2024 QCCS 153, 2024 QCCS 153

Droit de la famille — 2439 2024 QCCS 153 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-12-355313-226 DATE: 11 JANUARY 2024 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE BABAK BARIN, J.S.C. ______________________________________________________________________ A. A. Applicant v. p. D.

Defendant ______________________________________________________________________ JUDGMENT ON CERTAIN PROVISIONAL MEASURES RELATING TO CHILD AND SPOUSAL SUPPORT ______________________________________________________________________ INTRODUCTION [ 1 ] The application for divorce in this case was filed on 26 October 2022.

Since then, the parties have appeared before the Superior Court on numerous occasions for a variety of issues. [ 2 ] This two-day hearing was fixed without any minutes and in the absence of a case-management protocol and a hearing timetable following an unsuccessful CRA in the summer of 2023. [ 3 ] Despite the above, because all arrangements for the taking place of the hearing had already been put in place when the file was assigned to me, and the parties were ready to proceed with the hearing, I agreed to hear them on the discrete issues of Monsieur’s, according to Madame unusually low, income of 2023 and Monsieur’s request for a revision of child and spousal support ordered by Marie-Hélène Dubé, j.s.c. on 1 December of 2022. [ 4 ] At that time, Justice Dubé determined Monsieur’s income for 2022 to be $210,000 (comprised principally of approximatively $140,000 of employment income and $47,500 of temporary disability payments) and Madame’s income to be nil.

She also, among other things, ordered that Monsieur pay monthly child support in the amount of $1,960.50 including special expenses of $13,473 annually and spousal support in the amount of $4,500 monthly, beginning on 1 December 2022. [ 5 ] At the specific request of the parties, in this decision I will only determine, on a provisional measures’ basis, the income of Monsieur and the income of Madame for 2023 (and the corresponding child support payable for that year) and spousal support for Madame for that same year. [ 6 ] The parties will then have to use and rely upon the corresponding figures for the future, including as they explicitly agreed upon before me, to address the issues of past and future special expenses.

In any event, the attached Annex I for the year 2023 sets out the contribution proportions (Monsieur 79% and Madame 21%) for the parties. [ 7 ] In the interim, the parties agree that the outstanding crystalized amount unpaid by Monsieur in 2023, subject of course to any adjustments to be made for revised income, special expenses, and other matters, if applicable, that will in part be determined in this judgment, is $39,247.36. They also agree to make the necessary adjustments to this last amount without any further intervention of the Superior Court.

BACKGROUND [ 8 ] The parties, both in their mid-forties, met in 2005, were married in 2007 and following a short period of nesting between the months of July and October, they were separated in 2022. They are the parents of two children, X, aged 14 and Y, aged 11. X unfortunately has an eating disorder, is presently in the hospital and may be imminently placed in a foster home. [ 9 ] Monsieur is an experienced financial planner with [Bank A] having began his career with that institution in 2005.

He has been part of the same team working out of the branch A of the bank, where the parties resided during marriage and continue to reside, since approximately 2014. [ 10 ] Between 1996 and 2013, Monsieur was part of the army reserve, and he has recently applied to be a member of the [Police Service A] but has not heard back.

He is potentially interested in pursuing a career change if such an opportunity presents itself. [ 11 ] Monsieur points to the advent of COVID-19, the recent unexpected changes in economy and the corresponding financial market difficulties as well as the break down of his marriage as justifications for a need for revision of Justice Dubé’s decision.

[ 12 ] Between the years 2014 and 2022, Monsieur consistently earned more than $200,000 annually and he was the main breadwinner of the family.

Monsieur’s employment income in 2023 – the principal point of contention between the parties – was roughly $99,000. [ 13 ] Madame too had an active professional life working in varying capacities including benefits’ administrator, human resource manager and executive assistant, recently. [ 14 ] Over the years 2014 to the present, Madame worked full-time, benefited from two maternity leaves, worked part-time when she was diagnosed in 2016 with an auto-immune illness, home schooled the children during the crisis months of COVID-19 and shortly thereafter (and although presently on a brief medical leave), she is employed – and that, much to her credit – as an executive assistant with an expected annual salary of $57,000. [ 15 ] During the course of 2014 to 2022 and based on her lawyer’s Table of family income, Madame earned around $30,000 annually – during the early years she earned a bit more, between 2019 and 2020 she earned slightly less and during the year 2021 and 2022, Madame earned significantly less.

As a child and young adult, Madame was apparently raised in a comfortable family home with her parents, who had and continue to have the means to assist her if necessary. [ 16 ] The parties owned a family residence that was sold in the summer of 2023, leaving them net proceeds of approximately $300,000 each.

They still, among other things, own a chalet in the Town A near Town B that is valued at around $600,000 with a mortgage of approximately $100,000, which they rent as often as possible with frequently yearly generating losses after expenses paid, and they each own certain personal investments and a car. [ 17 ] Madame’s share of the proceeds of the sale of the family residence were paid to her and she has used and continues to use portions of it to pay for legal fees totalling, thus far, more than a $100,000. [ 18 ] The portion of the proceeds of the sale of the family residence belonging to Monsieur were seized before judgement by an order of Gregory Moore, j.s.c. on 21 June 2023.

They remain in the custody of Me Teodora Alexandra Muntean, Notary. CONTEXT [ 19 ] Monsieur requests that his income for the year 2023 and going forward be adjusted to his actual revenue of $99,000, that child support for that year be adjusted accordingly and that he be permitted not to pay spousal support until such time as his financial situation permits. [ 20 ] Alternatively, Monsieur proposes that spousal support in the amount of roughly $270 per month (based on an annual income of $99,000) be paid according to the Advisory Guidelines.

He indicates that he is unable to pay more. [ 21 ] Monsieur adds that he is simply unable to generate the same income he was able to in the past, because of the current economic climate – People invest more conservatively preferring GICs over mutual funds, which in turn result in lower commissions for financial planners – because of more competition at work – the addition of other financial advisors annually – and because he was obliged to take three months away from work following the separation with Madame in 2022. [ 22 ] According to Monsieur, there are apparently new people at the bank since his brief departure with whom he no longer shares the same level of affinity, and these new individuals have their own list of referrals and alliances at the bank that account for about 20 to 25 % of the bank’s internal business for its financial planners. [ 23 ] In support of his position, Monsieur presents the testimony of his supervisor and team leader at the bank, who explains that Monsieur’s mindset is not the same as it was before, that he is not performing and is not motivated like he used to be and, in any event, market conditions are not helping him perform to same level he did before. [ 24 ] According to Mr.

N. Di., [Bank A] Regional Manager for investment and retirement planning, Monsieur’s income is 100% commission-based, there is no guaranteed base salary and an employee’s best performance is really his “last best performance”. Mr.

Di. adds that he does not think that Monsieur’s situation will improve in the short-term. [ 25 ] Madame is of the view that Monsieur is intentionally underperforming, that he is capable of generating more income – certainly more than $200,000 – and that the amount of $227, 598, which represents an average income figure for Monsieur for the years 2014 to present should be imputed to him. [ 26 ] She also argues that her spousal support should be increased, or alternatively maintained at exactly what it is currently in order to preserve the parties’ positions as they were before during the marriage. [ 27 ] In the event that an income for the year 2023 is to be attributed to her, Madame also suggests that her 9-year average revenue of approximatively $32,000 should be used.

Among other things, she argues that the chalet owned by the parties is run by Monsieur, who solely benefits from the cash amounts that renters pay and that he does not always share all of the information about the renters, rentals and expenditures for the chalet with her. [ 28 ] As indicated to the parties at the hearing, and with their consent, given that the chalet is jointly owned by the parties and that they could have in the past and can still both take

part in its rental and management activities, I do not plan to at this stage consider the impact of any revenue or losses generated by the chalet for the purpose of Madame’s Application seeking provisional measures and a safeguard order dated 26 October 2022 and Monsieur’s Application for provisional measures dated 21 December 2023. ANALYSIS [ 29 ] For reasons that were orally provided to the parties during the hearing following the presentation of proof, their testimonies, the

review of more than 7 binders of exhibits with more than 70 exhibits filed on behalf of Madame and 15 exhibits filed on behalf of Monsieur, a book of proceedings with 42 exhibits and multitudes of

Schedule I and Form III calculations, I am of the view that Monsieur’s income for 2023 should be $150,000 and Madame’s income should be $50,000. [ 30 ] Based on the overall evidence presented, including a Table of family income which sets out the revenue generated by the parties during their years together, I am of the view that at this stage, the above indicated amounts are justifiable. I say this for principally two reasons. [ 31 ] First, the parties are parents of two children who are financially dependent on them.

Given X’s current situation, in particular, she should not be placed in a position where she would have to worry about finances, especially those of her parents regarding which she never had and does not have any control.

The same applies to Y. [ 32 ] Second, both Madame and Monsieur have demonstrated in the past and continue to demonstrate the capacity, potential, know- how and ability to generate the above amounts with reasonable effort and motivation. [ 33 ] Consequently, and given that the parties benefit from equal parenting time with the two children, the amount of child support for the year 2023 shall be $ 455.58 as both calculated and confirmed by the parties during the hearing.

This amount is also confirmed in a corresponding Annex I, attached. [ 34 ] This brings me to the issue of spousal support. [ 35 ] Among the factors that the court must take into consideration in the granting of any such support are the beneficiary spouse’s financial resources, the duration of marriage – here 15 years – the roles of the spouses during the marriage, the financial situation of each spouse and any prior court decisions or agreements between the parties. [ 36 ] Here, given Monsieur’s role as the main breadwinner of the family, the fact that with some additional effort and motivation, he is able to, as he has demonstrated in the past, reach the income now attributed to him, the fact that Madame has taken the initiative to seek employment and soon full-time employment, the parties’ needs and expenses as set out in their various Forms III and Schedules I, and the Advisory Guidelines for spousal support, I am of the view that spousal support in the amount of $2,500 per month for the benefit of Madame for the year 2023 is, at this stage, in order. [ 37 ] This amount granted in the discretion of the Superior Court, takes into consideration the financial resources available to the parties, the relative fiscal impact on each of them, the duration of their union and their respective needs and expectations.

It also of course differs from the amount ordered by Justice Dubé in December of 2022, because it more closely reflects the current realities of their respective lives and the difficulties they are both facing. [ 38 ] The parties are no longer living together, Monsieur is no longer making the same income he did in the past and the parties can no longer benefit from the same lifestyle they did in the past. [ 39 ] This last point should be taken note of, particularly, by Madame given the amounts identified in her monthly expenses for, among other things, home rental ($2,900) and other needs.

A similar remark in this regard was made by Justice Dubé when she heard the parties at the end of 2022. The same comments of course apply with equal force to Monsieur. [ 40 ] The parties are also reminded that they have to date expended a significant amount of their financial resources on legal fees.

Should they take the time and pause necessary in such circumstances to consider the predicaments in which they find themselves in due to their conflict, they will no doubt conclude that communication and a certain amount of confidence in one another will allow for a more expeditious and cost-effective resolution of their differences.

FOR THESE REASONS, THE COURT: ORDERS the Defendant to pay to the Applicant for the benefit of the two children, X and Y, child support in the amount of $455.58 per month commencing on 1 January 2023; ORDERS the Defendant to pay to the Applicant for her own benefit, spousal support in the amount of $2,500 per month commencing on 1 January 2023; ORDERS, with the consent of the parties, that exhibits D-9 and D-9 (

A) shall be placed under seal and thereafter withdrawn by the Defendant upon the conclusion of the divorce proceedings in this file; EXTENDS the deadline for the parties to make ready and set down this matter for trial retroactively from 27 October 2023 to 29 April 2024; HOMOLOGATES the written agreement between the parties dated 10 January 2024, allowing Me Teodora Alexandra Muntean, Notary, to immediately release the sum of $50,000 held in trust for payment to Dunton Rainville s.e.n.c.r.l., for legal fees; PERMITS the Notary, Me Teodora Alexandra Muntean to release the above-said sums to Dunton Rainville s.e.n.c.r.l.; WITHOUT LEGAL COSTS given the nature of the litigation between parties.

__________________________________ HONOURABLE BABAK BARIN, J.S.C. Me Emmanuelle Mekies Benhamron Devichy Avocats Inc. Attorney for the Plaintiff Me Julie Grant Dunton Rainville LLP Attorney for the Defendant Hearing dates: 9 and 10 January 2024