2011 QCCA 1291, 2011 QCCA 1291

Unofficial English Translation Droit de la famille — 111999 2011 QCCA 1291 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-007259-119 (200-04-018570-091) DATE: July 8, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. LORNE GIROUX, J.A. S. B. APPELLANT – Plaintiff v. SY. C.

RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on December 3, 2010, by the Superior Court, District of Quebec (the Honourable Madam Justice France Bergeron), which awarded her custody of X, condemned the respondent to pay monthly child support of $400 as of October 22, 2010, the date on which the Motion for custody and determination of child support payments was served, and ordered her to send the respondent X's school attendance records and report cards. 1 – The facts [ 2 ] The parties dated for about three months, but never lived together.

When they broke off their relationship, the appellant informed the respondent that she was pregnant, but he did not believe the child was his. [ 3 ] On ..., 1992, the appellant gave birth to X. The father's name was not written on the birth certificate. When he was 10 or 11, X told his mother that he would like to meet his father. Consequently, she attempted to organize a meeting, but for reasons that were not explained, that meeting was repeatedly postponed. The respondent and X finally met in April of 2007.

They did not see each other again; the respondent did not believe he was the child’s father. [ 4 ] On March 25, 2009, the appellant served a Motion claiming paternity on the respondent. The relevant tests were run and on July 15, 2009, the motion was granted. The respondent was declared to be X's father. On October 22, 2009, the appellant served a Motion for custody and determination of child support payments on the respondent. [ 5 ] The respondent has fathered two other children. They suffer from severe asthma, especially the oldest, and are frequently hospitalized.

The respondent's spouse is unable to work more than twenty hours per week because she must care for the children. She is a nursing assistant and earns approximately $20,000 per year. The respondent has an annual income of $64,121.20. 2. Trial judgment [ 6 ] The respondent invoked the hardship resulting from the obligation of support owed to his two other children to seek a reduction of the amount of support payable to X, which is $608 per month according to the Regulation respecting the determination of child support payments [1] enacted in application of the Code of Civil Procedure .

He has offered to pay $200 per month. [ 7 ] The trial judge pointed out that the support provided in the table may be reduced if the support payer establishes the existence of hardship because of an obligation to provide support to other children (article 587.2 CCQ ).

She confirmed that such a reduction must not lead to an unfair situation for any children born from a previous relationship (article 522 CCQ ). [ 8 ] After considering the various scenarios proposed by the respondent and in light of his Statement of income and expenses and balance sheet, the judge found that, first, he had demonstrated the existence of the special needs of his two other children, and, second,

his financial situation made it impossible to pay the support determined in the table for X. She set the support payments for X at $400 per month. She also declared that the "circumstances of the case" did not allow her to make the payment of the support retroactive to the date of service of the Motion claiming paternity. [ 9 ] The appellant's application seeking to increase the support payments by 20% because the respondent does not exercise his access rights was dismissed.

That decision was supported by X's age, the date of the judgment declaring that the respondent was his father and the absence of any relationship between them.

The judge refused to set a term to the support coinciding with X reaching the age of majority, deeming that there was no reason justifying such an order. 3 – The issues [ 10 ] In her factum, the appellant poses two questions: - Did the trial judge err by reducing the support payable by the respondent for X because of his support obligation toward his two other minor children? - Did the trial judge err in not making the support payments retroactive to March 25, 2009, the date on which the Motion claiming paternity was served? 4 – Analysis Amount of support [ 11 ] The appellant gives the five following grounds to support her contention that the trial judge erred by reducing the support payable by the respondent for their son X: 1) the respondent did not meet the onus of proving that his support obligations toward his two other children were causing him "hardship" within the meaning of the Act; 2) the judge was wrong to accept as fact the respondent's Statement of income and expenses and balance sheet after he admitted that some of the expenses were incorrect or duplicated; 3) as indicated by case law, the judge should not have taken into account the reimbursement of debts when assessing the support for X; 4) the judge did not sufficiently take into account the income of the respondent's spouse; 5) the judge erred by ignoring the principle of equality between children and their right to be treated fairly. [ 12 ] According to the Child Support Determination Form , the annual base contribution payable by the respondent for his son X is $7300, or $608 monthly, based on an annual income of $64,121.20.

The trial judge reduced this contribution to $400 per month in consideration of the special needs of the respondent's two other children and the $695.45 monthly deficit indicated in his Statement of income and expenses and balance sheet. [ 13 ] With great respect for the trial judge, she erred by reducing the contribution payable by the respondent for his son X. [ 14 ] First, the deficit alleged by the respondent is not an actual deficit. Indeed, the income of the respondent's spouse was not sufficiently taken into account. The family unit generates an annual gross income just shy of $85,000.

Admittedly, the couple's two children have health issues that generate significant expenses for medications (about $380 per month), but insurance covers 80% of that cost. In addition, some expenses appearing in the balance sheet could be reduced and others should be amortized over several years. For example, there is a $6,000 expense for repairs to the roof. Not only is this expense non-recurring, but, in addition, it should be amortized over several years.

Finally, the judge did not take into consideration the fact that some of the expenses appearing in the Statement of income and expenses and balance sheet were deducted twice under different headings. [ 15 ] By performing the relevant savings, calculating the actual expenses and taking into consideration the salary of his spouse to pay for some of the expenses faced by the couple and their two children, the respondent has the means to pay the contribution determined in the table for his son X. [ 16 ] Second, the effect of the reduction on the contribution for X was not assessed adequately.

It led to an unfair situation. On the one hand, the respondent's children from his new relationship live in a house where they lack for nothing. On the other hand, X is destitute with his mother, whose only means of support is the welfare payments she receives. The reduction of the contribution determined by the table results in X being deprived of amounts that would be used to answer his basic needs.

Retroactivity [ 17 ] The trial judge made the support payments retroactive to the date of service of the Motion for custody and determination of child support payments, that is, to October 22, 2009: [translation] [31] The Court is of the view that the support payments calculated according to the form should be reduced. The support payments are thus established at $400 per month, which will be payable as of the date of service of the motion for determination of child support payments.

The Court is of the view that in light of the circumstances, it cannot order retroactivity to the date of service of the Motion claiming paternity . [Emphasis added] [ 18 ] In Droit de la famille – 2083 , Delisle J.A. wrote that support payments are retroactive to the date of service of the claim :

[translation] From the moment the right to support payments is established, at whichever stage of the proceedings, the Court, unless it renders a reasoned decision to the contrary, must necessarily order the retroactivity of the support to the date of service of the application for support, even if it does not include a specific conclusion seeking this. [2] [ 19 ]

Article 595 CCQ provides that an application for support may be retroactive to a date preceding the service of the application on certain conditions: 595. Support may be claimed for needs existing up to one year before the application. The creditor shall prove that he was in fact unable to act sooner, unless he made a demand to the debtor within one year before the application, in which case support is awarded from the date of the demand. [ 20 ] In G.(L.) v. L.(Y.) , the court wrote: [translation] [22] It is, however, possible to award support as of a date that precedes the application.

This will be the case, for example, when the support recipient has given his or her debtor formal notice to pay support. In that situation, the recipient may require that support be paid from the date of the demand letter. Otherwise, the recipient must prove that he was in fact unable to act sooner. In both situations, support payments may not be claimed for a period of more than one year preceding the application. [3] [ 21 ] Since Pont-Viau v. Gauthier MFG LTD , [4] the notion of inability to act has broadened in civil law, as the Court observed in G(L.) v.

L.(Y.) , supra : [translation] [28] In 1978, in Pont Viau (Cité) v. Gauthier Mfg Ltd , the Supreme Court clarified the meaning of the concept of inability to act: ... it is therefore not necessary for the party to show that he was prevented from acting by an insurmountable obstacle totally beyond his control; the party need only show that the action was impossible in fact, that there was a relative impossibility. ... It is impossible to specify in advance every situation that might constitute a relative impossibility.

Each case must be decided according to its own particular circumstances, since the impossibility in question is really one of fact. [29] In that case, the Supreme Court concluded that the error of a party's counsel, who lets a remedy expire when he has been mandated to bring proceedings, places that party in a position of inability to act. [30] With this judgment as a backdrop, case law has through the years broadened the list of situations that may be likened to an inability to act.

The existence of a mediation process between the parties or negotiations between counsel to come to an out-of-court settlement are henceforth considered propitious to retroactivity of support payments. The failure of the support payer to inform the recipient of a salary increase or of a new job has also been considered as resulting in an inability to act. Moreover, it was decided that the mother of a child whose paternity has yet to be established is unable to bring an application for support. [5] [Citations omitted] [Emphasis added] [ 22 ] In L.B. v.

G.R. , [6] the Court decided that a parent was unable to act prior to legal recognition of paternity. More recently, in Droit de la famille — 10237 , the Court reaffirmed this principle: [translation] [7] Finally, the Court awards support payments retroactively to the birth of the child.

The trial judge came to this conclusion following a discretionary exercise based on the following two elements: first, the appellant refused to voluntarily recognize his paternity in August of 2008 when a judicial application was brought by the respondent; second, the support payments could not be established prior to the January 12, 2009, judgment, which established the appellant's paternity. ... [9] In this case, the respondent filed the application for support for the child at the same time as the motion claiming paternity, on August 21, 2008.

Under these circumstances, the appellant has not convinced the Court that the trial judge improperly exercised his discretion. The circumstances of the file were in fact tantamount to an inability to act. [7] [ 23 ] In the present case, the appellant meets the requirements of

article 595 CCQ . She has established both her inability to act before the respondent's paternity was established, and the fact that her claim for support is for a period of time that is within one year of the service of her motion. FOR THESE REASONS, THE COURT: [ 24 ] ALLOWS the appeal, without costs, given the nature of the dispute, for the sole purpose of substituting at paragraph 38 of the trial judgment the following conclusion: CONDEMNS the respondent to pay to the appellant, for the benefit of X, monthly support payments in the amount of $608 retroactively

to March 25, 2009. FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. LORNE GIROUX, J.A. Mtre Pascal Bernier Patry, Bernier For the appellant Mtre Marie-Claude Pichette Mathieu, Carrier For the respondent Date of hearing: July 6, 2011