2012 QCCA 1144, 2012 QCCA 1144

Unofficial English Translation Droit de la famille — 121521 2012 QCCA 1144 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos. 500-09-022398-127 500-12-238865-970 DATE: June 18, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A. CLÉMENT GASCON, J.A. R. R. APPELLANT – Defendant v. S. L. RESPONDENT – Plaintiff JUDGMENT [ 1 ] Dissatisfied with the variation order issued on January 16, 2012, by the Superior Court, District of Montreal (the Honourable Madam Justice Francine Nantel) pursuant to section 17(4.1) of the Divorce Act , [1] R. R. appeals.

The order to which she objects dismissed her request to increase her support, but granted the request of her former spouse, the respondent, S. L., to set a term for the said support. [ 2 ] The appellant has also filed an application for leave to introduce new evidence. The main purpose of that application is to add medical evidence that, for the most part, existed at the time of the trial, and also to file correspondence related to an issue stemming from the retroactivity of the order issued. [ 3 ] The appeal ultimately raises two questions.

The first is whether there is a palpable and overriding error in the trial judge’s finding of fact that the appellant’s financial needs are properly met. The second is the advisability of setting a definitive term for the support that the respondent has paid her since 1997, i.e. for a period exceeding the marriage, which lasted about 15 years, and the couple’s relationship, which lasted fewer than 14 years.

[ 4 ] For the reasons that follow, we find that intervention is not warranted. [ 5 ] First, the alleged palpable and overriding error was not established. The trial judge correctly applied the recent teachings of the Supreme Court [2] in matters of variation orders rendered under the Divorce Act . [ 6 ] Second, the judge ruled that, because of the appellant’s new sources of income, the value of her assets and her personal choices, setting a term for the payment of her support was justified. That opinion is solidly based on the evidence.

It is the appropriate response to the circumstances of the case, which establish that the economic disadvantages or hardship that may still remain for the appellant are not the result of the marriage or of its breakdown.

The response is justified in a context where the appellant seems blind to the objective of achieving economic self-sufficiency, despite the warnings given in previous judgments. [ 7 ] That said, the incongruity between the order not to index the support and the retroactivity of that order requires a slight adjustment, with which the respondent in fact agrees, to the conclusions of the trial judgment. CONTEXT [ 8 ] The appellant and the respondent were married in January of 1984. She was 38 years old at the time while he was 21. They separated in July of 1997. They had no children.

The respondent was an airline pilot at the time. The appellant described herself as an artist. She did not work. [ 9 ] From the moment the couple separated in July of 1997, the respondent paid the appellant $300 a week in support. The divorce decree followed in November of 1999. It was rendered by default in the appellant’s absence; she was in the hospital, but Morneau J. refused her counsel’s application for a postponement. [ 10 ] Of significance is the fact that the divorce decree included no support order as such.

It did not ratify an agreement on corollary relief signed by both parties, or order anyone to comply with anything. It was limited to acknowledging for the respondent his offers set forth in a consent, it appears, that was signed solely by him at the time. [ 11 ] It acknowledged for the respondent his offer to pay the appellant support of $400 a week. It also acknowledged his offer to transfer to the appellant his share of the family residence, located in City A, along with all the furniture in it, without consideration. At the time, that was the respondent’s sole asset.

He essentially assigned everything to the appellant. [ 12 ] Lastly, given the appellant’s absence, the divorce judgment reserved her rights regarding corollary relief. [ 13 ] Over the years, the parties clashed in court several times. [ 14 ] On July 26, 2002, Fraiberg J. rendered a detailed judgment on a motion by the respondent to cancel the support he had been paying since the divorce and a motion by the appellant to increase the amount of support. The judgment and its conclusions are lengthy.

The judge set the support that the respondent had to pay at about $1800 a month, ending on September 30, 2010, the date on which the appellant would turn 65. He dismissed the appellant’s request for a provision for costs. [ 15 ] In his judgment, Fraiberg J. stressed, inter alia, that during the 13 years the couple lived together, the appellant had no child- rearing responsibilities, had no particular household role and did not contribute to the respondent’s career advancement. He noted that, during the marriage, the appellant basically did what she wanted.

She wrote, painted, travelled and lived in a beautiful home. It should be borne in mind that the respondent had some family money that allowed the couple to have a comfortable lifestyle, although it was not luxurious.

[ 16 ] From that standpoint, Fraiberg J. indicated that, at the time of the marriage, the appellant’s life had already taken the direction she had chosen according to her personal priorities. She had decided to make her living from writing or painting. The judge pointed out that the appellant also had a pre-existing medical condition at the time of the marriage. She had had a neuromuscular disease, myasthenia gravis, since childhood. From the testimony, including that of experts, Fraiberg J. noted that her ability to work was affected.

She could not reasonably work more than 20 hours or so a week. [ 17 ] In that regard, Fraiberg J. stressed that, although the appellant might therefore deem it difficult to find gainful employment, her refusal to even consider it led to the conclusion that her past and future needs depended to a large extent on her own decisions and attitude.

Expressing the opinion that any support should end when she reached 65, and refusing to take into consideration the amounts that the appellant could earn in the interval, Fraiberg J. invited the appellant to take steps to achieve a degree of self-sufficiency by the age of 65. [ 18 ] The appellant appealed from that judgment. In a judgment rendered on March 12, 2003, the Court intervened and reduced the support to $1000 a month as of April 1, 2002. It eliminated the conclusion regarding the term.

According to the Court, the circumstances related in the judgment did not justify stating at that point in time that the support obligation would cease on a specific date. [ 19 ] Subsequently, on September 28, 2005, Laramée J. handed down another judgment, on a new application by the respondent to cancel support. The reasons invoked were the loss of his employment, his remarriage and his two children with his new spouse. Laramée J. refused to cancel the support. He said that the appellant’s needs were obvious.

He suspended the respondent’s support during his period of unemployment, but maintained it at the amount established by the Court of Appeal in April 2002. [ 20 ] Between that judgment and the judgment a quo, motions were filed by each of the protagonists. No new judgment worthy of mention was rendered, however. JUDGMENT A QUO [ 21 ] In her judgment, Nantel J. noted from the outset the parties’ admissions that the appellant has myasthenia gravis and that her ability to work is limited to 20 hours a week.

She also noted the respondent’s admission that he has the ability to pay the support claimed. [ 22 ] Nantel J. then summarized the significant changes invoked by each party in seeking either an increase of the support or its cancellation. From the appellant’s viewpoint, there had been a substantial increase in the respondent’s income. From the respondent’s viewpoint, the appellant, at 66 years of age, was now receiving government benefits. [ 23 ] In Nantel J.’s opinion, those changes met the preliminary requirement set out in section 17(4.1) of the Divorce Act .

They show changes in the situations of both former spouses, which therefore make it possible to consider whether an order varying the prior support order might be justified. [ 24 ] Since that preliminary requirement was met, Nantel J. first dismissed the appellant’s motion for an increase in support. While noting that the respondent had higher employment income and had inherited substantial amounts from his father, she stated that the amount already granted was sufficient to meet the appellant’s needs.

The judge indicated that there was no evidence that those needs or her level of indebtedness had increased. [ 25 ] Nantel J. then considered the respondent’s application to cancel support. She noted that the appellant was receiving Régie des rentes du Québec (RRQ) benefits and Old Age Security (OAS) benefits from Canada. [ 26 ] She pointed out that, because of the Guaranteed Income Supplement the appellant would receive when the support payments ceased, those amounts will be higher than what the respondent was paying her.

Furthermore, given that the residence she owns represents non-negligible capital, with a net value in excess of $650,000, Nantel J. believed that, at 66 years of age, the appellant had the option of selling the house or obtaining a reverse mortgage. In the trial judge’s view, the appellant could presumably encroach on her capital to generate income.

[ 27 ] Lastly, Nantel J. commented on the appellant’s inaction since the separation. According to the judge, it was this inaction that kept her in a situation of dependency, which has no causal link to the marriage or its breakdown. The inaction was a personal choice on her part. Despite the admission that she could hold employment for 20 hours a week, an observation dating back to July of 2002 at least, Nantel J. noted that the appellant had made no serious effort to find employment or try to contribute to her living.

The judge added that the passage of time is a factor allowing a court to put an end to the social obligation of one spouse toward the other. She deemed that, in the circumstances, it was reasonable to determine a term for the payment of support, which she set at June 1, 2013 because of the difficult impact of that decision on the appellant. [ 28 ] The trial judge concluded that the support would not be indexed, given the income that the applicant had been receiving from the government since turning 65. The ensuing consequences, however, are serious.

Since the variation motion dates back to May of 2010, the collector of support payments considers that the declaration of the absence of indexation is retroactive to that date. Hence, since the impugned decision, the appellant has received excess support payments that she must remit to the collector. The second part of her application for leave to introduce new evidence is aimed at correcting that incongruity. ANALYSIS [ 29 ] First, it should be pointed out that Nantel J. ruled in keeping with the teachings of the Supreme Court in L.M.P. v.

L.S . [3] First, she made sure that the preliminary requirement for intervention was established, namely, that there was a major change of situation since the previous order had been issued,. She then asked how that change in situation impacted the objectives listed in section 17(7) of the Divorce Act , in order to adjust the conclusions of her variation order accordingly. [ 30 ] First, the appellant contends that the trial judge erred by denying her request for an increase in support.

We disagree. [ 31 ] Nantel J. correctly concluded that there was a major change in situation as regarded the former spouses since the previous order had been issued. That change mainly concerned the substantial increase in the respondent’s income. This was not challenged before us. [ 32 ] However, in regard to the application for an increase in support, Nantel J. concluded that there was no proof of the appellant’s greater needs. In this respect, the appellant has not established in what way the judge allegedly committed a palpable and overriding error. That burden was hers to discharge and she failed to do so.

Furthermore, as the respondent rightly points out, the appellant has often sought increases in support, although unsuccessfully. Support has remained the same since 2002. The grounds invoked by the appellant do not justify the Court’s intervention. [ 33 ] Second, the appellant suggests three reasons why Nantel J. could not issue a variation order that would impose a term on support. [ 34 ] The first reason is that her illness and resulting inability to work have been recognized since the consent on corollary relief, on the basis of which the November 1999 divorce decree was granted.

That therefore could not constitute a significant change in situation justifying a variation order. [ 35 ] The second reason is that her new income from the RRQ and the OAS were, in her opinion, eminently foreseeable at the time of the consent that led to the divorce decree. That also could not constitute a significant change in situation giving rise to a variation order. [ 36 ] On those first two points, the appellant essentially invoked circumstances similar to those in L.M.P. v.

L.S. [ 37 ] She added that, in any case, in the ruling rendered in March of 2003, the Court concluded that there was no term for the support. Thus, there was, in a sense, res judicata on the subject. [ 38 ] With respect, we believe that the appellant is on the wrong track. [ 39 ] In contrast to the situation prevailing in L.M.P. v. L.S. , the divorce decree in this case did not ratify a consent on corollary relief.

In fact, it did not even order the payment of support. It was limited to acknowledging the respondent’s offer (1) to pay support of $400 a week [TRANSLATION] “adjustable according to the parties’ mutual incomes and needs” and (2) to transfer his share of the family residence and the furniture in it to the appellant. [ 40 ] This divorce decree therefore, strictly speaking, contained no initial support order in favour of the appellant. It even went so far as to reserve her remedies in regard to corollary relief. Paragraphs 4 to 7 of Fraiberg J.’s judgment from July of 2002 shed light on the reasons wherefore.

It would appear that the divorce proceeded by default, in the absence of the appellant, who, on the morning of the scheduled hearing, was in the hospital. The judge dismissed the request for postponement made by her counsel and proceeded in the respondent’s presence alone. [ 41 ] It follows that, in this case, the initial support order issued in favour of the appellant, within the meaning of the Divorce Act , is that of Fraiberg J. Before that, no judge had examined the application of the factors in

section 15.2(4) of the Act . In contrast to the situation described in L.M.P. v. L.S. , Fraiberg J.’s judgment was not an initial order ratifying a consent in which the respondent acknowledged the appellant’s inability to work, without requiring her to do anything whatsoever. [ 42 ] Much to the contrary, first, the November 1999 divorce decree considered the offer to pay support as being subject to the parties’ mutual incomes and needs.

Second, in paragraphs 76 et seq. of his judgment, Fraiberg J. insisted on the appellant’s ability to work, which he evaluated, on the basis of testimony and experts, at about 20 hours a week. This is, in fact, the admission that the parties made in first instance and that Nantel J. specifically noted in her judgment.

In its ruling from March of 2003, the Court also referred to it as the appellant’s [TRANSLATION] “limited ability to work”. [ 43 ] In these circumstances, the appellant cannot claim that there was no major change within the meaning of section 17(4.1) of the Divorce Act as regards her illness and her resulting inability to work. Rather, the prior judgments indicate that that question remained open and depended on how the situation evolved, including the appellant’s efforts in that regard.

It was from this viewpoint that Nantel J. considered that element in her analysis. [ 44 ] It should be added that the judge’s analysis was not limited to that one element. As a decisive change in the spouses’ situation since the previous order, she also accepted that, at the age of 65, the appellant had begun receiving her RRQ and OAS pensions, which, when the support payments ended, would equal the amounts she received from the respondent. That was a major, on-going and more than temporary change that was relevant in establishing the appellant’s means.

It bears repeating that, in the November 1999 divorce decree, Morneau J. acknowledged the respondent’s offer to pay support that would remain, according to the conclusions, [TRANSLATION] “adjustable according to the parties’ mutual incomes and needs”. [ 45 ] That being so, once it was accepted that there was a change of situation, Nantel J. could reasonably conclude that it was advisable to impose a term on support payments in the circumstances. [ 46 ] Nantel J. had to issue her variation order on the basis of the objectives of section 17(7) of the Divorce Act .

She had to consider any economic advantages and disadvantages for the appellant resulting from the marriage or its breakdown, relieve any economic hardship she suffered as a result of the breakdown of the marriage and promote the economic self-sufficiency of each party within a reasonable period of time. And all those factors argued in favour of imposing a term. [ 47 ] As the judge rightly pointed out, the possibly difficult economic situation in which the appellant could find herself largely depend on her personal choices.

Without reiterating the various elements that the judge accepted, suffice it to say that she subscribed to the comments made by Fraiberg J. in 2002and that, in her eyes, the appellant had the same profile she had ten years earlier. In short, despite the clear messages that she possessed some ability to work and should make an effort in that regard, the appellant chose to maintain her position. [ 48 ] Our Court has already pointed out that the Divorce Act makes it possible to limit the duration of a support order.

In a recent ruling, Bich, J.A. wrote that, although imposing a term is a measure to be used with caution, it can be the appropriate response to a situation of fact well established by the evidence and real and concrete circumstances. [4] [ 49 ] In the case at bar, the appellant’s insufficient efforts to rejoin the work force justified imposing a term for the support. On that matter, when a party’s professional choices reflect a personal preference, they need not be funded indefinitely by the other party.

[ 50 ] In the case at bar, the respondent need not forever bear responsibility for the appellant’s choices and decisions. Here, the term imposed by the trial judge is justified by a substrate and circumstances substantiated by the evidence. [ 51 ] From that vantage point, the appellant is wrong to insist that, in March of 2003, the Court confirmed that a term would never be imposed on her support.

With respect, the appellant makes the ruling say more than it actually does. [ 52 ] In March of 2003, the Court merely stated that the circumstances related in the trial judgment did not justify placing a term on the support, no more. The Court then did that, imposing a term that was to lapse some seven years later, given an evolving situation that the trial judge had just described in detail for the first time. Then, like now, the Court approached with caution any term imposed too hastily on support payments. To read that deeply into the ruling would make it say what, in fact, it does not.

In 2005, Laramée J. actually said as much to the appellant. The transcriptions that the respondent filed testify to that. The appellant did not listen to that message or Fraiberg J.’s. [ 53 ] Overall, the appellant did not convince us that it is appropriate to reverse the judgment a quo.

In a context where her new income will adequately replace the support she received for nearly 15 years during which the respondent amply met his support obligations after the separation, where the appellant has sole possession of all the assets of the marriage, and where any economic hardship she may face is the result of her personal choices, not of the marriage or its breakdown, the judgment rendered is reasonable and contains no palpable and overriding error. [ 54 ] As for the application for leave to introduce new evidence, given the foregoing, it is appropriate to dismiss it as regards the first item raised.

The medical evidence that the appellant wishes to submit regarding her illness does not meet the relevant criteria. It consists basically of documents that existed at the time of the hearing in first instance. In any case, the documents have little impact on the grounds of appeal raised. [ 55 ] However, regarding the second element of that application, we note the incongruity resulting from Nantel J. ordering that there would not be any indexation, given the retroactive nature of her judgment. The consequence is that the appellant is forced to repay to the collector of support payments amounts already received.

The correspondence exchanged shows that the intention was to order that there would not be anyindexation as of the date of the judgment. The respondent agreed before us that it is appropriate and fair to correct that mistake. The appeal will be allowed solely for that purpose.

THEREFORE, THE COURT: [ 56 ] ALLOWS the application for leave to introduce new evidence only in part; [ 57 ] ALLOWS the appeal for the sole purpose of amending paragraph 80 of the judgment in first instance: [TRANSLATION] [80] DECLARES that the support will not be indexed as of the date of this judgment, i.e., as of January 16, 2012; [ 58 ] WITHOUT COSTS , given the nature of the dispute. (

s) NICOLE DUVAL HESLER, C.J.Q (

s) YVES-MARIE MORISSETTE, J.A

(

s) CLÉMENT GASCON, J.A. R. R. Representing herself Mtre. Jean Bergeron For the respondent Date of hearing: June 14, 2012