2024 QCCS 360, 2024 QCCS 360

Droit de la famille — 24127 2024 QCCS 360 SUPERIOR COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No.: 500-12-358542-235 DATE: February 2, 2024 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE J. SÉBASTIEN VAILLANCOURT, J.S.C. ______________________________________________________________________ S. F. Plaintiff vs. O. Y.

Defendant ______________________________________________________________________ SAFEGUARD ORDER TO BE VALID UNTIL APRIL 11, 2024 ______________________________________________________________________ [ 1 ] The parties were married on March 23, 1997, and have two children, X, 24, and Y, 20. [ 2 ] The parties ceased to live together in 2021, but it was not until October 2023 that the Plaintiff filed for divorce. [ 3 ] The Plaintiff's application for safeguard orders was initially presentable on November 20, 2023, at which time it was, however, continued sine die .

The Court understands that the parties then negotiated to try to settle. [ 4 ] In fact, an interim consent agreement was signed by the parties and their lawyers on November 30, 2023. This consent, which has so far never been homologated by the Court, provides, inter alia , as follows:

a) The exclusive use of the parties' former family residence is granted to the Plaintiff, while the secondary residence’s is granted to the Defendant;

b) The Defendant undertakes to continue to provide for all the needs of the two adult children, including special fees and school fees;

c) The Defendant agrees to continue to pay expenses related to the family residence and secondary residence directly to creditors or suppliers, as well as to assume the expenses and payments of all motor vehicles used and/or registered in the name of the Plaintiff and the children, including insurance premiums, storage, maintenance and registration costs;

d) In addition to the foregoing expenses, the Defendant agrees to transfer to the Plaintiff sufficient amounts to cover mortgage and line of credit payments in respect of the secondary residence, the rent of the Plaintiff's Range Rover Sport vehicle and the payment of the child Y’s Ford Bronco;

e) The Defendant agrees to pay the Plaintiff, on or about December 15, 2023, an advance of $25,000 to be qualified at a later date as well as a lump sum of $15,000 payable on January 15, 2024;

f) This consent agreement also provides that a party that makes a withdrawal from the joint parties line of credit will be solely responsible for that debt. [ 5 ] In her application for safeguard order, the Plaintiff seeks homologation of this interim consent, payment by the Defendant of $19,709.05 representing her credit card balance, support for herself in the amount of $25,000 per month, exclusive use of a 2023 Porsche and a 2021 Range Rover, and a provision for costs of $50,000. She does not ask for child support because the Defendant offers to continue to provide for the full needs of both children.

She also requests that the Defendant be ordered not to discuss the proceedings with the children. [ 6 ] On his part, the Defendant is seeking reimbursement of $227,000 that the Plaintiff allegedly appropriated without right and the return of a 2022 Porsche vehicle. He also asks for permission to enter the family residence to retrieve certain personal belongings. [ 7 ] Finally, as a management order, the Plaintiff asks the Court to order the Defendant to provide a series of financial documents

covering the period from January 1, 2018 to the present. SAFEGUARD ORDER [ 8 ] It is well known that at the safeguard order stage, when the evidence is incomplete, the Court must attempt to maintain the status quo between the parties unless there is an urgent need to change it. [ 9 ] In this case, the Plaintiff has not worked for some twenty years, and the Defendant has assumed, alone, all the family's needs.

It is obvious that the family's standard of living was very high, although the evidence does not allow to determine precisely their lifestyle. [ 10 ] The Plaintiff has no income, as she does not work, while the Defendant reports employment income of approximately $150,000 per year, interest/dividends of $11,500 per year, and cash income of $38,000 per year. [ 11 ] The Defendant is a plastic surgeon, and the Plaintiff argues vigorously that he earns much higher incomes than he declares.

She testified in her sworn statement that he earns a lot of cash, and she submits several photographs depicting wads of banknotes. [ 12 ] The Defendant admits that he earns cash income but denies that he earns as much as Plaintiff contends. He adds that the family has long lived beyond their means, and that he even had to go bankrupt a little over 10 years ago. [ 13 ] He submits that while he is prepared to bear alone the expenses of the children and the family home and the secondary residence, the Plaintiff’s claim for support of $25,000 per month is grossly exaggerated.

As for the Plaintiff’s request for provision for costs of $50,000, he finds it equally exaggerated and adds that he cannot afford to pay it while he is struggling to pay his own lawyer's fees. [ 14 ] First, paragraphs 2 to 5 of the interim consent signed by the parties should be homologated retroactively to the date of its signature.

The ratification of these provisions allows the status quo to be maintained. [ 15 ] Paragraph 8, which provides that if a party makes withdrawals from the line of credit, he or she alone will be liable for the debt thus created, should also be homologated (also retroactively). [ 16 ] However, the Defendant should not be prohibited from using this line of credit to perform obligations under this order, as requested by the Plaintiff, given that at this stage of the proceedings, the financial situation of the parties (and especially the Defendant’s exact income) is not clear.

If Defendant does, in fact, use the line of credit to perform his obligations, the Court hearing the provisional measures or the merits will be in a better position to determine each party’s responsibility in this regard. [ 17 ] The Plaintiff is seeking spousal support in the amount of $25,000 per month.

Her counsel conceded at the hearing that, however, the expenses paid for by the Defendant (including expenses relating to the family residence and secondary residence) should be deducted from the expenses indicated on her Form III, which totalled $40,000 per month. [ 18 ] The Defendant, on the other hand, argues that the Plaintiff's expenses are grossly exaggerated.

He offers to pay spousal support in the amount of $5,000 a month, arguing that his income, which he expects to decrease, would not allow him to pay more. [ 19 ] It should be noted that the support payable for the Plaintiff is taxable for her and deductible for the Defendant. In addition, since all expenses related to the housing and motor vehicles used by the Plaintiff as well as the needs of the children will be borne by the Defendant, the amount of the Plaintiff's actual and immediate expenses is significantly reduced.

On the other hand, and since the status quo should be maintained, if possible, she is entitled to a high standard of living. [ 20 ] The Court finds that many of the Plaintiff's expenses should be reduced either because they are exaggerated or non-imminent (e.g. $6,000 per month for clothing, $4,000 per month for hair and beauty care, $2,000 per month for gas while she is not working, $5,000 per month for vacation and $25,000 per year for savings). [ 21 ] Upon review, the Court evaluates Plaintiff’s current and immediate expenses at $8,800 per month, before taxes.

However, it is necessary to consider the Defendant's ability to pay, which is not entirely clear at this stage. [ 22 ] In these circumstances, the Court finds that spousal support of $10,000 per month (gross) is reasonable at this stage of the proceedings. [ 23 ] The Plaintiff asks that the Defendant be ordered to pay the balance of $19,709.05 on her credit card. She alleges that it is the result of Defendant’s unilateral decision to reduce his financial support.

Considering the amounts paid to Plaintiff as per the interim agreement ($25,000 plus $15,000), this claim is not urgent. [ 24 ] The Plaintiff asks to be granted the use of the Porsche vehicle (there appears to be confusion between the parties as to the year of the vehicle, with the Defendant indicating that it is 2022 while the Plaintiff indicates that it is 2023) and the 2021 Range Rover vehicle. [ 25 ] The Defendant, however, asks to be allowed to recover the Porsche vehicle in order to be able to terminate the lease. [ 26 ] The evidence does not show that there is an urgent need to change the status quo and remove from Plaintiff the Porsche vehicle.

Her application is therefore granted, and Defendant’s is dismissed. [ 27 ] The Plaintiff is seeking, at the interim stage, a provision for costs of $50,000. She submits that she currently owes $38,000 to her lawyers and expects to have to incur significant professional fees as she heads into what promises to be a hotly contested debate over the determination of the Defendant's income.

[ 28 ] The Defendant disputes the Plaintiff's allegations that he has access to significant liquidities. He states that he has difficulty paying his own lawyer's fees and is therefore unable to pay the provision for costs. [ 29 ] The criteria for granting a provision for costs are well-known. In addition to the financial situation of the parties, their conduct must be considered. In the case at hand, it is clear that there is a significant disparity between the financial situation of each of the parties, if only because Plaintiff has no income.

The importance of the liquidities of the parties is also the subject of fierce dispute. Although the Plaintiff has some, the Court finds that she nevertheless needs a provision for costs in order for her to assert her rights with respect to spousal support. [ 30 ] Although the evidence is incomplete at this stage, the Court further finds that the Defendant has the capacity to pay a provision for costs to the Plaintiff. [ 31 ] However, with that in mind, is there an urgency to warrant a provision for costs at this time? The Court is of the view that it is.

Indeed, and without presuming the eventual decision as to the Defendant's exact financial situation, the Plaintiff is entitled to make its case at the provisional measures stage and must be able to do so. At present, there appears to be a great deal of unevenness between the parties in terms of their ability to assert their rights. [ 32 ] However, the sum of $50,000 claimed by the Plaintiff at the interim stage is not justified.

The Court is aware that she owes her lawyers $38,000, but that does not justify the granting of a provision for costs of this importance at this stage. [ 33 ] In these circumstances, the Court finds that a provision for costs of $22,500 payable in three monthly instalments of $7,500 commencing February 15, 2024, is reasonable. [ 34 ] The Defendant seeks permission to enter the family residence to retrieve his personal belongings, including clothing, sports equipment, "papiers personnels " and "le contenu de son bureau", some furniture, works of art and car parts. [ 35 ] The Defendant further submits that the management measure sought by the Plaintiff to obtain financial disclose should not be granted until he has been able to retrieve his records. [ 36 ] The Court is far from convinced that the Defendant's claim is urgent when he himself alleges that this situation has prevailed for more than two years.

However, it is true that a number of the documents requested by the Plaintiff may conceivably be found at the family residence. Moreover, the Plaintiff's argument that he can obtain the requested documents from financial institutions cannot be accepted in its entirety since her request is much broader than bank or credit card statements alone. [ 37 ] As a result, the Defendant's claim is granted, but only in part. He is only allowed to retrieve his personal documents and papers. [ 38 ] The Defendant claims $227,000 which the Plaintiff allegedly misappropriated.

On the one hand, the evidence, at this stage of the proceedings, does not support the conclusion that this claim is justified. On the other hand, there is no urgency in this regard. This application is therefore dismissed.

Management measures [ 39 ] The Plaintiff is asking the Defendant to provide her with a series of financial documents including her bank and credit card statements, loan agreements, invoices for the purchase of art, boats and jewellery, proof of ownership of any vehicle since 2018, statements of account relating to any safety deposit box and insurance policies. [ 40 ] The Plaintiff justifies her claim by her desire to demonstrate the Defendant's true financial situation and she explains the period covered by the fact that she wishes to go back three years before the end of the cohabitation. [ 41 ] On the one hand, as far as the nature of the documents is concerned, this request should be granted given the issues in dispute (mainly – but not only – the exact financial situation of Defendant). [ 42 ] On the other hand, the period in question is not fully justified.

The Court understands that the Plaintiff wants to be able to review the details of the Defendant's financial transactions and it is legitimate for her to want access to a period prior to separation. However, it is not appropriate to allow her access to a period prior to two years before the separation, i.e. the month of August 2019. [ 43 ] In these circumstances, the Defendant will have to provide the requested documents but only as of August 2019.

In addition, he shall provide these documents within 30 days of the date on which he will retrieve his documents from the family residence or, at the latest, by April 2, 2024. In addition, the Defendant will be required to provide a sworn statement explaining why he is unable to provide either document.

FOR THESE REASONS, THE COURT: [ 44 ] PROHIBITS the parties from discussing the divorce proceedings with the children; [ 45 ] ORDERS the Defendant to pay spousal support of $10,000 per month to the Plaintiff, commencing this day; [ 46 ] HOMOLOGATES paragraphs 2 to 5 and 8 of the Interim Consent Agreement signed by the Parties on November 30, 2023, retroactive to November 30, 2023; [ 47 ] ORDERS the parties to abide by it;

[ 48 ] GRANTS to Plaintiff the exclusive use of the 2022 or 2023 Porsche (given the conflicting evidence) and 2021 Range Rover vehicles; [ 49 ] ORDERS the Defendant to pay to the Plaintiff a provision for costs in the amount of $22,500 payable as follows: a) $7,500 payable on February 15, 2024; b) $7,500 payable on March 15, 2024; c) $7,500 payable on April 15, 2024; [ 50 ] AUTHORIZES the Defendant to access the family residence, with at least one week's notice, to retrieve his personal documents and papers; [ 51 ] DENIES , on an interim stage, the Defendant's claim for $227,000; [ 52 ] ORDERS the Defendant to provide, within 30 days of the date on which he retrieves his personal documents and papers from the family residence or April 2, 2024, whichever comes first, the documents listed in paragraph 12 of the Plaintiff's application dated November 28, 2023 but only for the period commencing on August 1, 2019; [ 53 ] ORDERS the Defendant to provide a sworn statement explaining why he is unable to provide any of the documents; [ 54 ] THE WHOLE to be valid until April 11, 2024, date on which the applications are postponed in room 2.17; [ 55 ] Without legal costs. __________________________________ J.

SÉBASTIEN VAILLANCOURT, j.S.C. Me Carly Flam ROBINSON SHEPPARD SHAPIRO SENCRL Lawyer for the Plaintiff Me Luce Gayrard GAYRARD AVOCATS Lawyer for the Defendant Hearing date : February 1, 2024