r v. DE... A..., 2012 QCCA 1094

Unofficial English Translation [*] Droit de la famille — 121427 2012 QCCA 1094 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No: 500-09-021820-113 (550-12-027428-084) DATE : June 12, 2012 CORAM : THE HONOURABLE MARC BEAUREGARD, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. D... H... APPELLANT – Petitioner v. DE... A... RESPONDENT – Respondent JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court (District of Hull, the Honourable Mr.

Justice Martin Bédard) [2] rendered on May 13, 2011, that dismissed her motion to condemn the respondent to pay her support. [ 2 ] For the reasons of Hilton, J.A., with which Gagnon, J.A. agrees; THE COURT: [ 3 ] DISMISSES the appeal, without costs; [ 4 ] For his part, Beauregard J.A. would have allowed the appeal and granted the motion, without costs, condemned the respondent to pay the appellant, within 45 days of the ruling, a lump sum of $10 000, with interest of 5% a year as of the expiry of that time period. MARC BEAUREGARD, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. D... H...

Personally Mtre Jean Lazure For the respondent

Date of hearing: April 19, 2012 REASONS OF HILTON, J.A. [ 5 ] The facts and proceedings giving rise to this appeal are described by Beauregard J.A., whose opinion I have had the advantage of reading.

I agree with his proposed disposition of the various grounds of appeal advanced by the appellant, save for his conclusion to award a lump sum payment of $10,000 to the appellant. [ 6 ] Apart from the appellant not having made any such request in her proceedings in the Superior Court or in her appeal to this Court, there is no basis to disturb the trial judge's finding that the appellant's current plight is not related to a breakdown of the marriage but rather to a medical condition that pre-dated the marriage. [3] [ 7 ] As far as the respondent is concerned, I cannot conclude that he would have the financial means to satisfy a lump sum award of $10,000.

I note the trial judge's findings relating to his limited annual earnings, that he had to re-hypothecate his home to satisfy the payment of $10,000 to the appellant as her share of the family patrimony, and that his home valued at $135,000 is already hypothecated to the extent of $123,000, with monthly payments amortized over a period of 35 years. [4] I also note the trial judge's conclusion that the respondent has no other assets. [5] [ 8 ] The appellant's other ground of appeal relating to the language in which the judgment was written proceeds on a misunderstanding of the applicable law and does not give rise to the relief she claims. [ 9 ] Despite my sympathy for the appellant's plight, I can see no basis in law that would properly allow the Court to modify the judgment of the Superior Court.

I would therefore dismiss the appeal, without costs in the circumstances. ALLAN R. HILTON, J.A. REASONS OF BEAUREGARD, J.A. [ 10 ] The appellant appeals from a judgment of the Superior Court (District of Hull, rendered on May 13, 2011, by the Honourable Mr.

Justice Martin Bédard) [6] that dismissed her motion to condemn the respondent to pay her support. [ 11 ] The facts were correctly summarized by the Superior Court judge, although, after writing that the appellant was 48 years of age in 1999, the judge subsequently made an error, stating that the appellant was 48 years of age at the time of the marriage in 2001. [ 12 ] That error is obviously of no consequence. [ 13 ] The appellant faults the judge for failing to understand that, although she was born in Germany, she became a Canadian citizen before her motion.

A reading of the evidence, however, does not show that the judge was made aware of this fact.

In fact, when he asked the appellant why she did not return to Germany, where she could earn a living more easily, the appellant gave a reason and made no mention of the fact that she had obtained Canadian citizenship and had therefore lost her German citizenship. [ 14 ] The appellant faults the judge for being racist, a grievance that has no foundation whatsoever. [ 15 ] As the date of the marriage was October 19, 2001, and the parties separated on April 28, 2007, the judge indicated that the marriage had lasted five and a half years.

Since the parties continued to live in the same house until July of 2008 despite the separation, the appellant suggests that the marriage did not last five and half years but eight years, if the fact that the parties began to live together one year before the marriage is also considered. [ 16 ] The appellant has not shown that the judge erred.

In any case, whether the parties were separated on April 28, 2007, or in July of 2008 is not of great importance. [ 17 ] The appellant also faults the judge for neglecting to mention the fact that the respondent had stolen many things from her. [ 18 ] It is obvious that the judge did not believe the appellant’s testimony in that regard and that he concluded that the respondent, who denied the appellant’s contention, was telling the truth. [ 19 ] The appellant faults the judge for not taking into consideration that the respondent stated during the trial that he was prepared to provide her with support.

[ 20 ] That is not what the respondent said; he merely stated that he would abide by the Court’s decision in that regard. [ 21 ] To enable the appellant to receive permanent residency status in Canada, the respondent had to make an undertaking to the government that he would provide the appellant with the necessities of life until 2012.

The appellant relies on that contract in support of her position. [ 22 ] The respondent is correct in contending that his undertaking to Canada did not create a direct obligation on his part toward the appellant and that the undertaking is not relevant to a dispute concerning support following a divorce. We do not know whether the respondent has been asked to repay the benefits that the appellant has received since 2009. [ 23 ] The appellant faults the judge above all for his incorrect application of

section 15.2(6) (

c) of the Divorce Act . [ 24 ] The judge concluded that the appellant did not prove that she had renounced something tangible in order to marry. Rather, he concluded that, since she could not earn a living as before, the appellant was going to take advantage of her marriage to the respondent. He stated the following: [ translation ] This is the second marriage for the parties. They were 51 [53] and 48 [50] years of age when they married. Her financial situation prior to the marriage was not adduced in evidence. Nothing shows that she had any financial patrimony whatsoever at the time of the marriage.

It is a risk to marry someone one scarcely knows. To leave her country, her environment was another risk. Ms. H. willingly took that risk when, in her early fifties, she left everything: her work, country, friends, and any family she had. Ms. H. suffered from depression in 2006. According to the evidence, on a balance of probabilities, that health condition was not new to her. Her physician indicates that she has spent her life in a dysthymic state. There is no doubt that the situation has heightened her stress. Is that sufficient to conclude that her situation stemmed from the marriage or its breakdown?

It was up to her to establish this on a balance of probabilities. She did not do so. Marriage is not a pension fund. The parties tried to start a new life when they got married. It did not work. It is shame, but at that point, each party went back to square one. The fact that Ms.

H. took a greater risk does not entitle her to support. [ 25 ] Without subscribing to all these statements by the judge, the Court also concludes that the appellant did not lose anything by getting married. [ 26 ] There is no doubt that the fact that parties had to separate after five and a half years of marriage caused both of them harm, and that this is especially true for the appellant, who was ill, unable to find work for all sorts of reasons, and about to lose her financial support. [ 27 ] But since the appellant had made no tangible sacrifice before marrying the respondent and was not in good health before the marriage, and since the marriage actually lasted no longer than five and a half years, the appellant has not demonstrated that the judge erred in refusing to hold the respondent responsible for the fact that she could not find a job and in refusing to condemn the respondent to pay her a life annuity. [ 28 ] This is particularly the case as the respondent’s income is barely sufficient to support himself and create a modest retirement fund. [ 29 ] It must be said, however, that the situation at the time of separation required that the respondent pay the appellant a certain lump sum to enable her to relocate. [ 30 ] For these reasons, I would allow the appellant’s appeal and grant the appellant’s motion, without costs, and condemn the respondent to pay the appellant, within 45 days of judgment, a lump sum of $10,000, with interest of 5% a year as of expiry of that time period.

MARC BEAUREGARD, J.A. [5] See paragraph [39] of the judgment of the Superior Court.