2016 QCCA 1044, 2016 QCCA 1044

Droit de la famille — 161445 2016 QCCA 1044 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025819-152 (500-12-309265-118) MINUTES OF THE HEARING DATE: June 10, 2016 CORAM: THE HONOURABLE FRANÇOIS DOYON , J.A. nicholas kasirer , J.A. marie st-pierre , J.A. APPELLANT S. H. ABSENT RESPONDENT ATTORNEY A. HA. Mtre SARA-LYNA JULIEN LOMBARDO (Maria R. Battaglia, Avocats) On appeal from a judgment rendered on November 24, 2015 by the Honourable Justice Michel Déziel of the Superior Court, District of Montreal

DESCRIPTION : Amended application for permission to present indispensable new evidence (Art. 380, 206, C.C.P.) Divorce – accessories measures Clerk: Shirley Thomas Courtroom: Pierre-Basile-Mignault HEARING 11:42 Following the hearing on June 9, 2016. The parties were exempted from attending the Court this morning. 11:43 By the Court: Judgment – see page 3. 11:44 Conclusion of the hearing. SHIRLEY THOMAS Clerk BY THE COURT JUDGMENT [ 1 ] S.

H. has appealed a judgment of the Superior Court, District of Montreal, (the Honourable Mr Justice Michel Déziel), rendered on November 24, 2015, which pronounced the divorce of the parties, confirmed their agreement on corollary relief, and dismissed her demand for a spousal support order of $2,000 per month. The appeal bears only on the matter of support. The appellant has also filed a motion to adduce new evidence, which she subsequently amended. [ 2 ] Married on September 10, 1989, the parties are both 54 years of age. They have no children.

The respondent is a dentist; the appellant has been employed at various times during the marriage as a dental assistant, receptionist and a fitness instructor. The respondent filed for bankruptcy in 1993 but began a new dental practice thereafter. [ 3 ] After more than 20 years of marriage, the parties separated in March 2011. On June 2, 2011, the appellant commenced divorce proceedings.

An attempt at reconciliation took place in 2012 which was ultimately unsuccessful. [ 4 ] According to the terms of a consent respecting provisional measures signed in August 2011, the respondent agreed to pay the appellant $500 per month as spousal support, without indexation, and pay an amount of $600 as a provision for costs.

The respondent also agreed to provide the appellant with complete use and possession of the family residence and to pay one-half of the property taxes. *** [ 5 ] The trial judge confirmed an agreement between the parties regarding certain accessory measures, but which explicitly excluded spousal support. The family patrimony and the partnership of acquests were divided and the spouses waived rights to claim a compensatory allowance. Prior to this division of property, the appellant had assets of approximately $822,000, including an amount of about $500,000 that she inherited from her mother’s succession.

The respondent had about $935,000. They shared title in the family

residence and a condominium in Florida. After partition, the appellant owned the family residence outright and the respondent owned theFlorida property, as well as a condominium in Town A purchased, with a hypothec, after separation. [6] Before the trial judge, the only matter in dispute was the appellant’s claim for spousal support of $2,000 per month, indexedannually. [7] The judge noted that the appellant ceased working in December 2010 in order to care for her mother who died of cancer at thestart of the winter of 2011. The appellant’s father had also died of the same illness in 2009.

The appellant herself was diagnosed withbreast cancer in February 2011 and had to undergo two bouts of surgery a few months later. She is presently awaiting a third operation.The appellant stated at trial that she is not able to work full-time, notwithstanding her efforts to that end, because of the illness and herage. She could only work part-time. The respondent disputed this.

He submitted that she was able to work full-time, that she hadsufficient income and, accordingly, was not entitled to support which, in any event, he could not afford. [8] The judge concluded that the appellant’s annual income from all sources was $38,700. He described it as being composed ofthe following. First, her income included revenue from the rental of her garage and office space in her home as well as other transfers offunds totalling $1,500 per month from a Dr B., a former employer and friend who has helped the appellant because of her variousdifficulties.

Second, the judge added a monthly amount of interest income of $1,600 on investments as well as $1,500 as annual incomefrom other sources. The judge also concluded that she had not established her inability to work full-time. In fact, he was of the view thatshe refuses to do so, as demonstrated by her absences from the country for more than four months each year. Referring to her decision toamend proceedings to increase the requested amount of support, the judge wrote: “It is only in December 2014 that the wife asked foradditional spousal support.

It is clear that she is capable of supporting herself and does not require support”. [9] The respondent works four days per week. The judge held that he earns $84,444 as a dentist. The respondent submitted abudget indicating a net surplus of income over expenses of $39.59. The judge wrote: “According to his non contested budget (Form III),he [i.e. the respondent] cannot pay a spousal support. He has a small practice which gives him a modest revenue”. [10] The judge dismissed the appellant’s claim for spousal support. *** [11] The appellant is not represented by counsel.

On appeal, she argues that the judge erred in his estimation of her own income andthat of the respondent; he erred as well in respect of the financial aid provided to her from Dr B.; he also erred in his measure of thesignificance he attributed to her late request for additional support. In oral argument she submitted that the judge erred in saying that herlifestyle had improved since separation and that she was improperly refusing to work.

Furthermore, appellant argues that the judge failedto apply correctly the relevant factors and objectives stated in the Divorce Act. [12] It should be observed that the appellant did not submit complete transcripts of proceedings at trial. [13] She did file a motion to present new evidence. In the main, these are documents relating to the respondent’s finances that werebefore the trial judge but that the appellant had not reproduced in the

schedule to her memorandum in appeal. These include bankstatements from the respondent's chequing account and his Form III (Statement of Income and Expenditures and Balance Sheet). Shealso submits a document that she has prepared analyzing the withdrawals from one of the respondent’s bank accounts. *** [14] As to the motion to adduce new evidence, the Court agrees with counsel for the respondent that the materials submitted do notconstitute, strictly speaking, new evidence.

The documents that were before the trial judge are not “new” within the meaning of the termin the Code of Civil Procedure and the analysis of the bank account transactions is not “evidence” but rather a form of pleading. [15] In point of fact, the appellant seeks by her motion to amend the

schedule to her memorandum by the addition of documents thatwere filed before the trial judge and to add the analysis document to her argument on appeal. [16] The respondent acknowledged the documents that were before the judge. Indeed the judge referred to the Form III in hisreasons and, in argument on the substance of the appeal, both parties made direct or indirect reference to its contents. We are of the viewthat the Form III and the banking records should be added to the record on appeal.

As for the document analyzing the bank accounts, itshould not be added to the appellant’s materials because it was not before the first judge and is an unnecessary and tardy addition to theappellant’s written argument on appeal. *** [17] As for the substance of the appeal, it a well-recognized principle that appellate courts owe deference to decisions relating tosupport rendered by trial judges who have had the advantage of hearing the parties first hand.

As the Supreme Court held in Hickey v.Hickey, (SCC), [1999] 2 SCR 518, para. 11: “Our Court has often emphasized the rule that appeal courts should notoverturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless theaward is clearly wrong”. [18] Notwithstanding the principle of deference, the Court’s intervention is required here. With respect for the judge, hemisapprehended the evidence and the applicable principles relevant under s. 15.2 of the Divorce Act so substantially that his decision todeny spousal support was clearly wrong.

His decision to dismiss the claim for support must be set aside. [19] Firstly, the judge neglected to take into account the attempt at reconciliation as an explanation for the appellant’s delay inpetitioning for an increase in support until December 2014. Contrary to what the judge wrote, the delay did not reflect the fact that theappellant did not need a higher alimentary pension.

[20] Second, the judge attributed too much importance to the funds transferred to the appellant by Dr B.. While the judge wasentitled to consider the rental income as part of the appellant’s overall income, even if Dr B. did provide some additional assistance, thiscould not relieve her ex-spouse from his obligation to support the appellant after 21 years of marriage: see in particular Droit de lafamille – 10829, 2010 QCCA 713. [21] At the same time that the judge declared that the appellant was fit to work full-time, he made no mention of the fact that therespondent only works four days a week.

This amounted an unfair evaluation of the circumstances of the two parties on the basis ofdifferent criteria, to the appellant’s disadvantage. In point of fact, according to the logic of the judgment, the respondent’s income-earning capacity should have been in the order of $105,000 per annum. [22] Similarly, the judge failed to consider the respondent’s capital assets in evaluating his capacity to pay support, whereas he tookfull account of the appellant’s assets in measuring her income.

In the case of the respondent, his Form III indicates that he owns asecondary residence in Florida for which he incurs $700 per month in expenses. The judge seemed to think it appropriate that theappellant rent out part of her principal residence to earn income, yet he did not consider the income-earning potential of the Floridaproperty.

Moreover, it is self-evident that the respondent attend to his alimentary responsibilities before taking on the major monthlyexpense of a secondary residence which, given the extent of his professional responsibilities in Montreal, he can only use infrequently. [23] When this income and the respondent’s capital assets are properly taken into account, the judge’s finding that the respondenthas no ability to pay spousal support is clearly wrong. [24] The appellant strongly contested the judge’s finding of fact that she was able to work full-time and refused to do so.

The Courtis, however, bound by this finding: in the absence of a complete transcript of the trial, we cannot say that the judge committed a palpableand overriding error on this point. That said, several observations should be made that do not readily emerge from a reading of the trialjudgement. First, while the judge may have found the appellant’s efforts to find work to be lacking, it is plain that she did make some jobapplications. Second, it is not disputed that she is prepared to work part-time.

Third, it is not disputed that she faced further medicalissues at the time of the trial that would have some impact on her ability to work. Fourth, it is not disputed that she had not worked full-time for a period prior to the marriage breakdown. At 54 years old, it is fair to suppose that her re-entry into the workforce presents achallenge. [25] But even if the finding that the appellant should take on full-time work is accepted, the estimate by the judge of her earningcapacity was mistaken.

As noted, the judge was of the view that the appellant could earn employment income of $40,000 to $50,000.The $40,000 figure does approximate that of the judge’s estimate of her income from all sources and that recorded on her tax return. Itcannot, however, be said that her rental income and interest income are indicators of what the appellant might earn from employment.The judge cited an estimate of her income from 2009 based on Exhibit P-8 (on which she stated her income as within the range from$25,000 to $49,999), used for the purposes of opening a bank account.

This estimate is extremely imprecise and cannot justify thejudge’s conclusion. The respondent’s own testimony indicates that this sum is a poor reflection of the reality at the time since, at therelevant period, the appellant was not even working. [26] In addition to the above-noted errors, the judge committed a further error – that may be characterized as one of principle, withinthe meaning of Hickey – by giving too much emphasis to the objective of self-sufficiency as against the other factors and objectives setforth in s. 15.2 of the Divorce Act.

The Supreme Court has clearly indicated that this can constitute a reviewable error on appeal: Moge v.Moge, (SCC), [1992] 3 SCR 813. The judge should not have limited his analysis to the economic self-sufficiency of theex-spouses but also considered the economic advantages and disadvantages arising from the marriage and its breakdown.

This Court hasbeen steadfast in warning judges against placing an undue emphasis on this factor, especially for spouses who takes steps towardsachieving economic self-sufficiency after a long-term marriage: see Droit de la famille – 1931, (QCCA); Droit de lafamille – 14175, 2014 QCCA 216. These include circumstances justifying a support order having a compensatory and non-compensatorybasis for spousal support, as well as the economic dependency of the appellant, age 54 and with health problems that manifestedthemselves at the end of cohabitation, arising at the breakdown of this 21 year marriage.

The latter consideration required the judge totake into account her age and to give some consideration to her remaining heath issues. The former consideration required him toconsider the evidence that, even if the parties did not have children, the appellant set aside some of her career goals during the marriageto help the appellant rebuild his dental practice. [27] The reasons for judgment in the Superior Court give insufficient consideration to the objectives other than self-sufficiency in s.15.2(6) of the Divorce Act.

Moreover, the judge does not explicitly take into account that the promotion of economic self-sufficiency,under s. 15.2(6)(

d) is tempered by Parliament (“in so far as practicable / dans la mesure du possible” and “within a reasonable period oftime / dans un délai raisonnable”). Again, with respect, we are of the view that this was an error of principle, especially given the age andrecent professional experience of the appellant. [28] Considered together in light of the Hickey standard, the errors in the judgment require that the Court reverse the judge’s decisionto deny spousal support and order an alimentary pension for the appellant. [29] The errors are, in the main, apparent from the judgment itself.

It is true that the record on appeal is incomplete, but the materialsbefore us make plain that intervention by this Court is both required and fair in the circumstances. [30] When one takes into account the income of both parties, their capacity to generate additional income, the number of years ofmarriage and the age and health of the appellant, an amount of $1,000 per month, indexed annually, is reasonable in the circumstances.Considering evidence of the parties needs and means, including the respondent’s Form III and the judge’s findings in respect of theappellant’s ability and willingness to work, this amount, while considerably less than the amount requested, is fair.

It takes into account,in particular, the non-compensatory function of support: see Bracklow v. Bracklow, (SCC), [1999] 1 SCR 420. Wewould add that, even if the circumstances are not the same as those prevailing at the time provisional measures were agreed to, theappellant received $500 per month as well as use of the family residence during this period. This suggests strongly that the respondent isin a position to pay an amount of $1,000 per month.

[ 31 ] FOR THE FOREGOING REASONS , the Court, [ 32 ] ALLOWS the appeal in part, [ 33 ] STRIKES paragraph [85] of the judgment of the Superior Court and replaces it with the following paragraph: [85] ORDERS A. Ha. to pay spousal support to S. H. of $1,000 per month, indexed annually, starting on the date of this judgment, i.e .

November 24, 2015; [ 34 ] CONFIRMS the conclusions of the trial judgment in all other respects; [ 35 ] DISMISSES the motion to adduce new evidence but AUTHORIZES the appellant to file schedules 3, 4, 5, 6, and 7 thereof as part of the record on appeal; [ 36 ] The whole without judicial costs, given the nature of the appeal. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER , J.A. MARIE ST-PIERRE , J.A.