2011 QCCS 5699, 2011 QCCS 5699

Droit de la famille — 113345 2011 QCCS 5699 JD2646 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF HULL No: 550-12-028168-093 DATE: October 21 st , 2011 ______________________________________________________________________ By: THE HONOURABLE PIERRE DALLAIRE, J.S.C. ______________________________________________________________________ D. M. Plaintiff v. K. R. Defendant. ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] An Introductory Motion for divorce was filed by Mr D. M. (the father) against Mrs.

K. R. (the mother) in July 2009. [ 2 ] The parties are to be commended for having been able to resolve on their own many of the questions raised in this Divorce case. [ 3 ] They have agreed on joint custody of their child X and, during the hearing, they informed the court that they will be able, with some flexibility, to manage together the details pertaining to the movements of the child between them, without the intervention of the Court. [ 4 ] Most of the questions related to division of family patrimony and matrimonial regime were also settled amicably. This judgment will reflect these agreements.

Grounds for divorce [ 5 ] At the beginning of the hearing, both parties agreed that the Divorce should be granted on the basis that the parties have lived separate and apart for at least one year. [1] [ 6 ] It is admitted that they have lived apart since April 20, 2006. Consequently, the divorce will be pronounced on these grounds.

Child support [ 7 ] The parties having agreed on joint custody of their son X, who will soon be eleven years old, the Court must determine, for his benefit, the appropriate child support. [ 8 ] Since the separation, it seems that the father has paid to the mother [2] , as child support, an amount of 1 000 $ per month, voluntarily, in the absence of any judgment. [ 9 ] The financial situation of both parents cannot be more different. [ 10 ] The father has an annual salary of 110 091,60 $ according to a letter from his employer [3] , and declared a total income of 117 276 $ on his 2009 tax return.

This last amount will be used for calculation because it is obvious that the father receives either overtime pay or additional sources of income other than his base salary. [ 11 ] The mother has no other income than the 1 000 $ provided by the father for child support. [ 12 ] It must be noted that, the father residing in Ontario since the official date of separation, and the mother residing in Quebec, the Federal Child Support Guidelines must be applied. [4] The applicable table is the Ontario table because the parent requesting the Tribunal's intervention is, in this case, the father. [5] [ 13 ] On the basis of the father's salary, the child support for X should be an amount of 1 009 $ per month. [ 14 ] In the present case, the father is asking the Court to diminish the amount to 500 $ on the basis that there is joint custody of the child.

His lawyer also argued that, if the Quebec guidelines were applied to the case, the amount to be paid would be in the vicinity of 230 $ and that it would not be fair to ask him to pay 1 000 $.

[ 15 ] In situations of shared custody, we find the applicable principle in the Federal Child Support Guidelines: «Shared Custody 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

a) the amounts set out in the applicable tables for each of the spouses;

b) the increased costs of shared custody arrangements; and

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.» [ 16 ] On this basis, the Court has the discretion to determine the amount of child support by taking into account these elements which include "the amounts set out in the applicable tables for each of the spouses". [ 17 ] In the present case, the amount set out in the applicable table for the mother would be "0" considering that she has no income. [ 18 ] Does this mean that the Court should determine that the father must pay 1 000 $ for child support because no contribution can be expected from the mother? [ 19 ] This would have the effect of giving the mother the same amount she would get for exclusive custody.

Also, the father would have no credit whatsoever for taking care of the child half of the time. [ 20 ] In the present case, taking into account the three criteria which are:

a) the amounts in the applicable tables (under which the mother should not have to pay)

b) the absence of evidence of increased costs related to shared custody

c) the fact that the father benefits from a much better financial situation than the mother, the Court determines that the father should pay an amount of 600 $ per month for child support. [ 21 ] On the question of special or extraordinary expenses [6] , the father has agreed to pay 100% of these expenses inasmuch as he is consulted before the expense is made, particularly for medical expenses because the mother seems to believe that the child suffers from some kind of Environmental Illness.

In other words, the father wants to obtain a second medical opinion before paying for expenses related to this situation. [ 22 ] Consequently, the father will be ordered to pay 100% of special expenses, being understood that he must be consulted before any expense is made. The Family Patrimony and Matrimonial Regime [ 23 ] Most of the assets of the parties were divided between them during the period preceding the separation.

a) The house, the furniture and the automobiles [ 24 ] The family home, in Town A, was sold and the proceeds were used to pay some debts of the family and the remaining amount was satisfactorily divided between the parties. From the testimony of the mother, it seems that an amount of 55 000 $ was received by both parties following this sale. [ 25 ] The furniture was also divided between them, as were the automobiles, to their satisfaction. [ 26 ] The mother did raise an issue related to the family home.

She indicated that, when the parties purchased a previous house, in Ottawa, she contributed an amount of 31 000 $ originating from funds she had before the marriage. [ 27 ] It must be said that both parties agreed on one point. They both took money out of their RRSP's to pay the down payment on the house. It seems that they both have a debt toward their RRSP's of around 4 000 $. [ 28 ] The mother did not provide any documentary evidence of the alleged contribution of 31 000 $ to the down payment of this earlier home. She does not even seem sure of the amount itself.

In other words, there is no evidence permitting the Court to take into consideration this element in a context where the parties have already shared the proceeds of the house they owned contemporarily to their separation. [ 29 ] Consequently, the Court arrives at the conclusion that these elements have been already divided between the parties and that there is nothing left to divide.

b) the RRSPs [ 30 ] There is no disagreement that the proceeds of the RRSP during the marriage should be divided equally. [ 31 ] Both parties had a certain amount in their respective RRSP before the marriage. For the father, this amount was 8 125,38 $. For the mother, this amount was 22 383 $. These amounts are not to be divided. [ 32 ] The father testified that, at the date of the separation, his RRSP value was 48 171 $ and that, at the time of the hearing, the value is now at 61 847 $ [7] .

Using this last value, he subtracted the 8 125,38 $ he had before the marriage to arrive at an amount of 53 721,62 $ to be split equally between the parties. This would result in a share of 26 860,81$ for the mother.

[ 33 ] The Court gives act to the fact that the father is ready to split his RRSP at a date which is more favourable to the mother, that is the date of the trial, instead of the date at which the proceedings were instituted or the date of the breakdown of the marriage. Otherwise, the court would have used the date of the separation, that is the date of the breakdown of the marriage. He must be commended for his generosity on this point. [ 34 ] The situation of the mother is a little more complicated. [ 35 ] Firstly, there is no record of the amount she had in her RRSP at the time of separation.

The investment statement filed in Court, which is closest to the separation date, is dated December 31, 2009 [8] and it shows that, on January 1, 2009, the RRSP had a value of 40 441,60 $.

The same statement shows that, in December of the same year, the RRSP had fallen to an amount of 23 749,30 $. [ 36 ] A subsequent statement, dated June 30, 2011, much closer to the date of trial, shows that the RRSP has, at this time, a value of 717,86 $. [ 37 ] In response to a question from the Court, the mother indicated that this rather brutal diminution in the value of the RRSP is simply due to the fact that she is using these funds to live from day to day.

It is her only source of income other that the child support and the funds are obviously close to being completely spent. [ 38 ] This being said, in law, the Court must determine the date at which the division of assets must be made.

Here, considering the available evidence, it is appropriate to determine the value of the mother's RRSP on January 1, 2009, that is the closest date to the separation of the parties. [ 39 ] Taking into account that the mother had 22 383 $ in her RRSP before the marriage, this amount must be subtracted from the amount of 40 441,60 $ she had at the time of separation, leaving an amount of 18 058,60 $ to be divided.

Consequently, the father's share would be 9 029,30 $. [ 40 ] If the father has to transfer 26 860,81$ to the mother, and the mother has to transfer 9 029,30 $ to the father, operating compensation between these figures will leave the father with a debt of 17 831,51$ which will have to be transferred to the RRSP of the mother. [ 41 ] This is what will be ordered by the Court.

c) The Private Pension Plan [ 42 ] From the testimony of the father, in lieu of better evidence, it seems that he is benefiting from a private pension plan established by his employer and that the value of the plan has been estimated at 38 184 $. The father indicated that he agrees that the mother should receive 19 082 $, that is half of the value of the plan. [ 43 ] In the opinion of the Court it should be left to the administrator of the pension plan to calculate the value of half of the amount accumulated in the plan from the date of marriage until the date of separation, and transfer such amount to the investment plan chosen by the mother. This is what will be ordered by the Court.

d) Canada Pension Plan and Régie des rentes du Québec [ 44 ] From the evidence, it seems that both parties are likely to have participated in contributing to these public pension funds. There is no debate that the amounts accumulated, by both parties, should be divided between them in accordance with the law, for the period between the marriage and the separation. So will it be.

Spousal support [ 45 ] This is certainly the most difficult aspect of this Divorce case. [ 46 ] From the date of separation in 2006 to the introduction of Court proceedings at the initiative of the father in 2009, the mother never took any step to obtain spousal support. [ 47 ] The first reference to such a demand is found in her initial Defence, dated January 2010, in which it is stated that she cannot work as a result of "a debilitating medical condition known as Environmental Illness or Multiple Chemical Sensitivities". This defence did not include conclusions requesting spousal support.

A subsequent Amended Defence, dated June 18, 2010, corrected this omission by asking for "spousal support retroactive to the date of separation". [ 48 ] In the following months, the mother was left without legal representation when her lawyer ceased to represent her. She represented herself at the trial. [ 49 ] She seems to be eligible for legal aid but, interrogated on this point by the Court, she indicated that she had taken some steps in this direction at the onset of the proceedings but that she had not done anything lately to seek legal assistance.

This is unfortunate. [ 50 ] So is the fact that the mother admitted, in cross-examination, that she never tried to obtain benefits for invalidity from the Régie des rentes du Québec. She did not seem to know that she may be eligible for some monetary benefits. [ 51 ] The evidence shows that the mother did not work outside the home from the birth of X in 2000. The father testified that this situation was supposed to last only one or two years and that she should have returned to work. The reality is that she did not. She was a

stay-at-home-mom while the father had a job which required him to travel a lot, leaving the mother to take care of the child. [ 52 ] From 2003, the mother says that she has been suffering from a sickness caused by the presence of chemicals or substances in her environment. No medical or expert evidence has been presented in court about this out of the ordinary medical condition. [ 53 ] It must be said that, in court, the mother did not seem affected in the least by this condition.

She had clear eyes, no visible discomfort, an ability to express herself competently, and she admitted in cross-examination that she could do complicated tasks like completing her income tax returns on her own. [ 54 ] The evidence also shows that she can go out a lot, to restaurants like McDonald, Wendy's, Bridgehead Coffee Shop, A & W, Second Cup, Swiss Chalet [9] .

In brief, the kind of places where it is easy to be exposed to perfumes, different odours and some chemicals in some products. [ 55 ] When asked, in cross-examination, what she did all day, she answered: "I rest". [ 56 ] In two words, the evidence of the alleged medical condition is simply not strong enough to justify spousal support on this basis. [ 57 ] This being said, the Court is being asked for spousal support by a person who was a stay at home mother since the birth of their son in 2000. [ 58 ] She has not worked since the separation, on the basis of her stated incapacity to occupy a job.

This being said, there is no evidence that she would have been able to find a job during that period of time in the absence of the alleged medical condition, considering her lack of career or recent job experience. [ 59 ] She has no income to support herself except for the 1 000 $ paid voluntarily by the father since the separation.

This amount will be reduced to 600 $ a month from the date of this judgment. [ 60 ] The fact that she was not represented and did not provide much evidence does not relieve the Court from its duty to examine her situation in light of the applicable legal principles to determine if she should receive spousal support. [ 61 ] The lawyer representing the father indicated that the Court, if the situation of the mother is not clear enough, can always reserve her rights to ask for spousal support at a later date if she can then justify why she cannot become financially autonomous. [ 62 ] This is one way to look at the situation. [ 63 ] The other is to take into consideration some very troubling facts which are quite clear, and uncontested, even at this time. [ 64 ] One fact is that we are dealing with a mother that did not work during the marriage, staying at home to take care of the child. [ 65 ] Another fact is that she has absolutely no personal income since the separation in 2006. [ 66 ] A further fact is that the evidence shows that she has survived by completely depleting her RRSP who went from 40 387,30 $ in January 2009 to 23 749,30 $ in December of the same year, to 720,20 $ in June 2011. [ 67 ] In this context, stating that she is "financially independent" [10] would seem like a bad joke. [ 68 ] Of course, the fact that she has not asked for spousal support for more than three years until her defence is troubling.

Her testimony is that, through these years, she always thought that an agreement would be completed granting her such support. [ 69 ] Obviously, it did not happen. [ 70 ] This being said, any decision of the Court on spousal support must be based upon the applicable legal principles. [ 71 ] There is no question that this Court may, on application by either spouse, make an order requiring the other spouse to pay periodic sums, as the court thinks reasonable, for his or her support [11] . [ 72 ] Two very important decisions, one by the Court of Appeals, rendered on November 10 th , 1992 [12] , the other by the Supreme Court of Canada, rendered on December 10 th 1992 [13] , are providing the main guidelines we must follow in determining if spousal support can be granted or not. [ 73 ] In brief, the factors or criteria which must be taken into consideration by the court are, collectively, the following: the needs and the means of the parties, the compensatory nature of the spousal support, the financial autonomy as a goal to attain, the role played by the parties during the marriage (working outside the home, staying home for the children), the duration of the marriage, and if the dire situation of the spouse requesting spousal support is a consequence of the marriage. [ 74 ] Let us look at the present case in light of these criteria. [ 75 ] Firstly, the means of the parties are grotesquely different.

While the father earns more than 110 000 $ a year, the mother has no income whatsoever. [ 76 ] As for the needs, the Statement of Income and expenditures and Balance Sheet filed by the mother shows that she has a net worth of 4 000 $ and a monthly deficit of 3 090,63 $, taking into account the 1 000 $ a month received as child support. Without child

support, the deficit is more than 4 000 $ a month. [ 77 ] Of course, this balance sheet, even if it was not contested specifically during the hearing, must be taken with a grain of salt. 1 000 $ a year for vacations, 1 920 $ for restaurant (for leisure), 4 500 $ a year for clothing, are more than what is necessary, but even in reducing and eliminating some items will still leave a very substantial deficit in the absence of any income. [ 78 ] It is clear that the mother stayed at home during the marriage and did not have the opportunity to work outside the house and have a career. [ 79 ] The marriage was neither a short one, neither a very long one.

Eight years is still a substantial period to stay married and develop roles that will cast long shadows after the separation. [ 80 ] In this case, the financial difficulties of the mother seem to be the consequence of her role during the marriage, at least in part. She came out of the period of living together without a job or a career and she has not worked since the separation. [ 81 ] All these factors, examined globally, lead to the conclusion that the mother is entitled to spousal support for the time being. [ 82 ] The fact that she is claiming to be invalid is not a factor considered by this court.

There is no evidence rendering the existence of this fact more probable than its non-existence [14] and the mother has to bear the burden of evidence. [15] [ 83 ] What is considered by the Court are the elements retained on the basis of the criteria dictated by the higher courts, as enunciated in the above analysis. [ 84 ] The fact that the mother did not take steps earlier to claim spousal support leads the Court to conclude that it would not be appropriate, in this context, to render the order retroactive. [ 85 ] Considering the fact that attaining financial autonomy as a goal is one factor among others that must be considered, the Court is of the opinion that any spousal support, in the present case, must be limited to a specific period during which the mother must take steps to find a job and try and become financially independent. [ 86 ] Taking into account all the facts of the case, a period of three years should be sufficient to permit the mother to become self- sufficient unless, of course, new evidence can establish her invalidity or her right to additional payments.

The burden of evidence will be on her shoulders. [ 87 ] What is the appropriate amount of spousal support in this context? [ 88 ] While the mother has no income, the father earns 116 000 $ a year and has to pay, from now on, an amount of 600 $ for child support.

The fact that he is in a financial position to pay what would be needed to be paid is demonstrated by his decision not to file a Statement of Income and expenditures and Balance Sheet. [ 89 ] In this context, the Court can conclude that his financial situation is strong, that he is not operating with a monthly deficit, and that he can fulfill an alimentary obligation. [ 90 ] Looking at the Federal Guidelines for spousal support, which is simply an optional tool at the disposal of judges, as the Court of Appeals [16] recently reaffirmed, she would be entitled to an amount of between 2 338,33 $ and 2 788,75 $. [ 91 ] An amount of such magnitude, in the context of the present case, where the justification for the mother's refusal or inability to find employment remains murky, would be too high. [ 92 ] On the basis of the analysis made above in accordance with the law [17] and the teaching of the higher courts [18] , exercising its discretion while taking into account all the particular facts of this case, the Court will set at 1 500 $ a month the spousal support to be paid to the mother for the next three years. [ 93 ] It must be noted that this amount is deductible by the father and that, consequently, the financial impact of paying this amount is substantially reduced because it can be deducted in his income tax return.

This element has also been considered by the Court in arriving at this decision. [ 94 ] WHEREFORE, THE COURT: [ 95 ] GRANTS the motion; [ 96 ] RENDERS a judgment of divorce between the parties whose marriage was solemnized on the 13 th Day of September 1998, to take effect on the thirty-first day after the date of the present judgment; [ 97 ] GRANTS joint custody of the child X to both parents, who will both exercise parental authority; [ 98 ] GIVES ACT to the parties of their undertaking to show flexibility in dividing thee time between themselves and granting the other parent access to X in his best interest; [ 99 ] ORDERS the Plaintiff to pay to the Defendant, for child support, an amount of 600 $ per month, starting October 1 st 2011.

It must be understood that voluntary payments made before this judgment cannot be reviewed;

M e Johanne Cousineau Attorney for the Applicant K. R. Defendant Date of hearing: September 14, 2011 [ 100 ] ORDERS that the amount of the above mentioned child support be indexed yearly pursuant to

article 590 of the Civil Code of Quebec ; [ 101 ] ORDERS the Plaintiff to pay 100% of special or extraordinary expenses for X, being understood that he must be consulted before any such expense is made; [ 102 ] ORDERS the Plaintiff to pay to the Defendant, for spousal support, an amount of 1 500 $ per month, starting October 1 st 2011, for a duration of three years ending with the month of September 2014; [ 103 ] ORDERS the transfer to the Defendant of 50% of the value of the accrued benefits of the retirement plan owned by D.

M. with his employer Canada Bank Note Company Limited, from September 13, 1998 to April 20, 2006, and orders the administrator of the plan to establish the value of the part of the rights that will have to be transferred to the investment plan chosen by the Defendant K.

R.; [ 104 ] DECLARES that there will be partition of the registered earnings pursuant to the Quebec pension Plan (Sections 102.1 to 102.10 of the Quebec Pension Plan Act ) and the Canada Pension Plan (Section 55.1 of the Canada Pension Plan Act ) from September 13, 1998 to April 20, 2006; [ 105 ] ORDERS the Plaintiff to transfer to the Defendant a tax "franchise" (form T2220) in the amount of 17 831,51 $ in her RRSP and orders the Plaintiff to sign the necessary documents required for the transfer of 17 831,51 $ from his RRSP to the Defendant's RRSP; [ 106 ] DECLARES that all the other elements included in the Family Patrimony and Matrimonial Regime have been partitioned by the parties; [ 107 ] DECLARES that the effects of the dissolution of the matrimonial regime be retroactive to the date of the matrimonial breakdown, April 20, 2006; [ 108 ] THE WHOLE, without costs. ________________________ PIERRE DALLAIRE, J.S.C .