2019 QCCA 137, 2019 QCCA 137

Droit de la famille — 1991 2019 QCCA 137 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027469-188 (500-12-312403-128) DATE: January 28, 2019 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. PATRICK HEALY, J.A. J. S. APPELLANT – Plaintiff v. JO. Z. RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant J. S. appeals the judgment of the Superior Court, District of Montreal (Hon. Mr.

Justice Paul Mayer) that adjudicated her “amended motion to modify accessory measures and calculate child support” by declining to issue a spousal support order in his reasons without having formally dismissed her application for same, and, ordering the respondent to pay her child support totalling $994.68 for 2014, 2015 and 2016 and thereafter to pay her child support of $400 per month as of January 1, 2018, with indexation as of January 1, 2019 . [ 2 ] For the reasons of Hilton, J.A., with which Chamberland and Healy, JJ.A. concur; THE COURT: [ 3 ] DISMISSES the appeal without legal costs.

JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. PATRICK HEALY, J.A. Mtre Robert Teitelbaum Teitelbaum Librati For appellant Mtre Donald Devine Devine Schachter Polak For respondent Date of hearing: December 6, 2018

REASONS OF HILTON, J.A. [ 4 ] The principal issue in this appeal is whether the trial judge erred in declining to issue a spousal support order for the benefit of the appellant J. S. subsequent to her divorce from the respondent Jo.

Z. by treating significant and regular monetary contributions she received from her parents as income under the Divorce Act . [1] Another issue raised in the notice of appeal but not pleaded in the appellant’s memorandum of argument is whether the child support order the trial judge did issue in the amount of $400 per month with effect as of January 1, 2018 should have been made with effect retroactive to the issuance of the appellant’s motion on September 1, 2014.

I therefore consider this contention to have been abandoned, which, in any event, I would have proposed rejecting. [ 5 ] At the hearing the appellant’s counsel also abandoned the contention in his client’s notice of appeal and factum that the trial judge displayed bias against his client, including an assertion in the notice of appeal that in a long career at the Bar, this case was the first one in which he was left with the distinct impression that not only would justice not be done but also not be seen to be done.

So serious an assertion against the integrity of a trial judge cannot be made lightly, as it attacks the judge’s core obligation of impartiality. [ 6 ] As I had the occasion to observe in the context of another family law case in which a similarly unfounded assertion was casually made, [2] its obvious purpose was not to obtain an appropriate order for a new trial on the basis of a reasonable apprehension of bias because the integrity of the proceedings had been vitiated, but instead to cast doubt on the trial judge’s findings of fact. [ 7 ] I would not have given the slightest credence to this contention had it not been abandoned. [ 8 ] The parties were married on November 25, 2001.

They are the parents of two minor children, X and Y, who are now 12 and 13 years old respectively.

Both children require special care and attention as they suffer from a condition known as autism spectrum disorder, with that of X being considered more severe. [ 9 ] Subsequent to the institution of divorce proceedings in 2012, the parties signed a document in March of 2013 entitled “Consent Agreement on Accessory Measures”. [3] At the time, neither party was gainfully employed, although they did undertake “to use their best efforts to seek employment with a view to becoming financially autonomous as is practicable”.

The agreement therefore did not provide for the payment of child or spousal support, although the right to claim such support was reserved. For all practical purposes, however, the parties were only able to sustain themselves through the financial generosity of their respective parents. [ 10 ] The agreement also provided that the parties would have shared custody of their two children. The net proceeds derived from the sale of the family residence resulted in each parent receiving $25,000, with the balance being held in trust to look after the future special needs of their two children.

That balance was soon exhausted, after which both sets of grandparents stepped up and defrayed such costs on an equal basis. [ 11 ] The agreement had no specific provisions concerning any amounts payable for child support and spousal support, as neither of the parties was then employed. It provided that “no child support shall be payable and each parent undertakes to advise the other when they find employment at which time child support shall be calculated according to the Child Support Guidelines”.

The only provision concerning spousal support simply reserved the parties’ respective rights. [ 12 ] The respondent became employed not long after the agreement was signed, and he thus began to pay the appellant child support of $500 per month. The agreement was ratified in the context of the judgment of the Superior Court rendered on February 5, 2014 that divorced the parties.

Sadly, a mere few months later in August of that year, matters began to unravel, leading the parties to the litigious state in which they now find themselves. [ 13 ] The evidence at trial discloses that the respondent discontinued his child support payments to the appellant after learning that she had declared $66,908 on her income tax return for the 2013 fiscal year that she filed in 2014. This income was generated as the result of the appellant’s father having put her on the payroll of his company, although it is not clear whether she was actually working for that company.

The respondent’s gross income for the same fiscal year was $78,750. His current annual income is in the range of $111,000. [ 14 ] The appellant has only been able to find sporadic employment in the recent past, but her work-related income is relatively meagre. Her best estimate is that as a yoga instructor she can earn up to $400 per month. In addition, her mother pays the rent for the apartment in which she lives and in which she cares for her children when they are with her (her father having died since the initiation of the divorce proceedings).

There is thus every indication that the appellant’s mother will continue to support her daughter indefinitely, unless the appellant is able to secure steady employment income, which at the time being at least appears improbable. [ 15 ] In this case, the ultimate issues the trial judge had to determine were the appellant’s claim that a spousal support order be entered retroactive to 2013, and that in determining the child support obligation of the respondent, his income be fixed at $111,000, with no income attributable to her, despite the financial support she continues to receive from her mother.

She also sought a provision for costs. [ 16 ] In assessing the competing claims, the trial judge first held that in establishing the parties’ respective income he would include what he described as “the regular, recurrent, substantial, reliable and foreseeable aid received from parents for parties to meet their needs.” In doing so, he thus excluded from consideration various factors such as financial support for legal fees, the children’s medical and therapeutic expenses, the appellant’s meagre work-related income and government benefits to which she is entitled, and the cost to the respondent of his recent wedding. [ 17 ] The trial judge also took into account the financial support the respondent received from his father between 2014 to 2017, during which time he was unemployed, in establishing his child support obligations for that period of time.

The result of his calculations was the respondent was ordered to pay the appellant a total of $994.68 as child support for that four year period, and $400 per month as

of January 1, 2018, with annual indexation beginning in January of 2019. [ 18 ] The trial judge then proceeded to determine whether any spousal support would be payable to the appellant, retroactive or otherwise.

In doing so, he analyzed the parties respective positions before and after the marriage and made the following findings of fact: • the marriage represented a “certain form of traditional marriage”, although he acknowledged that the respondent was “greatly involved” in caring for the couple’s two autistic children; • while the respondent was able to gain some work experience despite significant periods of unemployment, the same was not true of the appellant, whose un-employability pre-dated the marriage; • the appellant submitted “a dearth of evidence” [4] in support of the proposition that she was unable to work for medical reasons, and acknowledged in her testimony [5] that she was not being followed by any medical professional to address her perceived problems; • the appellant had never been incentivized to be gainfully employed owing to the continuing support and generosity of her parents, which was still in effect; • the evidence did not establish that the respondent had the means to pay spousal support in addition to the child support obligations he was being ordered to pay. [ 19 ] Before proceeding further, it is important to identify the standard of review applicable to the resolution of the appeal in the context of a case such as this one where the trial judge’s findings of fact are not open to serious challenge.

That standard was well described by Chamberland, J.A. on behalf of the Court in Droit de la famille - 14774 : [6] [23] In L.M.P. v. L.S. , the Supreme Court of Canada reminds us that the threshold to be met before a court may vary a prior spousal support order is articulated in ss. 17(4.1) of the Divorce Act . There must have been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the prior spousal support order.

The onus is on the party seeking a variation to establish such a change. [24] The change in the conditions, means, needs or other circumstances has to be a material one (as opposed to a trivial or insignificant one), that is to say a change that, if known at the time of the prior order, would likely have resulted in different terms to the prior order.

The corollary to this being that if the circumstances relied on as constituting a change were known they cannot be relied on as the basis for variation. [25] Once the threshold for variation of a spousal support order is met, the court must determine what variation to the order is required in light of the change in the circumstances.

The court then takes into account the material change and limits itself to making only the variation justified by that change. [ 20 ] In L.M.P ., [7] the appellant wife had been diagnosed with multiple sclerosis shortly after the marriage in 1988 as a result of which she stopped working and essentially looked after the household and the parties’ children while the husband continued his career. Their comprehensive separation agreement that was ratified in a divorce judgment in 2003 included an obligation for the husband to provide spousal support, but without a termination date.

The husband’s application in 2007 to terminate spousal support was granted at trial. The judge found that the wife had become able to work outside the home. In appeal, it was held that the wife’s failure to become self-sufficient represented a material change in circumstances that justified a variation order under s. 17 of the Divorce Act with effect as of August 2010. [ 21 ] The Supreme Court reversed and therefore dismissed the husband’s variation application.

In so doing, it held that the trial judge had erred by conducting an inquiry on the wife’s ability to work rather than determining whether a material change in circumstances had occurred.

This Court was said to have erred by concluding that the wife had acquired the capacity to work and that factor, plus the passage of time since the initial order, constituted the required material change of circumstances. [ 22 ] The first issue in this appeal is whether the trial judge erred in treating the financial support the appellant received from her late father that she now receives from her mother as “income” for the purpose of calculating the child support orders payable by the respondent.

In reaching this conclusion, the trial judge relied on the definition of “annual income” in s. 9 of the Regulation respecting child support [8] which according to its terms “means income from any source/ les revenus de toute provenance” (emphasis added), and cited the learned author Michel Tétrault to the effect that the ambit of s. 9 extends to « des sommes d’argent versées régulièrement par les parents », [9] as well as four judgments of this Court to that effect. [10] [ 23 ] In this case, there is simply no evidence of a material change in circumstances of the appellant from the date of the signature of the consent agreement that the judgment of divorce ratified in February of 2014 until the hearing in March of 2018 of the appellant’s motion that the trial judge heard.

The appellant is the sole source of the evidence of her inability to be gainfully employed beyond part- time work as a yoga instructor. [ 24 ] The trial judge correctly observed that such evidence is based on her own perception of a medical disability that is unsupported by medical evidence or the existence of any treatment plan to mitigate or resolve its effects. As Tétrault points out, any such alleged incapacity must be supported by independent and conclusive evidence, [11] which is not the case here.

Moreover, the financial support the appellant was receiving from her father before his death has subsequently been replaced by financial support from her mother, who testified that she will continue to do so for as long as she can. [12] [ 25 ] With respect to the appellant’s claim for spousal support, she has neither alleged nor established a properly reviewable error by the trial judge for having concluded, as he did, that the respondent did not have the financial means to simultaneously continue with his child support obligations and also pay the appellant spousal support. [13] Indeed, the gross income of the parties for 2018 on which the trial judge relied shows that the appellant was credited with slightly more than the respondent ($125,305 for the appellant and $123,272 for the respondent).

[ 26 ] Accordingly, I would dismiss the appeal. I would do so without costs, principally because a different panel of the Court had previously dismissed a motion to dismiss the appeal without a hearing and without costs, [14] thus allowing the appeal to proceed in the usual manner to a hearing on the merits. ALLAN R. HILTON, J.A.