2011 QCCA 16, 2011 QCCA 16

Unofficial English Translation Droit de la famille — 119 2011 QCCA 16 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020630-109 (750-12-013224-089) DATE: January 7, 2011 CORAM: THE HONOURABLE BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. J.B. APPELLANT-Plaintiff / Defendant by counterclaim v. L.G.

RESPONDENT-Defendant / Plaintiff by counterclaim JUDGMENT [ 1 ] The Court; - On the appeal from a judgment rendered on April 8, 2010, by the Superior Court, District of Saint-Hyacinthe (the Honourable Mister Justice Jean-Guy Dubois), which granted the divorce of the parties and made various orders for corollary relief; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Morin J.A., with which Doyon and Bich JJ.A. agree; [ 4 ] ALLOWS the appeal in part, without costs; [ 5 ] REVERSES in part the trial judgment, replacing paragraphs 139 to 143 of said judgment with the following: [TRANSLATION] [139] DECLARES the defendant owner of the remaining furniture, including the lawn tractor located in city A, and ORDERS the defendant to pay to the plaintiff the sum of $5,000 for the partition of the furniture; [140] ORDERS the plaintiff to transfer to the defendant in a tax vehicle chosen by the defendant the sum of $21,216 from his LIRAs and RRSPs ($50,206 minus an amount of $7,773 accumulated prior to the marriage, the balance being divided by two), plus interest at the legal rate from February 15, 2008, by completing the appropriate forms for this purpose; [140.1] ORDERS the transfer to the plaintiff of 50% of the value of the gains accrued by the defendant between July 20, 1985, and February 15, 2008, in the defendant’s retirement plan (RREGOP) and ORDERS the plan administrator to establish the value of the portion of the benefits to be transferred to an investment vehicle chosen by the plaintiff according to law and to implement this order; [140.2] ORDERS the transfer to the defendant of 50% of the value of the gains accrued by the plaintiff between July 20, 1985, and February 15, 2008, in the plaintiff’s ([Company A]) pension plan and ORDERS the plan administrator to establish the value of the portion of the benefits to be transferred to an investment vehicle chosen by the defendant according to law and to implement this order; [141] ORDERS the plaintiff to pay to the defendant a lump sum of $25,000; [142] ALLOWS the defendant to become the sole owner of the residence located in city A by paying the notary fees, by notifying the plaintiff by February 11, 2011, at the latest that such is her intention, and by paying to him a sum of $80,000 representing his share of the residence, with the defendant to assume the mortgage and all charges on the property; [143] ORDERS that if the defendant does not notify the plaintiff within said period of her intention to acquire the residence in city A, said residence be put up for sale by mutual agreement through a real estate agent, at the market value of the property agreed upon by the parties or, failing this, at a price no lower than $228,000, and ORDERS that the net proceeds from the sale be divided equally between

the parties. BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A.

Mtre Diane Poirier Matte, Poirier For the appellant Mtre Yolaine Lindsay Lindsay, Lévesque For the respondent Hearing date: November 11, 2010 REASONS OF MORIN, J.A. [ 6 ] The appellant appeals from a judgment rendered on April 8, 2010, by the Superior Court, District of Saint-Hyacinthe (the Honourable Mister Justice Jean-Guy Dubois), which granted the divorce of the parties and made various orders for corollary relief. [ 7 ] It should be noted that the marriage of the parties was celebrated on July 20, 1985, and that cohabitation ceased on February 15, 2008. [ 8 ] The appellant contends, first, that the trial judge fixed the amount of support for the respondent and the two children, X and Y, by erroneously relying on the fact that the situation had not changed since interim relief had been ordered.

This argument could be accepted if the judge had simply reiterated the orders issued at the interim stage, without reviewing the situation. The judge did conduct such a review, however, and, consequently, the appellant’s argument must fail. [ 9 ] With regard to child X, the appellant argues that the judge should have declared her independent, considering her work income ($7,300) and scholarships ($4,000). At the time of the trial, X was 18 years old and was studying at CEGEP.

The judge deemed that she was a dependent child and that, under the circumstances, her income did not justify eliminating or reducing her support. I find no palpable and overriding error there justifying the intervention of the Court. [ 10 ] With respect to child support, the appellant suggests that the judge awarded a higher amount of support because of limited access to Y, with no evidence of undue hardship. This argument is without merit, as evidenced by the following paragraphs of the judgment: [TRANSLATION] [45] As for access to Y, there is a problem.

For some time now, the plaintiff has only seen and had visits from her one half day every fifteen (15) days. [46] The defendant requests an increase in child support of 20%, given the additional costs this entails for her. [47] The Court deems that the quantum awarded in July of 2009 must be maintained, as it enables the defendant to cover her budget for her two young daughters. [ 11 ] Turning now to the matter of spousal support, the appellant points to the increase in the respondent’s annual income to argue that support should have been reduced from $1,000 to $500 per month.

Her income rose from $7,000, according to a statement dated October of 2008, to $20,911 at the date of the trial. [ 12 ] It is relevant here to mention the deference rule that an appellate court must follow when ruling on a support matter. Here is what our colleague Kasirer J.A. said in this regard in Droit de la famille - 10829 : [1] [TRANSLATION]

[24] It is often said, with good reason, that an appellate court must hesitate before setting aside a support order issued by a trial judge,who has the advantage of seeing the parties and, consequently, more suitably assessing the circumstances and weighing the factors andobjectives relevant to fixing the amount of support. Indeed,

section 15.2 of the Divorce Act provides a method for determining theamount of support based on an exercise of discretionary power. That an appellate court believes that the quantum of support should havebeen different does not suffice to justify its intervention. One of the rare cases where intervention is justified is an error of principle inapplying the Act. [13] The appellant also contends that the trial judge should have terminated the support considering all the circumstances of thecase. [14] Need we truly reiterate that the Court generally exercises great restraint when ruling on such matters?

This was noted by ourcolleague Côté J.A. in a recent judgment, Droit de la famille – 102718:[2] [TRANSLATION] [85] It should be noted that subsection 15.2(3) of the Divorce Act provides that a time limit can be placed on a support order.Moreover, case law is consistent that to set a time limit on the obligation to provide support, the circumstances must be special, real, andconcrete (M.B. v. J.-C.D., (QC CA), [2003] R.D.F. 251 (C.A.); Droit de la famille – 2190, (QCCA), J.E. 95-1037 (C.A.)).

In fact, our Court has intervened regularly to emphasize the exceptional nature of a time limit and to remove itwhen the trial court gives too much weight to the objective of financial independence, considering the circumstances of the case (L.S. v.A.C., 2006 QCCA 888; P.-A.B. v. L.-A. D., J.E. 2005-1951 (C.A.)). [15] At paragraphs 49 to 61 of his judgment, the trial judge explained why he did not accept the two aforementioned requests madeby the appellant.

Once again, on the basis of the two judgments I have just cited, I find no error in the reasons that would justify theintervention of the Court in this regard. [16] At trial, the respondent requested that the appellant also be ordered to pay her a lump sum of $80,000 as spousal support. Thejudge accepted this request, but reduced the lump sum awarded to $50,000. [17] The appellant argues that by awarding such a lump sum, the judge disrupted the balance between the parties and caused himserious economic hardship.

He asks the Court to reverse this order. [18] The observations of Côté J.A. in the above-cited Droit de la famille – 102718[3] bear mentioning here: [TRANSLATION] [101] The lump sum is of an alimentary nature. The Supreme Court in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813,recognized that the purpose of a lump sum can be to compensate for the inconvenience caused to the support recipient by the marriage.In Pelech v.

Pelech, (SCC), [1987] 1 S.C.R. 801, the Supreme Court noted that a lump sum is designed to minimize theeconomic consequences of the relationship’s breakdown. [102] In Droit de la famille – 2091, (QC CA), [1994] R.J.Q. 2903 (C.A.), Gendreau J.A. wrote that there are manyreasons justifying a lump-sum award. The lump sum may be used to meet immediate needs or even longer-term needs, such as ensuringthe financial security of the support recipient.

Since it is a form of support, it is assessed in light of the needs and means of the parties. [19] In light of the alimentary nature of the lump sum, I find that the Court should once again show deference for the ruling at trialon this matter. [20] This being said, I think the trial judge was correct in awarding a lump sum, given the difference in income between the partiesand given the need to provide the respondent with as much financial security as possible.

However, considering the appellant’s annualincome ($60,864) and his limited assets, I am of the opinion that a lump sum of $50,000 is excessive and that it should be reduced to$25,000. [21] The appellant contends, furthermore, that the trial judge made errors in partitioning the benefits accrued in a retirement planduring cohabitation. [22] It seems that the admissions made by the parties at trial misled the judge with respect to the value of the benefits accrued bythe respondent under the Régime de retraite des employés du gouvernement et des organismes publics (RREGOP). [23] I believe this error can be corrected, which I will do in the conclusions of these reasons, by considering the partition of thebenefits accrued by the respondent under the RREGOP during cohabitation and by the appellant in the [Company A] pension planseparately from the other pension plans. [24] With regard to the second alleged error made by the judge concerning the partition of the other accrued pension benefits, theappellant wrote the following in paragraphs 42 to 48 of his statement: [TRANSLATION] 42.

The appellant also held RRSPs and LIRAs with Wood Gundy worth $50,206 in 2009 (A.S.,

Schedule III (

b) at 253–254). Thesums held at Wood Gundy were from the severance package received when the appellant worked for [Company B] from April 18, 1979to March 25, 1996, (i.e. 75 months before the marriage and 92 months during the marriage) (document filed under

article 403 C.C.P. onNovember 6, 2009) and from his job [at Company C] from 1996 to 2003. The appellant’s severance package was in the amount of$65,000: $46,000 was paid in RRSPs received by the appellant between 1996 and 1997 and $19,000 was paid in cash (A.S.,

Schedule III(

b) at 248–249). The $46,000 was invested and the $19,000 was spent (A.S.,

Schedule III (

b) at 250) by the parties.

43. The [Company C] pension funds, in the amount of $17,471, were deposited in their entirety at Wood Gundy on May 14, 2004, (A.S.,

Schedule III (

b) at 260). 44. Over time, the parties withdrew $50,034 from these investments (A.S.,

Schedule III (

b) at 262). 45. Of the sums from [Company B], $46,000, and from [Company C], $17,471, totalling $64,471 [sic], there was $50,206 left after the withdrawals made during the marriage and spent by the parties. 46. The only documents that the appellant was able to obtain to calculate the pre-marriage portion were filed under

article 403 C.C.P. on November 6, 2009, and were unopposed. This document shows at December 31, 1986, i.e. for 92 months of work, contributions worth $19,034.55 as at December 31, 1986. According to a cross-multiplication, the value of the contributions at the date of the marriage could be calculated at 75/92, i.e. 81.52% of $19,034, or $15,516 (75 months being the number of months worked before the marriage). 47. This amount cannot be accepted because the parties made withdrawals during the marriage.

We submit the following calculation: of the sums deposited at Wood Gundy, i.e. $63,471, $46,000 was from [Company B] in 1996-1997 and $17,471 from [Company C]; in 2009, there was only $50,206 left. Of the total investment, $15,516, i.e. 24.40%, was from before the marriage. We submit that the appellant should be entitled to at least 24.40% of the current pension amount ($50,206), i.e. $12,171. 48.

This calculation is very conservative and does not take into account that the sums acquired before the marriage are those that, over time, yielded the highest returns. [ 25 ] It should be noted that in the above-cited paragraph 47, the sum of $50,034 referred to in paragraph 44 is not mentioned.

This error must be remedied if the Court intervenes to take into account the sums accumulated by the appellant in his [Company B] pension plan before the marriage for the calculation of the pension benefits to be divided. [ 26 ] I am of the view that fairness dictates that these sums be taken into account regardless of the evidentiary difficulties encountered in this regard, because of the fungible nature of the sums in question. [ 27 ] By adding the total sums withdrawn during the marriage ($50,034) to the balance at the end of cohabitation in 2009 ($50,206), we get the total sums invested by the appellant in his RRSPs and LIRAs ($100,240).

In other words, 49.9% of the sums invested by the appellant, before and during the marriage, were spent. [ 28 ] If we follow this reasoning, it must be considered that 49.9% of the gains accumulated before the marriage and 49.9% of the gains accumulated during the marriage were spent. [ 29 ] We can therefore consider that the appellant accumulated an amount of $15,516 before the marriage and subtract from this amount the 49.9% that was spent.

We end up with a sum of $7,773, which represents the gains accumulated before the marriage that were not spent. [ 30 ] I would therefore subtract this sum of $7,773 from the amount of $50,206 to be divided amongst the appellant’s RRSPs and LIRAs as part of the partition of the patrimony. [ 31 ] In addition, with respect to this partition, the parties agreed at the hearing that the trial judge should not have fixed the selling price of the family residence at no less than $228,000, if the respondent does not choose to acquire it.

I will take this into account by allowing the parties to agree on another selling price, the $228,000 sum applying only where an agreement cannot be reached between the parties in this regard. [ 32 ] Lastly, the appellant argues that the trial judge should not have ordered him to pay costs. [ 33 ] I would note here that the judge simply applied the principle set out in

article 477 of the Code of Civil Procedure and I find no error on his part justifying the intervention of the Court in this regard. [ 34 ] For the foregoing reasons, I would allow the appeal in part, without costs, given the mixed outcome of the appeal, and reverse in part the trial judgment, replacing paragraphs 139 to 143 of said judgment with the following: [139] DECLARES the defendant owner of the remaining furniture, including the lawn tractor located in city A, and ORDERS the defendant to pay to the plaintiff the sum of $5,000 for the partition of the furniture; [140] ORDERS the plaintiff to transfer to the defendant in a tax vehicle chosen by the defendant the sum of $21,216 from his LIRAs and RRSPs ($50,206 minus an amount of $7,773 accumulated prior to the marriage, the balance being divided by two), plus interest at the legal rate from February 15, 2008, by completing the appropriate forms for this purpose; [140.1] ORDERS the transfer to the plaintiff of 50% of the value of the gains accrued by the defendant between July 20, 1985, and February 15, 2008, in the defendant’s retirement plan (RREGOP) and ORDERS the plan administrator to establish the value of the portion of the benefits to be transferred to an investment vehicle chosen by the plaintiff according to law and to implement this order; [140.2] ORDERS the transfer to the defendant of 50% of the value of the gains accrued by the plaintiff between July 20, 1985, and February 15, 2008, in the plaintiff’s ([Company A]) pension plan and ORDERS the plan administrator to establish the value of the portion of the benefits to be transferred to an investment vehicle chosen by the defendant according to law and to implement this order; [141] ORDERS the plaintiff to pay to the defendant a lump sum of $25,000; [142] ALLOWS the defendant to become the sole owner of the residence located in city A by paying the notary fees, by notifying the plaintiff by February 11, 2011, at the latest that such is her intention, and by paying to him him a sum of $80,000 representing his share of the residence, with the defendant to assume the mortgage and all charges on the property;

[143] ORDERS that if the defendant does not notify the plaintiff within said period of her intention to acquire the residence in city A, said residence be put up for sale by mutual agreement through a real estate agent, at the market value of the property agreed upon by the parties or, failing this, at a price no lower than $228,000 and ORDERS that the net proceeds from the sale be divided equally between the parties. BENOÎT MORIN J.A.