As regards the “frais de garde nets”, reference must be made to the judgment of July 2 nd , 2010.

The following two paragraphs are relevant: [235] Actuellement, Madame emploie une gardienne qui vit chez elle, du dimanche soir au vendredi soir. Cette personne est payée 500 $ par semaine, plus 45 $ par semaine de frais de téléphone… Madame lui verse donc 100 $ en argent comptant, par jour. Elle demande que Monsieur continue d'assumer ces coûts. […] [242] Il est vraisemblable que Madame ait besoin d'aide le soir après l'école pour les devoirs, le souper et la toilette des enfants, ce qui peut représenter une aide d'environ quatre heures par jour, cinq jours par semaine.

Le Tribunal est d'avis que seuls ces frais devraient être payés par Monsieur tant que Madame ne travaille pas. À un tarif que le Tribunal fixe à 15 $ net de l'heure, tous frais compris, il s'agit d'une somme hebdomadaire de 300 $. [Emphasis added] It is apparent from these passages that Justice Alary took the view that a reasonable sharing of expenses between the Appellant and the Respondent would make allowance for some assistance from a part-time nanny during the school year.

This is at most a question of fact and Justice Picard cannot be faulted for having understood the Alary judgment as she did in her judgment February 23 rd , 2015. [ 6 ] As regards the cost of the tutor, Justice Picard was revisiting an earlier judgment she had rendered orally and between the same parties in January of 2013.

The minutes of the hearing state: Le Tribunal demande à ce que soit consigné au procès-verbal ce qui suit : The father agrees to pay the fees for a tutor in french ( sic ) for Y provided he is advised by Y’s French ( sic ) teacher that such tutoring is necessary, if ( sic ) being agreed, that in such a case, the father will be kept informed by the tutor and the teacher of the progress of such tutor; the undertaking to be until the end of the present school year. The Court ORDERS the father to conform to it.

Again, Justice Picard’s reading of this order in her judgment of February 23 rd , 2015, appears entirely consistent with what was decided in January 2013. [ 7 ] Judgments such as these fall into the category of what the Honourable Roger P. Kerans (a former Justice of the Court of Appeal of Alberta) and his co-author Kim M. Willey call “guideline cases”, where “the case makes many factors relevant, and requires the decision-maker to weigh and balance them”. [3] After quoting a passage from the reasons of Morden J.A. in Harrington v.

Harington , [4] these same authors write: We understand this to say that errors about the governing rules (“principle”) will be subject to review for “correctness” or concurrence, but, apart from that, the decision itself (the “final award”, which must assess and balance the many factors made relevant by the governing rules), will be reviewed on an unreasonableness (“clearly wrong”) standard. [5] It cannot be said here that the judgment of February 23 rd , 2015, is so defective as to warrant reversal in the manner sought by the Appellant. [ 8 ] FOR THESE REASONS , the Court : [ 9 ] DISMISSES the appeal.

YVES-MARIE MORISSETTE, J.A. GUY GAGNON, J.A. MARTIN VAUCLAIR, J.A. Mtre J. S. Personally Mtre Guy-Philippe Bouchard For the appellant

Date of hearing: January 14, 2016