2024 QCCS 118, 2024 QCCS 118

Droit de la famille — 2425 2024 QCCS 118 SUPERIOR COURT PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS N° : 760-12-024461-166 DATE : January 15, 2024 ______________________________________________________________________ IN THE PRESENCE OF: the honourable MARIE-CLAUDE ARMSTRONG, j.s.c. ______________________________________________________________________ D. B. Plaintiff v. Y. E.

Defendant ______________________________________________________________________ judGment on variation of accessory measures [1] WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“C.C.P.”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P.). 1. OVERVIEW [ 1 ] The parties married in 2007, separated in 2016 and were divorced in 2018. [ 2 ] Four children are born from their relationship.

These children are currently aged from 10 to 14 years old. The parties exercise equal parenting time for the four children, on a one week—one week schedule. [ 3 ] As per the Divorce Judgment of 2018, [2] spousal support in the amount of $1,500 net per month was awarded to Plaintiff. The current indexed amount of the net spousal support is now $1,726.75 per month (or $20,721 per year). [ 4 ] In the Divorce Judgment, Justice Dallaire considered that Plaintiff’s financial situation deteriorated following the separation and that she required spousal support.

Early into the marriage, Plaintiff stopped working to care for the family, while, at the same time, accepting transfers in different locations to accommodate and prioritise Defendant’s career, whose professional choices guided the family life. [3] [ 5 ] In December 2020, on an Application by Defendant for variation and review of the accessory measures, Justice Jacob essentially maintained the spousal support awarded in the Divorce judgment.

She dismissed Defendant’s request to cancel it or to impose a fixed term of one year on the payment of the spousal support. [ 6 ] In her reasons, Justice Jacob considered the traditional role of Plaintiff during the marriage, the fact that she was trying to improve her French skills by taking courses but continued to show difficulties to be functional in that language, especially in order to find work in her field of specialization (tourism), also underscoring that Plaintiff had made several applications, without landing any job offer.

It was also considered that the period of the COVID-19 pandemic did not facilitate her attempts to find employment.

[ 7 ] Justice Jacob considered that Plaintiff had enrolled, in September 2020, in a full-time virtual program named “Police Foundations” for a duration of two years and that Plaintiff was anticipating, following its completion, to find a position with an annual salary of about $65,000. Thus, in

summary, in December 2020, it was found that Plaintiff had made serious efforts to eventually secure gainful employment and achieve her financial autonomy, but that it was premature at that time to impose a term to the spousal support. [ 8 ] Justice Jacob ordered Plaintiff to inform Defendant of future details or developments, for example, about school enrollments, job applications, efforts to obtain a position with the [Agency A] and, of course, to inform Defendant should she find gainful employment. [ 9 ] In August 2023, Defendant served Plaintiff with his current Application for variation and review of accessory measures. [ 10 ] Although he had been previously informed that Plaintiff was gainfully employed by [Company A] with a salary of $43,915 per year, Defendant did not institute his recourse earlier, because at the end of December 2022, Plaintiff started reimbursing him various amounts which, by February 11, 2023, had totalled $7,000. [ 11 ] It is in this context that Defendant only introduced his Application in August 2023, asking to cancel Plaintiff’s spousal support retroactively to February 1, 2023, if the Court qualifies the payments of $7,000 made by Plaintiff to be reimbursements for overpaid spousal support, or to cancel it retroactive to September 15, 2022 (date of the beginning of Plaintiff’s employment) should the Court decide the amounts already paid in reimbursement by Plaintiff were for adjustments to the child support. [ 12 ] Plaintiff contests the cancellation of her spousal support.

She pleads that it ought to be maintained without imposing any term, while accepting to reduce it to $700 net per month starting December 1, 2023. [ 13 ] Plaintiff admits having reimbursed Defendant for a total amount of $7,000. However, she represents having made these payments to adjust the child support payable by Defendant, to take into account her work income since September 2022. 2. THE ISSUES TO BE DECIDED [ 14 ] The only issues to be decided by the Court are: 1. Does Defendant continue to have an alimentary obligation towards Plaintiff and, in the affirmative, in what amount and for what period? 2.

If Defendant’s alimentary obligation toward Plaintiff is terminated, determine at what time its cancellation should be effective. 3. ANALYSIS 3.1 The review of Defendant’s alimentary obligation towards Plaintiff [ 15 ]

Article 17. (1) of the Divorce Act [4] allows the Court to vary accessory measures by rescinding a support order, with or without retroactivity, upon application by a spouse. [ 16 ] In accordance with

Article 17. (4.1) of the Divorce Act , for the Court to make a variation order, a change in the condition, means, needs or other circumstances of either former spouse must have occurred since the making of the last variation. [ 17 ] In the present matter, this change is not contested: Plaintiff started working in September 2022 as a station attendant for [Company A]. Her employment was temporarily suspended (or terminated) on January 3, 2023, having been unsuccessful in obtaining a required airside vehicle operator’s permit.

However, she finally obtained the permit and resumed working at [Company A] on March 1, 2023, where she remains employed since. [ 18 ] The parties’ revenues are admitted as follows: Defendant: in 2022 and 2023: $158, 483 per year; Plaintiff: in 2022: $11,192, and in 2023: $50,000. [ 19 ] The objectives established in

Article 17. (7) of the Divorce Act for the variation of a spousal support order are as follows: 17.

(7) A variation order varying a spousal support order should •

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; •

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; •

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and •

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [ 20 ] Applying these factors to the present matter, the Court finds that Plaintiff no longer qualifies as an alimentary creditor. The reasons justifying this decision are the following. [ 21 ] Prior to the marriage, Plaintiff, having obtained a bachelor’s degree in recreation management, was working on a cruise ship to sell excursions.

[ 22 ] Plaintiff did not establish that the role she took during the marriage and that her responsibilities for the children, during the marriage and/or currently, prevent her today from attaining financial autonomy. [ 23 ] Her total monthly expenses have increased from $4,317 in 2020 [5] to $6,387 in 2023, [6] but it was not demonstrated that the increase would be related to consequences of the marriage or its breakdown.

Plaintiff is correct by saying that she continues to suffer a monthly deficit even after having returned to work, but the Court cannot overlook the fact that her expenses have increased as well, and that the proof reveals that her father regularly gives her money that she may employ at her discretion. [ 24 ] Plaintiff’s monthly deficit of $2,270 as per her November 2023 Form III, reduced by the monthly child support of $720.78 payable by Defendant in 2023 [as adjusted by the SARPA], [7] result in a deficit of $1,549,22 per month.

This adjusted deficit does not, however, factor in the children’s benefit payments she receives from both governments, which total $18,831.16 per annum [or $1,569. 27 per month]. [8] Thus, taking into account these benefits, which can be considered when deciding issues of spousal support, it appears that Plaintiff’s budget no longer presents a shortfall. Moreover, the amounts that Plaintiff is gifted by her father, which she already benefitted from at the time of the divorce judgment [although presented in the form of loans at the time], [9] are not considered in this calculation.

Therefore, Plaintiff can enjoy at her own discretion the amounts her father gives her regularly, without having to employ them necessarily to cover expenses indicated in her Form III, because her work income, the child support she receives and the children’s government benefits she also gets, allow her to cover her expenses. [ 25 ] Nevertheless, Plaintiff maintains that she should continue to receive support, and this, mainly for two reasons. [ 26 ] Firstly, Plaintiff represents that no term should be imposed on her spousal support until she has been able to secure a position with the [Agency A], with better wages, work conditions and benefits, including pension rights accumulation in view of her retirement.

Plaintiff has been aiming at that [Agency A] position even prior to the review hearing before Justice Jacob in December 2020. [ 27 ] Secondly, Plaintiff pleads that she should continue to be awarded support to improve her financial situation, considering namely that Plaintiff is 48 years old and Defendant, 40, thus pleading that Defendant has more years ahead of him than she does to plan for retirement. [ 28 ] The Court answers Plaintiff’s arguments as follows. [ 29 ] On one hand, following the divorce, a spouse, in general, should not be expected to submit to severe budget limitations and present a thrifty lifestyle in order to be awarded support. [ 30 ] However, on the other hand, it must also be acknowledged that the responsibility of the other spouse is not to continue to pay support until the alimentary creditor feels financially secure in accordance with the alimentary creditor’s own personal expectations in terms of lodging, retirement savings and other aspects that may be contemplated to feel secure or satisfied about current or future financial needs. [ 31 ] The main objective of spousal support is not to achieve financial security but to allow a spouse to attain financial autonomy. [ 32 ] Spousal support may involve a compensatory component, which compensates a spouse who has suffered economical consequences due to the marriage, for example a spouse whose career was put on hold or suffered a slow down during the marriage or following separation, because of marital or family responsibilities. [10] [ 33 ] It may also entail a non-compensatory component, when the absence of financial autonomy of the spouse results from the breakdown of the marriage.

In such circumstances, the support obligation is based on the fundamental social obligation of the alimentary debtor to provide support. [11] [ 34 ] This Court is of the view that the award of support to Plaintiff as per the Divorce judgment, had the objective of fulfilling both components. [ 35 ] The setting of a term to the spousal support will be justified in presence of concrete considerations rather than based on hypothetical projections. [12] This explains why at the time of the divorce and upon the first spousal support review in December 2020, the court was not prepared to put an end or impose a term to Plaintiff’s spousal support.

At that time, Plaintiff, although not indolent but rather proactive towards that goal, had not yet been able to find employment. [ 36 ] In 2018, Justice Dallaire found that Plaintiff had a sincere intention to return to work, and that she had been proactive following the separation to take reasonable steps to achieve her financial autonomy.

However, given certain factors, such as Plaintiff’s poor skills to work in the French language (the family last domicile was in Quebec and Plaintiff’s networking efforts to find employment had not yet produced concrete results) it was mentioned in the Divorce judgment that the situation was to be revised within a delay of 2.5 years. [13] [ 37 ] At the December 2020 review hearing, Justice Jacob maintained the spousal support order because Plaintiff was not working, having entered a formation program to improve her chances to find employment. [ 38 ] Today, Plaintiff’s situation has evolved favorably.

Her efforts to find work have paid off. She earns about $50,000 gross per year, holding a permanent position at [Company A]. Before, she could only count on spousal support payments of $1,500 net per month (or $18,000 net per year, before indexation). [ 39 ] Plaintiff’s expenses have increased since 2020. Thus, she enjoys a better lifestyle. She does not get into debt. The proof revealed that the balance in her savings account increased and is now at $20,000 (although $8,000 came from an inheritance she received in

2021). [14] [ 40 ] At the time of the Divorce Judgment, Plaintiff was contributing to RESP accounts for the children. Justice Dallaire commented that albeit this expense remained Plaintiff’s decision, it could not be claimed to justify spousal support. [15] Plaintiff has continued to invest into RESP accounts for the children and their accounts now show a total balance of $13,926. [ 41 ] The proof also revealed that Plaintiff will receive at 65 years of age, a monthly pension of $112 from Defendant’s pension plan, resulting from the partition of the family patrimony.

Plaintiff also contributes to her own pension plan at [Company A]. [16] [ 42 ] Given these facts and circumstances, it is now time to terminate the economical relationship between the parties (aside from the alimentary obligation towards the children) by cancelling the spousal support. Defendant, after a marriage that lasted some nine years, has been providing financially for Plaintiff for more than seven years, following their separation in August 2016. [ 43 ] Spousal support is essentially a temporary measure to allow a spouse to attain financial autonomy within a reasonable delay.

This measure is, however, modulated by the compensatory objective of the support. [17] [ 44 ] In the present case, the Court concludes that all relevant factors properly considered, the compensatory and non-compensatory components of the alimentary obligation awarded in virtue of the Divorce judgment have now been satisfied. [ 45 ] Moreover, the examination of Plaintiff’s current situation shows that what she represents to be needs that today should still be, in part, satisfied through spousal support, do not flow from her lack of effort to find employment—she is gainfully employed since September 2022—nor do such needs would be, in whole or in part, a consequence of the marriage or its breakdown.

What Plaintiff intends to achieve with the continuation of the spousal support, is a higher financial security for herself. She suggests that this goal shall be attained when she has obtained a position with the [Agency A]. [ 46 ] This being said, Plaintiff must be given credit for what she has accomplished following the separation in 2016, having deployed sustained efforts to find employment.

She deserves respect and her perseverance in this regard must be acknowledged. [ 47 ] However, given the circumstances of the parties’ marriage, of its end and of each party’s current situation, while Plaintiff has completed steps to find the permanent remunerated position she now holds, the Court finds that the continuation of the spousal support is not the appropriate manner to achieve Plaintiff’s plan for superior financial security.

The facts of this case do not justify it, given the criteria of the Divorce Act . [ 48 ] Plaintiff’s attorney argued that the mere passage of time does not suffice to conclude that spousal support should be cancelled, especially when spousal support was granted on a compensatory basis, herein to account for Plaintiff’s loss of job advancement and loss of future capacity of gain flowing from the marriage. [18] However, this is somewhat besides the point and this, for two reasons. [ 49 ] Firstly, in the present matter, spousal support was awarded for compensatory and non-compensatory reasons.

When reviewing a support order of non-compensatory nature, the Court has discretionary powers it would not have otherwise [19] and the passage of time may at some point create a new situation justifying the termination of the support if, globally, the circumstances warrant such conclusion. [20] [ 50 ] Secondly, the significant change demonstrated herein to apply for spousal support cancellation is that Plaintiff is now gainfully employed, earning about $50,000 per year. [ 51 ] Moreover, when seized of an application to vary accessory measures in virtue of

Article 17 of the Divorce Act , the courts are bound to make the appropriate modification order flowing from the change(

s) demonstrated and should not make a fresh order unrelated to the existing order. [21] Herein, the order of Justice Dallaire at the time of the divorce in 2018 was made to grant spousal support to Plaintiff until she finds employment and Justice’s Jacob’s order of December 2020 maintained it because Plaintiff, in 2020, had undertaken a program with the view of entering the workforce once completed. [ 52 ] Today, Plaintiff has achieved sufficient financial autonomy to justify that the spousal support be cancelled. 3.2 The time at which the cancellation takes effect [ 53 ] To avoid placing Plaintiff in a difficult financial situation, the Court will not cancel the support retroactively.

Defendant’s request to cancel it effective as of September 15, 2022, if granted, would force Plaintiff to reimburse him over $20,000 net, while Defendant’s financial situation would not significantly improve from it, given his personal income and his net worth of $98,400. [22] [ 54 ] And moreover, should a retroactive cancellation had been granted, the Court would have allowed Plaintiff to pay it by installments. [ 55 ] To reach this decision, the Court considered the following elements. [ 56 ] Given the objectives of the Divorce Act regarding spousal support and its variation criteria, in relation to the respective actual circumstances of the parties, this is not a situation where the continuation of the spousal support until the date of the present judgment generates an unfair or unjustified result. [ 57 ] It is not because Plaintiff has found employment that her support must end with her first day at work.

Moreover, there was a two-month period [January and February 2023] during which Plaintiff was not employed by [Company A]. [ 58 ] The Court’s final finding, as per paragraph 52 above, would not be as valid if Plaintiff had to encroach her limited savings to reimburse the required amount of spousal support should its cancellation be made with retroactive effect. [ 59 ] Now turning to Defendant’s subsidiary request for the Court to qualify in spousal support nature, the $7,000 reimbursement

payments that Plaintiff made between the end of December 2022 and mid-February 2023, the Court will not seize itself of the issue. [60] The reason is quite simple. On August 17, 2023, Revenue Quebec rendered an

Avis de décision . It answered a contestation made by Plaintiff, asking to annul a payment demand issued by Revenue Quebec for Plaintiff to reimburse Defendant an amount of $3,886.01 in child support overpayment following a Notice of adjustment of the child support issued by the SARPA on May 23, 2023. This Notice of adjustment came in response to a joint request of the parties, made on March 29, 2023, to adjust the child support. [23] [61] In the

Avis de décision , Revenue Quebec accepted Plaintiff’s position that the $7,000 reimbursement had been made towards overpayments by Defendant in child support. Therefore, Revenue Quebec accepted to cancel its payment demand made upon Plaintiff. [62] It is certainly not appropriate or possible for the Court, without involving Revenue Quebec, to now proceed to a different qualification regarding the nature of these reimbursements.

FOR THESE REASONS, THE COURT: [63] GRANTS in part Defendant’s Application for variation and review of accessory measures dated August 4, 2023, as follows: [64] CANCELS the spousal support payable to Plaintiff, starting on the date of this judgment; [65] THE WHOLE, each party paying its own judicial costs, given the nature of the case. __________________________________ MARIE-CLAUDE ARMSTRONG, J. S. C. Mtre. Stéphanie Jean Devine Schachter Polak Attorney for Plaintiff Mtre. Samuel Boivin Brais et Associés Attorney for Defendant Hearing date: November 29, 2023.