2011 QCCA 828, 2011 QCCA 828

Unofficial English Translation Droit de la famille — 111259 2011 QCCA 828 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-007210-104 (200-04-005557-986) DATE: May 4, 2011 CORAM: THE HONOURABLE LORNE GIROUX, C.A. JEAN BOUCHARD, J.A. JACQUES VIENS, J.A. (AD HOC) L. L. APPELLANT – applicant v. P. H. RESPONDENT - respondent JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on October 27, 2010, by the Superior Court, District of Quebec, (the Honourable Mr.

Justice Paul Corriveau), [1] which determined custody of the parties' child and the child support payments to be paid by the respondent, retroactively to July 1, 2009. [ 2 ] The parties were in a de facto union for two years from 1995 to 1997, after the birth of the child in 1995. A judgment rendered in 1999 established shared custody, which lasted until June of 2009, at which time the child freely chose to live with the appellant. [ 3 ] The respondent has a spouse with whom he has a child who was five and a half years old at the time of the hearing.

As for the appellant, she lives with her spouse in the house she has owned for the last twenty years and has two children from another partner. This former partner makes monthly support payments of about $50 for those two children but does not contribute to their special expenses. [ 4 ] During the ten-year shared custody period, each parent contributed to the needs of the child. When the appellant needed money for such things as school fees, she informed the respondent by telephone and he wrote a cheque for the amount asked of him. [ 5 ] After March of 2009, the respondent saw the child only three or four times.

Since July, however, the child has been coming over for dinner every Thursday. They also play sports together sometimes. [ 6 ] In June of 2010, the appellant filed an application to vary custody and child support. Among other things, she sought full custody and child support payments determined [translation] "pursuant to the child support payment table". She also sought a 15% increase in support because the respondent did not see the child, and for the support to be retroactive to July 1, 2009. [ 7 ] In 2009, the appellant's income was $414,499. That same year, the respondent's income was $637,579.

His income increased by 8.5% as of October 1, 2010. In 2011, however, his income will likely be halved down to $419,195, which is similar to the income of $386,967 he earned in 2008. [ 8 ] The appellant's claim in Superior Court was based on basic needs in the amount of $43,213, as established pursuant to the table in

Schedule II of the Regulation respecting the determination of child support payments . [2] The respondent asked the Court to use its discretion conferred by

section 10 of the Regulation when the disposable income of the parents exceeds $200,000, whereby the Court, "if it considers it appropriate", may determine for that part of the disposable income an amount different from the amount that would be obtained if the table were applied. [ 9 ] The judge deemed that the evidence did not support basic needs for the child in the amount of $43,213 and that there was nothing in fact to justify basic needs in excess of $20,603, the amount set out in the table where both parents have incomes of $200,000. [ 10 ] He consequently determined the support payable by the respondent on the basis of this number and made it retroactive to July 1, 2009.

He refused to award the 15% increase sought by the appellant, which she had claimed because the respondent did not exercise his access rights. He also set the amounts to be paid by the respondent for special expenses in 2009 and 2010 and declared that the

respondent would not be subject to the support payment collection program established by the Act to facilitate the payment of support.[3] [11] The appellant appeals. [12] First, she impugns the judge's decision to deviate from the amount calculated on the basis of the parents' income according tothe table. According to the Supreme Court[4] and Quebec case law,[5] the amount determined by the table is presumed to be accurateand the debtor may deviate from it only by presenting "clear and compelling"[6] evidence.

The appellant criticizes the trial judge forplacing on her the onus of proving that the table amounts represented the actual cost of the child-related expenses, when it should havebeen up to the debtor to establish that they did not. [13] This ground must fail. At the hearing, the appellant filed detailed documents: an expense budget for the basic needs of the child(P-1), an account of the special expenses (P-2), and a comparison of the expenses incurred and Statistics Canada estimates (P-3).

For hispart, the respondent did not file a written budget, but he did testify as to the costs he incurred for the child's needs in the context of sharedcustody. [14] Since the appellant chose to adduce a detailed budget, the judge could validly take it into account when exercising thediscretion conferred upon him by

section 10 of the Regulation. Based on this evidence, the judge did not place a burden of proof on theappellant that was not hers to bear. [15] Also, before us is a question of assessment of the burden of proof, not the attribution thereof. As Monet J.A., of this Court,wrote: [translation] Once the judge's conclusion is established one way or another, it is irrelevant which of the parties had the burden of proving it....

Fromthe moment the judge has sufficient elements to be convinced, the uncertainty that is the very raison d’être of the consideration of theburden of proof no longer exists.[7] [16] Also, in Baker, even the Supreme Court recognized that the party bearing the onus regarding the application of the table doesnot have to present evidence and that what counts is that the evidence as a whole is sufficient to cast doubt on the amounts provided inthe table: The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount totestify or call evidence.

No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a party may not beable to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question the evidence of theopposing party. Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Tableamount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, (BC SC), [1997] B.C.J.

No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guidelinefigures.[8] [17] The appellant then argues that the judge erred in finding that the respondent had demonstrated that the child's lifestyle did notjustify the needs submitted and in entirely dismissing the mother’s cost assessment for lodging and recreation, amongst other things. Bydoing so, he favoured a minimalist approach to a lifestyle that the child no longer has with the father and that he never had with themother. [18] In Francis v.

Baker, the Supreme Court acknowledges that in cases where the annual income of the debtor parent exceeds themaximum income provided in the table, the trial judge has the discretion to increase or decrease the amount of child support prescribedby a strict application of the guidelines.[9] This discretion is all the more justified because, generally, in matters involving support, thetrial judge is called on to make a factual and discretionary decision and, for this reason, an appellate court must show great deferencewhen asked to review such a decision.[10] [19] Consequently, the Court may reverse such a decision only if the reasons disclose an error in principle, a significantmisapprehension of the evidence, or unless the award is clearly wrong.[11] [20] In this case, the trial judge had at his disposal a detailed, thirteen-page budget for the child's needs, which he analyzed.

Hefound that the evidence did not support the amount calculated by the appellant for the basic needs of the child, setting aside, inter alia,the cost of gas, upkeep, and depreciation tied to the use of a motor boat, two snowmobiles and one jet ski, as well as a share in theirpurchase prices. [21] He also found that the expenses in the budget concerning accommodation should not be taken into account when determiningthe basic needs of the child.[12] In Baker, the Supreme Court explicitly recognizes the trial judge's duty to take into account "anyobvious duplication of expenses or other readily apparent anomalies".[13] [22] Finally, in addition to the expense budget, the judge considered all the circumstances of the case, as suggested by the SupremeCourt, including the age and situation of the child, his health, his travel habits, the conduct of the parties during the ten years they sharedcustody, and their incomes.

From all these circumstances, he concluded that the amount provided in the guidelines was much greaterthan the child's needs that it [translation] "would constitute an indirect financial benefit to the mother".[14] This is the other factor set outby the Supreme Court for a judge to exercise his or her discretion.[15] [23] The judge did accept over $6000 in special expenses claimed by the appellant to which the respondent must contributeaccording to the parties' respective incomes. [24] In this case, it is a question of assessment of the evidence.

Absent the appellant demonstrating an error of law or a palpable errorin the judge's assessment, the mere fact that that the Court might balance the factors differently or render a different decision does not

justify the intervention of this Court. [16] [ 25 ] The appellant rightly criticizes the judge, however, for exempting the respondent from the application of the Act to facilitate the payment of support . [17] These provisions are of public order [18] and the only possible exemptions are those found in

section 3. The Court may exempt the debtor of support only where he or she establishes a trust guaranteeing the payment of support or where the parties make a joint application, and even in the latter case, the court must be satisfied that the parties have given free and enlightened consent and the debtor must furnish security. These conditions not being present in this case, the judgment cannot stand on this specific question. FOR THESE REASONS, THE COURT: [ 26 ] ALLOWS the appeal in part only to: 1) strike paragraph [147] of the trial judgment, which is worded as follows: [147] DECLARE that P.

H. will not be subject to support payment collection; 2) and add the following new paragraph [147.1]: [147.1] ORDERS P. H. to pay directly to L. L. the amounts set out in the present judgment until such time as the collector of support payments has assumed collection; [ 27 ] Without costs. LORNE GIROUX, C.A. JEAN BOUCHARD, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Jacques Landry Quessy Henry St-Hilaire For the appellant Mtre Marie-Josée Brodeur Brodeur Prémont Lavoie For the respondent Date of hearing: April 6, 2011