2011 QCCA 1554, 2011 QCCA 1554

Unofficial English Translation Droit de la famille — 112606 2011 QCCA 1554 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No. 500-09-019124-080 (500-12-278623-057) DATE: August 30, 2011 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. T.C. APPELLANT/Plaintiff v. A. K. RESPONDENT/Defendant JUDGMENT [ 1 ] THE COURT: On the appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Benoît Emery), which, on September 30, 2008, granted the parties' divorce and issued various corollary relief orders; [ 2 ] For the reasons of Bich J.A., with which Hilton J.A. agrees, and for the reasons of Beauregard J.A.: [ 3 ] ALLOWS the appeal, in part; [ 4 ] QUASHES the trial judgment for the sole purpose of replacing paragraphs [119] (including footnote 18) and [122] of the conclusions by the following paragraphs: [ TRANSLATION ] [119] ORDERS the defendant to pay the plaintiff the sum of $97,283.69 18 in respect of the dissolution of the partnership of acquests, taking into account, however, the fact that the notary France Sauvé must remit the sum of $100,436 to each of the parties in respect of the sale of the property on A street in A City; 18 That is, the sum of $ 107,283.69 minus a credit of $10,000 concerning the provision for costs. [122] ORDERS the defendant to pay the plaintiff, retroactively to the date on which the present divorce proceedings were brought, support of $6250 per month by means of two equal monthly instalments of $3125 each, payable on the 1st and the 15th of each month; [ 5 ] AMENDS paragraph [123] of the trial judgment, to take into account the parties' agreement: [123] ORDERS the defendant to pay the plaintiff, for the sole benefit of the children X and Y the sum of $1650 per month by means of two equal monthly instalments of $825 each, payable on the 1st and the 15th of each month beginning on October 1, 2008, and continuing until April 30, 2010, and ORDERS the defendant to pay the plaintiff, for the sole benefit of the child Y, the sum of $1579 per month by means of two equal monthly instalments of $789.50 each, payable on the 1st and the 15th of each month beginning on May 1, 2010; [ 6 ] The whole, without costs.

(

s) MARC BEAUREGARD, J.A. (

s) ALLAN R. HILTON, J.A. (

s) MARIE-FRANCE BICH, J.A. Mtre. Miriam Grassby and Mtre. Sylvie Leduc Miriam Grassby et Associés For the appellant Mtre. Sidney Cutler and Mtre. Carol Kljajo Phillips Friedman Kotler For the respondent Date of hearing: April 20, 2010 REASONS OF BICH, J.A. [ 7 ] Should the trial judge have considered or applied the Spousal Support Advisory Guidelines in order to determine the amount of support payable to the appellant by the respondent?

That is the crux of the appeal, although the appellant also raises other questions, relating to, in particular, the partition of the family patrimony and the parties' partnership of acquests. I. Background and trial judgment [ 8 ] The trial judgment reveals the following facts. [ 9 ] The parties married on August 16, 1980, under the regime of partnership of acquests.

They lived together for 24 years, and their union ended on September 8, 2004. [ 10 ] The parties have two sons: the elder, now of full age and self-sufficient, [1] born on ..., 1987; and the younger, still a student, born on ..., 1993. [ 11 ] At the start of the marriage, the appellant, who had a bachelor's degree in commerce, worked and financially supported the respondent, who had a bachelor's degree in biochemistry and, at the time, was beginning medical studies, which he completed in 1984. He then obtained a Ph.D. in 1987.

In 1989, the parties and their elder son left B City for Boston, where the respondent continued his studies in ... while the appellant earned a Certified Public Accountant's diploma. The parties returned to B City in 1992. The respondent became [a specialist] at a ... hospital in that city and a professor at the A University Faculty of Medicine. [ 12 ] When their elder son was still small, the parties agreed that the appellant would stop working in order to devote herself entirely to the family. This seemed necessary because of the substantial demands the respondent's profession made on his time.

In any event, the appellant, in giving up her own career, was without a doubt the one who primarily saw to the children's education and care, while providing constant conjugal and family support to the respondent, whose career was—and still is—flourishing, both as a physician and researcher. In 2002, however, the appellant re-entered the workforce three days a week as a CPA. She still holds that job, which pays her a salary of $45,150. [ 13 ] On March 23, 2005, a few months after the parties' separation, the appellant instituted divorce proceedings.

On June 16, 2005, the parties settled the issue of interim relief amicably. Their agreement, which was duly homologated, provided for, in particular, the custody of the parties' younger son (the elder son was soon to be of full age), the respondent's access rights, and the payment of monthly support by the respondent in the amount of $2500 for the children and $3000 for the appellant herself, retroactively to April 1, 2005.

It also stipulated that the respondent was to pay a $10,000 provision for costs to the appellant "under reserve of DEFENDANT's right to request its imputation out of the PLAINTIFF's share of the Partnership of Acquests". [2] [ 14 ] The trial judge heard the case on May 20, 21, 22, 26, and 27, 2008, and rendered judgment on September 30, 2008.

He granted the parties' divorce, awarded custody of the younger son to the appellant, settled the question of the respondent's access rights and, having established the respondent's income at $363,000, ordered him to pay support of $1650 a month to the appellant, for the benefit of the two children (the elder son, still a student at that time, was living primarily at his mother's). The judge took note of the respondent's commitment to pay the children's tuition fees.

In addition, various orders set forth the (equal) partition of the family patrimony (in particular, the family residence, declared to belong to the appellant on payment of $183,806 to the respondent) and of the partnership of acquests. Lastly, the judge ordered the respondent to pay the appellant, retroactive to the date of the divorce proceedings, support in the amount of $4750 a month, or $57,000 a year. Note that the appellant's annual income, taking into account the support and her salary of $45,150, will amount to $102,150.

Given the retroactivity of the judge's order, arrears of approximately $43,000 were paid by the respondent.

[ 15 ] The judge did not award a compensatory allowance or a lump sum. Finally, he ordered that the provision for costs paid by the respondent at the interim stage pursuant to the agreement of June 16, 2005, be subtracted from the appellant's share of the dissolution of the partnership of acquests. [ 16 ] The appellant appeals and, as shown by the inscription in appeal, she contests the calculation of child support and various aspects of the orders relating to the partition of the family patrimony and the partnership of acquests.

She also contests the judgment as regards a compensatory allowance or a lump sum and, similarly, the amount of spousal support. There were a total of ten grounds of appeal. [ 17 ] At the hearing of April 20, 2010, the Court was informed that, given the changes in the children's situation since the institution of divorce proceedings, and even since the trial judgment, the parties henceforth agreed on the support to be paid by the respondent, in accordance with the applicable ranges, for the remaining dependent child of whom the appellant still had custody.

The amount of the support is $1579 or $1688, depending on whether we accept the trial judge's finding or the appellant's contention regarding the respondent's income. In either case, it is understood that the support does not include the tuition fees of the child in question, who currently attends A school. The tuition fees are in addition to the support and are defrayed solely by the respondent, as indicated in paragraph [124] of the conclusions of the trial judgment.

The Court's judgment will include a conclusion in keeping with the parties' agreement regarding the amount of support, and based on the ruling regarding the respondent's annual income, which will be discussed later on, in paragraph [82] infra . II. Analysis [ 18 ] As a preliminary observation, it is worth noting that the appellant did not file in the appeal book all of the evidence adduced before the trial judge.

Article 507 CCP prescribes the following: 507. The parties set out in their factum the subject at issue, their pretensions and conclusions. Each party must attach to his factum a copy of the documents and extracts from the evidence that are necessary to determine the questions at issue . The appellant must also attach to his factum copy of the proceedings of the joined issue, the judgment appealed from and, where that is the case, the notes filed by the judge or, if they were given orally, the transcription or the translation of the reasons of the judgment .

The factums must be prepared in the manner provided by the rules of practice. They may be prepared and filed in computerized form in whole or in part provided it is agreed by all parties and authorized by a judge of the Court of Appeal [Emphasis added.] 507. Les parties exposent dans leurs mémoires l'objet du litige, leurs prétentions et leurs conclusions. Chacune doit joindre à son mémoire une copie des pièces et les extraits de la preuve nécessaires à la détermination des questions en litige .

L'appelant doit, de plus, joindre à son mémoire copie des actes de procédure de la contestation liée, du jugement frappé d'appel et, le cas échéant, des notes produites par le juge ou, s'ils ont été donnés oralement, de la transcription ou de la traduction des motifs du jugement. Les mémoires doivent être préparés en la manière prévue par les règles de pratique. Ils peuvent, en tout ou en partie, être préparés et produits sur un support informatique si toutes les parties y consentent et qu'un juge de la Cour d'appel l'autorise. [ 19 ]

Section 65 of the Rules of the Court of Appeal of Québec in Civil Matters stipulates as follows:

65. Schedules

(1) The factum of the appellant shall include three schedules: . . .

Schedule III It shall include only those exhibits and depositions or extracts therefrom that are necessary for the consideration of all the issues in dispute .

(2) The parties may agree on a joint statement of the facts necessary to resolve the issues in dispute, rather than relying on the transcripts of the depositions and the exhibits. The joint statement shall be inserted at the beginning of

Schedule III.

(3) The schedules to the respondent's factum shall include only those elements that are necessary for the consideration of the issues raised in the incidental appeal, if there is one, and that are not already included in the appellant's factum . [Emphasis added.] 65. Les annexes

(1) Le mémoire de la

partie appelante comporte trois annexes : . . .

ANNEXE III Elle comprend les seules pièces et dépositions ou les seuls extraits de pièces ou dépositions nécessaires à l'examen de toutes les questions en litige .

(2) Les parties peuvent se mettre d'accord sur un exposé conjoint des faits nécessaires à la solution des questions en litige au lieu d'avoir recours à la transcription des dépositions et aux pièces. Cet exposé est alors inséré au début de l'annexe III.

(3) La

partie intimée ne retient dans les annexes de son mémoire que les éléments nécessaires à l'examen des questions posées, le cas échéant, par son appel incident et qui ne sont pas inclus dans le mémoire de la

partie appelante . [ 20 ] Certain litigants, interpreting these provisions narrowly, believe that all it takes to comply with them is to file only those extracts (sometimes even fragments thereof) of the documentary and testimonial evidence that support the viewpoint they defend in their factum. That

interpretation is incorrect and unfortunately is not without consequences on the outcome of the appeal. [ 21 ] Litigants who wonder what they should attach to their factum under

Schedule III must ask themselves the following question: What does the Court need in order to adequately resolve the issues in dispute? The point, then, is to answer that question from the standpoint of the needs of the Court , not solely from the perspective of the party represented by a given litigant. For example, someone who affirms that the trial court incorrectly assessed the evidence as a whole has a vested interest in submitting it all in a

schedule to his or her factum. Similarly, if the trial court is criticized for making errors in assessing the testimony of a particular witness, it is reckless to file only excerpts of that testimony (which could suggest an attempt to hide what else the witness may have said that could contradict the hypothesis put forward in appeal). [ 22 ] The Court's case law is consistent on this point. [3] [ 23 ] The burden of reproducing all of the evidence required by the Court to resolve a dispute rests first and foremost on the appellant's shoulders.

If the appellant does not reproduce all of the evidence (either the appellant reproduces nothing or reproduces only insufficient extracts), the respondent is not required to compensate for that failure, but may decide to do so by taking the initiative of reproducing the balance of the necessary evidence. [4] In the first case, the respondent may thereby obtain a dismissal of the appeal. In the second case, the respondent will make it possible for the Court to rule on the merits with full knowledge of the facts.

It is a strategic choice for the respondent. [ 24 ] In the present case, the appellant took the risk of reproducing only certain portions of the evidence, which the respondent chose not to complete. Consequently, a number of exhibits were not reproduced. The appellant's testimony does not appear in full in the appeal book, although her counsel attempted to partially remedy that situation by sending the Court, after the appeal hearing, a letter to which the transcript of her client's cross-examination of May 20, 2008 was attached.

The letter and attachment, which the respondent opposed and which were not authorized by the Court (whose leave was not solicited by means of a motion as required), was inappropriate and inadmissible. That said, its content is not likely to influence the outcome of the appeal. In addition, the appellant's testimony of May 26, 2008, is not in the record. Nor is her testimony of May 27 (which, according to the minutes of the hearing, was extremely short). Also missing are the first part of the respondent's May 21, 2008 examination (apart from a few pages) and the testimony of Mr. A.

G. [ 25 ] Given that the appeal bears essentially on questions of fact and that most of the grounds of appeal—except the ground concerning the support to which the appellant is entitled—are briefly developed, the incompleteness of the evidence reproduced in the appeal book will understandably mean greater caution on the part of the Court. [ 26 ] Let us now examine the nine grounds raised by the appellant and still in dispute. I will study them in the order in which they are presented in her initial factum.

1. Unequal partition of the family patrimony [ 27 ] The appellant criticizes the trial judge for not ordering the unequal partition of the family patrimony, particularly as regards the family residence, of which she should have been granted full ownership. In the appellant's view, that would have been the way to remedy the bad faith of the respondent, who, throughout the proceedings, sought to hide his true income and generally mislead the Superior Court as to his personal finances.

"This recurring bad faith made it truly impossible to know what Respondent's real situation was and, because he attempted to mislead the Court and Appellant, it is appropriate that an unequal partition of the family patrimony be granted", she wrote in paragraph 33 of her initial factum. [ 28 ] It should be emphasized, in passing, that the appellant's motion to institute proceedings does not call for the unequal partition of the patrimony, nor was this requested at trial.

It appears, from the respondent's factum, [5] that the idea of such a partition was first raised in arguments before the Superior Court, no doubt because of the bad faith the appellant said the respondent demonstrated throughout the trial. Be that as it may, the absence of a request in that regard in the motion to institute proceedings or during the trial likely explains why the judge did not rule explicitly on the matter, although he implicitly rejected the suggestion by ordering that the family patrimony be partitioned equally.

In any case, it is understood that this was not the main thrust of the appellant's arguments. In fact, it is still not so in appeal, where the focus is primarily on the issue of support and the application of the Spousal Support Advisory Guidelines , which will be discussed later . [ 29 ] That said, should the family patrimony be partitioned unequally in this case? [ 30 ]

Article 422 C .C.Q. allows for an exception to be made to the principle of equal partition of the family patrimony, in the following circumstances: 422. The court may, on an application, make an exception to the rule of partition into equal shares, and decide that there will be no partition of earnings registered pursuant to the Act respecting the Québec Pension Plan (chapter R- 9 ) or to similar plans where it would result in an injustice considering, in particular, the brevity of the marriage, the waste of certain property by one of the spouses, or the bad faith of one of them. 422.

Le tribunal peut, sur demande, déroger au principe du partage égal et, quant aux gains inscrits en vertu de la

Loi sur le régime de rentes du Québec (chapitre R-9 ) ou de programmes équivalents, décider qu'il n'y aura aucun partage de ces gains, lorsqu'il en résulterait une injustice compte tenu, notamment, de la brève durée du mariage, de la dilapidation de certains biens par l'un des époux ou encore de la mauvaise foi de l'un d'eux. [ 31 ] The judgment clearly shows that the trial judge did not accept the appellant's contentions about the injustice that would result from equal partition of the patrimony given the respondent's alleged bad faith.

A reading of the appeal book (which reproduces only part of the documentary evidence and does not reproduce all of the testimonial evidence) precludes any other conclusion. Nothing in the evidence justifies finding, on a balance of probabilities, that the respondent tried to hide money or property, or to mask his true income, or that he acted in bad faith in that respect. [ 32 ] All of the appellant's arguments on the subject are pure questions of fact.

In such cases, the Court's intervention is warranted only if it is established that the trial judge committed a palpable and overriding error in assessing the facts or in his or her inferences drawn from those facts. As stated by the Court in P. L. v. Benchetrit , [6] per Morissette J.: [ TRANSLATION ] [24] . . . It follows from this that no purpose is served on appeal by affirming, without being more specific, that a finding of fact [ TRANSLATION ] “is contrary to the whole of the evidence”. And claiming that something is “palpable” does not make it so.

In my view, this is how we must understand what Fish J. was saying when he wrote the following in H.L. v. Canada (Attorney General) : [ references omitted] The “palpable and overriding error” standard, apart from its resonance, nevertheless helps to emphasize that one must be able to “put one’s finger on” the crucial flaw, fallacy or mistake. In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error” (Tanel, at p. 223, dissenting, though not on this issue).

To “put one’s finger on” means something other than inviting the Court to take a broad look at all the evidence: it means to direct its attention toward a determined point where an unequivocal evidentiary element is quite simply an obstacle to the impugned finding of fact.

If that finding of fact, which has, in that way, been shown to be clearly wrong, sufficiently compromises the disposition of the judgment, then the error will be regarded as determinative and will justify reversing the judgment. . [ 33 ] An error of this kind has not been shown here. [ 34 ] I would add that the appellant's arguments do not meet the requirements set out by case law relative to

article 422 C .C.Q. In M.T. v. J.Y.T. , [7] the Supreme Court of Canada, per LeBel J., explained as follows: [25] The interpretive approach to be taken in applying art. 422 must always be consistent with the objective of the family patrimony, that is, to create an economic union between the spouses. Such an approach will enable the court to determine what circumstances might result in an injustice within the meaning of art. 422. Those circumstances must be related to the success or failure of the economic

partnership between the parties. It must be determined whether, by their actions or conduct during the marriage, the spouses defaulted on their fundamental obligation to contribute to forming and maintaining the family patrimony: Since 1989, Quebec’s droit commun has renewed its faith in the moral postulate, consecrated elsewhere in Canada by way of the remedy of the constructive trust and the legislative schemes built thereupon, that marriage is a joint economic endeavour to which both spouses are bound to contribute as best they can.

The spouse who has not made the contribution, in property or in services, called for by the very nature of marriage has violated the fundamental economic covenant upon which marriage itself is founded. Conduct is thus relevant at divorce but only insofar as it reveals this abuse of confidence in marriage whereby a spouse has failed to treat family life as a financial partnership.

Accordingly, the Civil Code allows a judge — presiding over a veritable civilian court of conscience — to depart from equal "partition" of the net value of the family patrimony when a spouse comes to partition with unclean hands for having failed to contribute to the joint economic endeavour. (Kasirer, at p. 572) [26] In this respect, it might be asked what the words "bad faith" mean in the list in art. 422. Once again, the concept of "bad faith", although it is very flexible, must be interpreted in light of the general context in which it is used. Here, it is economic in nature.

It does not relate to an assessment of morality or of the quality of the spouses' married life (Kasirer, at p. 590). [27] The brevity of the marriage, which is referred to in art. 422, often has a direct economic impact. The length of the union has an impact on the establishment and consolidation of the economic partnership. Waste or mismanagement can also affect the content of the patrimony, or even its very existence ( Droit de la famille — 1953 , J.E. 94-552, SOQUIJ AZ-94011386 (C.A.) ; M.G. v. A.B. , J.E. 2002-1013, SOQUIJ AZ-50128166 (C.A.) , aff’g [2001] R.D.F. 556 (Sup.

Ct.) ; Droit de la famille — 1395 ). [28] The court must consider the parties' conduct and relative contributions from the standpoint of their economic impact on the family patrimony, not their impact on the happiness of their life together, although specific actions can affect all aspects of the conjugal relationship. When cited as a source of injustice within the meaning of art. 422, harmful or wrongful acts, or faults, committed by the spouses must be clearly connected with the fate of the family patrimony. They must, in a word, be in the nature of economic faults (Kasirer, at p. 593). E.

Unequal partition not warranted [29] Thus, any causes of injustice that are ascribed to a spouse must be analysed from the standpoint of their impact on the patrimony. This rule holds true where spousal misconduct is alleged, as such misconduct must correspond to an economic fault that is connected with performance of the obligation to contribute. From this standpoint, the Court of Appeal’s application of art. 422 was inconsistent with the limits placed by the legislature on the courts’ power to order unequal partition.

This conclusion flows from the reasons invoked by the Court of Appeal for excluding the respondent’s pension credits from the partition of the family patrimony. [ 35 ] The appellant has not shown here that the respondent defaulted on his fundamental obligation to contribute to forming and maintaining the family patrimony . 2. Deduction of the adjusted value of a gift from the appellant's father, in accordance with

article 418 C .C.Q. [ 36 ] The appellant devoted a single paragraph to this ground, which, it will be noted, does not appear in the inscription in appeal, any more than it did in the motion to institute proceedings or, insofar as it may be understood, in the proposal for partition of the family patrimony and acquests that she filed through counsel during arguments before the Superior Court. [8] In theory, the Court should therefore not consider this ground of appeal, which is inadmissible. [ 37 ] That said, the appellant merely affirmed, without explaining in what way, that the judge was mistaken in not making this deduction, purported to be equal to the amount the appellant's father is said to have invested in the purchase of the parties' family residence, taking into account the adjusted value. [ 38 ] At most, that investment was indirect because the parties, as shown by Exhibit P-39, bought the residence (in 1998) not from the appellant's father but from her sister and brother-in-law, who themselves had acquired it from a third party and resold it for $1 and other considerations, such as assuming the hypothec affecting the immovable at the time.

It is important to mention that the parties had been living in the house since 1992 and paid all of the expenses. The evidence reproduced in the appeal book does not show that the indirect gift from the appellant's father, if it was indeed a gift within the meaning of

article 418 C.C.Q. , was for her use exclusively rather than the couple's, [9] the evidence being otherwise insufficient and not conducive to allowing the claim even had it been admissible. 3. Refusal by the trial judge to transfer half of the respondent's shares in A Company [ 39 ] Did the judge err by refusing to transfer to the appellant half of the 7,950,000 shares held by the respondent in A Company? [10] That is what the appellant was claiming at trial. The judge instead chose to split the value, established at $79.50 (on the basis of $0.00001 per share).

For her part, the appellant assesses the shares at $1,828,500 (on the basis of $0.23 per share). She asked the Court to order the respondent to transfer half the shares (3,975,000) to her or, if he preferred, to pay her their value, on the basis of $0.23 per share ($914,250). [ 40 ] Here is what the judge wrote about partitioning the shares, which are the acquests of the respondent: [ TRANSLATION ] [31] The principal issue is the evaluation of the shares held by the defendant in his medical research company. The plaintiff argues that the Court should assign a value of $1,800,000 to his shares.

At the same time she acknowledges that if the defendant were to offer his shares for sale, he would be unable to obtain that sum. She bases her claim, nevertheless, on the testimony of a company representative, who stated that at the date on which he testified at the trial, that is, on May 21, 2008, the shares were trading at $0.23. Since the defendant holds 7,950,000 shares, their value would be approximately $1,800,000.

[32] That being said, even if it were possible, the plaintiff does not wish to have half of his shares transferred to her. She asks, however, the Court to take the value of $1,800,000 into account in deciding whether or not to grant a lump-sum payment. The plaintiff argues that at her age she is entitled to live in a house that has been fully paid off. . . . [35] The defendant points out that support must be determined based on numerous criteria, including more particularly the parties' means and needs.

With respect to his own means, the defendant denies that the shares he holds in his company could be worth $1,800,000. He points out that the parties acknowledged that the evaluation of the property in the family patrimony must be determined as at the date of the separation, that is, September 8, 2004. [36] There is no evidence that the shares of the company were worth more on that date than their par value of $0.01 per share.

The defendant points out that the plaintiff herself filed [reference omitted] the share certificate as well as the very first resolution of B Company, which indicated that the defendant had presented a cheque for $79.50 in payment of his 7,950,000 shares at $0.01 each. Those same documents show that the company was formed by five shareholders, including A University. According to these incorporation documents the defendant holds 39.75% of the shares, while his principal partner holds 41%.

A University holds 5% of the shares. [37] In rebuttal to the plaintiff's claims, the defendant argues that the Court cannot take into account a business proposal [reference omitted] dating from August 2004, since the proposal was never acted upon and no transaction ever occurred. The defendant points out that the proposal included numerous conditions that could have derailed the transaction even if the shareholders had wanted to proceed on it.

The defendant refers in particular to paragraphs 7, 8, 11, 12, and 14 of document P-44. [38] The defendant adds that the plaintiff herself, in presenting her evidence, called as a witness a company representative, who revealed that the business had been losing money for three years and that he did not expect it to begin turning a profit for at least another five years.

The defendant argues that even if he wanted to sell his shares today, he would be very unlikely to find a buyer. . . . [101] As for the dissolution of the partnership of acquests, the principal dispute concerns the value of the shares the defendant holds in B Company. According to the plaintiff these shares have a market value of at least $1,800,000. She acknowledges nonetheless that this is the value at the date of the trial [reference omitted].

The plaintiff also admits that the value is somewhat theoretical, since the defendant would be unlikely to obtain that amount if he wished to sell them. [102] The Court is of the opinion that these shares have a par value of no more than one cent per share, for a total of $79.50. Counsel for the plaintiff filed an e-mail that Mr. A. G. sent her on May 16, 2008, [reference omitted] indicating that the value of the shares is $79.50. The Court also refers to the incorporation documents filed as Exhibit P-45.

Finally, the Court cannot rely on the document filed as Exhibit P-44, since it was merely a proposal that was never acted upon. [103] It should be noted that the principal asset of this company, which specializes in medical research, is the defendant's knowledge and expertise. If he were to sell the company or leave it, it would lose one of its principal assets. Moreover, the Court notes that according to Mr. A. G., the company has been operating at a loss since it was formed. The plaintiff has therefore failed to show that the shares have any value.

Their value may some day increase, but this is pure speculation for the moment. [ 41 ] There are two errors in these excerpts, neither of which is determinative. First, in paragraph [102] above, the judge considers each share to be worth "one cent", but it is actually a fraction of a cent, specifically, $0.00001. This is a typographical error, however, given the total value ascribed by the judge to the said shares ($79.50).

Indeed, the shares are worth nothing or next to nothing. [ 42 ] Second, contrary to what the judge indicated in paragraph [32], the appellant most definitely wanted half of the shares to be transferred to her, and this is what she claimed at trial. That said, the judge could not have complied with that request, so the outcome of the dispute on this point is unchanged. [ 43 ] Indeed, the shares at issue are part of the partnership of acquests, subject to partitioning as provided for in

article 481 C .C.Q. : 481. Once the settlement of compensation has been effected, the net value of the mass of acquests is established and evenly divided between the spouses. The spouse who holds the patrimony may pay the portion due to the other spouse by paying him or her in money or by giving in payment. 481. Le règlement des récompenses effectué, on établit la valeur nette de la masse des acquêts et cette valeur est partagée, par moitié, entre les époux.

L'époux titulaire du patrimoine peut payer à son conjoint la part qui lui revient en numéraire ou par dation en paiement. [ 44 ] Thus, under this provision, the partition of the acquests is done according to value, not in kind, unless one of the former spouses wishes to proceed by giving in payment, which is not the case here.

In other words, and as explained by LeBel J.A. in Droit de la famille – 3258 (majority opinion): [11] [ TRANSLATION ] What we are left with now is the problem of the drafting of the order rendered by Mireault J. as regards the portion of the pension credits included in the partnership of acquests but not in the family patrimony.

Article 420 C.C.Q. confers on the court the power to order the partition of the family patrimony. The solution is different with respect to the partnership of acquests.

Article 481 C .C.Q. provides for its partitioning method. Acquests are evenly divided. The spouse who holds the patrimony in question may pay the portion due to the other spouse by paying the latter in money or by giving in payment, and that choice is always his or hers to make. Once the settlement of compensation has been effected, the net value of the mass of acquests is established and evenly divided between the spouses. Thus, the

spouse who holds the patrimony may pay the portion due to the other spouse by paying the latter in money or by giving in payment. Taking into account solely the Civil Code of Québec ,

article 481 C.C.Q. tells us that property is not partitioned in kind. Rather, values and a claim are established, with the claim being paid in accordance with the method chosen by the spouse holding the patrimony and debtor of the debt. Consequently, the Superior Court issued an order that is not expressly authorized by the relevant provisions of the Civil Code of Québec , despite the practicality of the solution and the respondent's concerns about the difficulties with executing the judgment. [12] [ 45 ] That alone settles the question.

The value of the shares must be divided and the respondent, who does not wish to proceed with a partition in kind, cannot be compelled to do so by the Court. Consequently, he is the debtor of a debt owing to the appellant equal to half of the value of the shares and the debt is payable in money. All that remains is to determine the exact quantum. [ 46 ] There is no reason to reverse the trial judgment on this point, since the appellant did not demonstrate a palpable and overriding error in this regard.

The company in question has always run a deficit—quite a substantial one—regardless of whether the date of the partition (and hence the evaluation date of the shares) is that on which the application was brought (principle under the second paragraph of a 465 C .C.Q. ) or that on which the spouses ceased to live together (a possibility under a 466 C.C.Q. ), or even the date of the trial, supposing that this possibility may be envisaged. As may be inferred from the evidence reproduced in the appeal book, this situation is not likely to change any time soon.

In terms of market value, the shares are not worth much, which was noted by the judge, who decided they were not even worth the highly theoretical 23 cents at which they were listed on the stock exchange on the date of the trial. The appellant's rather brief arguments cannot convince otherwise. The affirmation that a business proposal prior to the date on which the spouses ceased to live together and prior to the divorce proceedings may have had an impact on the value of the shares or showed the value at the time cannot be accepted, since the proposal was not acted upon.

Also to be taken into account is the fact that Mr. A. G.'s testimony, which the judge relied on, was not reproduced in the appeal book. To intervene in these circumstances would be dangerous to say the least; in any case, it is not warranted. 4. Respondent's bad faith and application of

article 471 C .C.Q. [ 47 ]

Article 471 C.C.Q. states the following: 471. A spouse who has misappropriated or concealed acquests, wasted acquests or administered them in bad faith forfeits his or her share of the acquests of the other spouse. 471.

Un époux est privé de sa part dans les acquêts de son conjoint s'il a diverti ou recelé des acquêts, s'il a dilapidé ses acquêts ou s'il les a administrés de mauvaise foi. [ 48 ] The appellant, alleging bad faith on the part of her former spouse, who she says tried to hide large amounts in a safety deposit box, is seeking to keep all of her acquests: "This would mean that she should not have to share her $110,436 share of the monies held at Notary France Sauvé’s". [13] That amount represents half the proceeds from the sale another residential immovable that is part of the parties' property and acquests. [ 49 ] The judgment does not expressly discuss

article 471 C .C.Q. , but it shows that preference was given to the equal partition option, in accordance with the common principle. Bad faith, concealment, and attempt to conceal (waste not being at issue here) on the part of the respondent cannot be inferred from the judgment.

The judge clearly believed the respondent's explanations, which he recounted as follows in paragraph [39] of the judgment: [ TRANSLATION ] [39] As for the fact that a seizure before judgment made on behalf of the plaintiff revealed the presence of a cash amount of approximately $100,000 in a safety deposit box, the defendant denies that he wanted to hide the sum. He maintains, moreover, that he would never have listed the address of the family residence if he had wanted to hide the sum from his wife.

He never changed the address listed with the bank after the date of the separation, even though he knew quite well that the bank could send information concerning the safety deposit box to that address. [ 50 ] The contents of the safety deposit box were mostly divided by the judge, with the exception of certain elements that were not part of the acquests (see infra ). [ 51 ] In my opinion, the trial judge's finding, which is essentially one of fact and credibility, is warranted and nothing in the appellant's arguments allows the Court to overturn it. 5.

Inclusion in the partnership of acquests of the respondent's claim respecting his brother [ 52 ] The appellant contends that "[t]he trial judge should have ratified Respondent's admission that the $25,000 loaned to his brother was to be shared". [14] [ 53 ] According to the evidence reproduced in the appeal book, the respondent was in fact temporarily the creditor of his brother, in the fall of 2004, after the parties' separation. The respondent affirms that the debt was repaid and that the amount was then put in the safety deposit box.

It is logical to conclude that it is included in the amounts found in the box. In fact, when the subject of the partition of the contents of the safety deposit box came up again at the trial, the following exchange took place between counsel for the appellant and the respondent: Q- Dr. K., I have just two (2) questions. A- Sure.

Q- I understand that what you're asking the Court with regard to the monies which are held in the safety deposit box is that you are prepared to give half of everything that's there, with the exception of the forty-six thousand (46,000), which you said was put in after the separation? A- Correct, and except the euros. Q. And except the euros. A- Right. Q- But the twenty-five thousand dollars ($25,000) which was paid . . . A- Yes, that's fine. Q- . . . that's in there?

A- That's fine. [15] [ 54 ] The respondent therefore agreed to partition that amount as well, along with the rest of what was in the box (save the exceptions stated in the above exchange). Contrary to what the appellant appears to contend, there is no contradiction between claiming that the amount was reimbursed and put in the safety deposit box, and agreeing to partition the amount.

Nor does so agreeing imply an acknowledgment that the debt is still owing (whereas the respondent affirms that it was in fact repaid). [ 55 ] Clearly, and even though he did not really explain why, the judge did not accept the appellant's viewpoint and proceeded with the partition of the amounts in the safety deposit box, with the exception of the euros, which the judge felt belonged to the respondent's mother.

On the basis of the table in paragraph [104] of the trial judgment, the judge included in the respondent’s acquests all the Canadian bills found in the box ($104,400, that is, the total of all the bills inventoried in Exhibit P-10 [16] ), which included the amount relative to the repayment of the debt of $25,000.

The judge also took into account the US$12,356 [17] deposited in the box (which appears, however, to have been partitioned in Canadian dollars, a mistake which the appellant did not mention, understandably so, given the rather small difference overall). [ 56 ] Finally, it should be mentioned that the judge apparently did not subtract from the amount found in the safety deposit box the $46,000 that the respondent contended was not an acquest (see the excerpt from the respondent's testimony, reproduced in paragraph [53] supra ). [ 57 ] Overall, there is nothing to review in this regard and nothing in the evidence adduced by the appellant that demonstrates that the judge committed an error warranting that the Court intervene in this case. 6.

Credit card expenses [ 58 ] Regarding the debts included in the partnership of acquests, in his calculations, the judge took into account the respondent's CIBC Aerogold Visa credit card account statement for the period from August 23, 2004, to September 22, 2004. [18] The statement, in the amount of $8857.59, contains a number of entries subsequent to September 8, 2004 (date on which the parties ceased to live together), totalling $6605.88. [ 59 ] The Court understands from the judgment that the acquests were partitioned as at the date on which the parties ceased to live together, as permitted under

article 466 C.C.Q. Although it is the most plausible hypothesis, it is impossible to make this finding with absolute certainty on the basis of the judgment, the parties' factums, or the evidence reproduced in the appeal book. Had it been otherwise, the judge would have taken account of the loan contracted by the appellant in February of 2005, before the divorce proceedings were instituted, which he did not do. Moreover, for the purposes of the partition of the family patrimony, the parties chose the date on which they ceased to live together.

It may be inferred from all of this that they likely made the same choice with regard to the partition of the partnership of acquests. [ 60 ] That being so, the judge should not have taken account of the entries subsequent to September 9, 2004, on the respondent's statement of account (including credit, interest, and administrative charges), totalling $6605.88. The trial judgment should be corrected in this regard, by rectifying the entry in the table in paragraph [104] of the judgment by replacing the figure of $8857.59 (Debts, Visa CIBC line) with the figure of $2251.71 (that is $8857.59 – $6605.88). 7.

Compensatory allowance or lump sum [ 61 ] Rather surprisingly, the trial judge did not discuss the appellant's substantial requests concerning a compensatory allowance and lump sum (although he mentioned them). He did not grant the requests, however, and one concludes that he implicitly came down on the side of the respondent, who contested the appellant's right to either amount. [ 62 ] The appellant wrote this in paragraph 45 of her initial factum: 45. The facts revealed that Appellant will have to pay Respondent approximately $183,806 ( a.f., vol. II, p. 598 ) for his share of the family residence.

Despite her share of the partnership of acquests, Appellant testified that were she not to be granted a compensatory allowance or a lump sum amount, she would have to mortgage the home for $181,212 to pay Respondent for his share of the family residence or pay her debts ( a.f., vol. II, p. 594 ), depending on how the matter is viewed. We submit that the trial judge erred when he did not apply any one or a combination of the remedies available to have permitted Appellant to be attributed Respondent's share of the family residence at no cost.

In addition to the possibility of having granted an unequal partition of the family patrimony due to Respondent’s bad faith, the trial judge could have applied the principles of compensatory allowance pursuant to the Civil Code or of a lump sum pursuant to the Divorce Act .

[ 63 ] It is also interesting to consider the conclusions in the appellant's initial factum. Those conclusions do not appear, at least not in so many words, in the inscription in appeal, but they are revealing of the appellant's intention: With regard to the Appellant's request for the unequal division of the family patrimony, compensatory allowance, and or lump sum: ORDER the unequal division of the family patrimony and allow Appellant to become the sole owner of the family residence without payment to Respondent.

Were this Honourable Court not to order the unequal division of the family patrimony, ORDER Respondent to pay an amount of $200,000 to Appellant or if he prefers ALLOW Respondent to transfer his share of the family residence whether as a compensatory allowance or a lump sum to Appellant. [ 64 ] In requesting a compensatory allowance or a lump sum, the appellant thereby seeks to obviate the fact that, further to the equal partition of the family patrimony and considering her firm intention to remain the sole owner of the family residence, she has to pay to the respondent the value of his share in the immovable. [ 65 ] It must be said that, in practice, the financial situation complained of by the appellant, who would prefer not to have to share the value of the family residence with the respondent, stems in part from the fact that she went heavily into debt subsequent to the breakdown of the marriage, in particular to pay the extrajudicial fees of her successive attorneys (which total approximately $90,000, not including the post-hearing requests of the trial judge and the appeal, according to paragraph 28 of the initial factum).

That indebtedness increases the burden that the obligation to pay the respondent half the value of the family residence, of which she wishes to remain sole owner, represents for her.

She was granted sole ownership of the family residence by the trial judge. [ 66 ] The appellant contends that her post-separation debts are due largely to the insufficiency of the support she received during the divorce proceedings in accordance with the agreement she reached with the respondent on June 16, 2005, thereby justifying her claim for a compensatory allowance or a lump sum. [ 67 ] However, the purpose of the compensatory allowance governed by

article 427 C .C.Q. or of the lump sum permitted under the Divorce Act , is not to remedy the "inconvenience" resulting from an equal partition of the family patrimony. [ 68 ] A compensatory allowance is not in the nature of support and is intended to " mitigate the injustices produced by the implementation of a freely adopted matrimonial regime, by making it possible to compensate a spouse who has enriched the patrimony of the other spouse by his or her contribution of goods or services" [19] and, in so doing, impoverished himself or herself, [20] which is not the case here.

In addition, as previously written by our Court, the right to a compensatory allowance is assessed as at the date of the parties' separation. See B.M. v. A.D. : [21] [ TRANSLATION ] [2] The parties are separated and have been involved in divorce proceedings since April of 2001. In application of the rules set forth by the Supreme Court of Canada in M. (M.E.) v. L.(P.) [footnote omitted], the right to a compensatory allowance is assessed at the time of the parties' separation, since the appellant cannot claim to have contributed to the enrichment of the respondent subsequent to that period.

Consequently, the conclusion that the financial statements subsequent to the separation are relevant cannot be made on the basis of any particular fact in the case. [22] [ 69 ] Insufficient support during the proceedings (if indeed it was insufficient) is therefore not to be settled by the granting of a compensatory allowance, but, rather, by the granting of adequate support (I will come back to this).

Debts subsequent to the date on which the right to a compensatory allowance is to be assessed—debts that are said to be the result, moreover, of the payment of insufficient support—do not warrant the granting of such an allowance. [ 70 ] The appellant also argues that, if the deduction in paragraphs [36] and [38] supra , said to be based on

article 418 C .C.Q. , is not made, the Court should consider, for the purpose of granting a compensatory allowance, the generosity of the respondent's in-laws, who allowed him to live at very little expense in what would become the family residence. [23] That argument cannot be accepted. Even supposing the appellant's father, as well as her sister and her sister's husband, have indeed been generous to the parties, it could hardly be the basis for a compensatory allowance within the meaning of

article 427 C.C.Q. [ 71 ] In short, given the partition of the patrimony and the partnership of acquests, [24] the appellant has not shown here what, under the applicable rules, would warrant the granting of a compensatory allowance. [ 72 ] Nor has the appellant established that she is entitled to a lump sum within the meaning of the Divorce Act , an amount she is claiming here essentially to sidestep the effects of the partition of the family patrimony and especially of the family residence.

A lump sum is intended as a support measure [25] and, given the manner in which I suggest that the Court rule on the matter of support, the appellant's request in this respect must be dismissed. 8.

Provision for costs [ 73 ] Clause 8.3 of the agreement entered into by the parties at the interim stage stipulates the following: [26] 8.3 The DEFENDANT shall pay unto PLAINTIFF's Attorney a Provision for Costs in the sum of $10,000.00 payable on the 27 th of June 2005, the said Provision for Costs re: its imputation will be determined by the Judge on either provisional measures or the merits of the case under reserve of DEFENDANT's right to request its imputation out of the PLAINTIFF’S share of the Partnership of Acquests ; [Emphasis added.] [ 74 ] The judge chose to impute the provision to the partition of the acquests, at the respondent's request:

[ TRANSLATION ] [107] A credit of $10,000 is granted to the defendant concerning payment of the provision for costs, in accordance with the agreement entered into on June 16, 2005. [ 75 ] As explained in footnote 18 relative to paragraph [119] of the conclusions of the judgment, that credit was subtracted by the judge from the amount payable by the respondent to the appellant respecting the partition of the acquests. [ 76 ] The appellant has not established that there is reason to intervene and overturn that determination by the judge. 9. Support for the appellant a.

Preliminary remarks [ 77 ] The appellant's entitlement to support and the respondent's obligation to pay her support are not in dispute. Only the quantum of the support is disputed.

As we have already seen, the judge set this support at $4750 a month retroactively to the date on which the divorce proceedings were instituted. [27] [ 78 ] Basing herself primarily on the Spousal Support Advisory Guidelines , the appellant contends that this support is insufficient, that it forces her to go into debt, and does not enable her to maintain, within reasonable limits, the standard of living she had enjoyed prior to the breakdown of what was, in every respect, a traditional marriage.

She is therefore claiming, as at trial, [28] monthly support of $8500. [ 79 ] The amount thus claimed would be pretty much in the middle of the range resulting from the application of the Advisory Guidelines , according to a calculation based on an annual income of $350,000 for the respondent, and of $45,150 for the appellant. It is important to point out here the following passage from the appellant's additional factum concerning the respondent's income: 50. To illustrate the application of the two formulas in the present matter, we are including two new Aliform schedules.

They both use an income of $350,000 for the Respondent even though his income is in fact higher . The SSAG are meant to be used on annual incomes up to $350,000 after which the Court is to use its discretion as to quantum.

Since the point of this additional factum is to expose and discuss the SSAG, we are restraining our arguments on spousal support to the application of the guidelines and accept that the Court applies the guidelines as if Respondent's income was $350,000 . . . . [Emphasis added.] [ 80 ] To the extent that the quantum of the support is determined based on the Advisory Guidelines , the appellant agrees that the respondent's income be assessed at $350,000 and the calculation be done accordingly.

However, were the Advisory Guidelines not to be taken into account, the appellant would like the support to be calculated on the basis of the respondent's true income. How much is that income? [ 81 ] Part of the debate at trial concerned that question. The judge concluded that the respondent's annual income totalled $363,000. In appeal, in her initial factum, the appellant reiterated that the income was in fact closer to $400,000. [29] [ 82 ] There is no basis on which to conclude that the judge in any way erred by setting the respondent's annual income at $363,000.

The evidence does not show that the respondent hid income or deliberately took steps to reduce it after the separation in an effort to avoid his support obligation. That is in fact what the judge pointed out in paragraph [70] of his judgment, [30] a paragraph which ends with the following sentence: [translation] "The plaintiff makes many insinuations in this respect [the respondent's income], but offers no tangible evidence".

With respect to the appeal book as compiled, that observation is (unfortunately) fully warranted. [ 83 ] In short, depending on whether the Advisory Guidelines are taken into account, an amount of $350,000 or $363,000 will be accepted as the respondent's annual income. [ 84 ] That clarification having been made, the time has come to return to the main issue of the appeal, namely, the use of the Advisory Guidelines to determine support for the appellant. b. Spousal Support Advisory Guidelines [ 85 ] The trial judge did not consider whether or not these advisory guidelines were applicable.

They were invoked by counsel for the appellant during arguments; she was apparently given the January 2005 version of the guidelines (the only one available at the time of the trial, in May of 2008), along with a calculation form. [31] Clearly, the guidelines were not considered in the support determination process [32] or, if they were, they were obviously set aside.

The appellant contends that this is an error that should result in the reversal of the judgment. * * [ 86 ] First, it is important to recall the nature of the Advisory Guidelines . [33] The work of family law professors and specialists Carol Rogerson and Rollie Thompson, respectively of the University of Toronto's Faculty of Law and the Dalhousie Law School, the guidelines were initially proposed in draft form, [34] in 2005, then as a final version, in July of 2008 , [35] with a view to putting, if not order, at least a little more cohesion, into determining the quantum of spousal support, the granting of which, being largely discretionary, has yielded disparate results.

A look at case law is enough to dispel any doubt: the multiple, sometimes contradictory, objectives set forth in

section 15.2 of the Divorce Act , the various theories stemming from the teachings of the Supreme Court, and the infinite variety of each couples' situation, combined with the judge's discretion, meant that there was hardly any science, and perhaps even very little art, involved in the laborious exercise of determining support amounts for former spouses. Thus, after examining the case law, Johanne April, in an

article whose title is as provocative as it is revealing ("Pension alimentaire pour époux : quel est ton signe?" [Spousal

Support: What's Your Sign?] »), pointed out the major differences that exist, under virtually the same conditions, in the awarding of spousal support. [36] [ 87 ] This disparity is often explained and even justified by the eminently personal and subjective aspect of each couple's situation. In Miglin v. Miglin , [37] Justices Bastarache and Arbour wrote the following in this regard: 56 . . . We note too that Parliament’s adoption of broad, and at times competing, objectives for spousal support contrasts with its promulgation of uniform Child Support Guidelines.

The discretion granted to trial judges respecting spousal support also contrasts with the detailed default provision for equalization of matrimonial property set out in s. 5 of the Family Law Act , R.S.O. 1990, c. F.3, and the obligatory regime of the family patrimony in arts. 414 et seq. of the Civil Code of Québec , S.Q. 1991, c. 64.

Therefore, what is "fair" will depend not only on the objective circumstances of the parties, but also on how those parties conceive of themselves, their marriage and its dissolution, as well as their expectations and aspirations for the future . . . . 65 As a starting point, we endorse the reasoning of this Court in Moge , supra , where L’Heureux-Dubé J. held that the spousal support objectives of the Divorce Act are designed to achieve an equitable sharing of the economic consequences of marriage and marriage breakdown.

By explicitly directing the court to consider the objectives listed in s. 15.2(6), the 1985 Act departs significantly from the exclusive "means and needs" approach of the former statute. We note, however, that there is a potential tension between recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and promoting, even if only to the extent practicable, the economic self-sufficiency of each spouse (ss. 15.2(6)(

a) and 15.2(6)( d )). The way to reconcile these competing objectives is to recognize that the meaning of the term "equitable sharing" is not fixed in the Act and will, rather, vary according to the facts of a particular marriage. Parliament, aware of the many ways in which parties structure a marriage and particularly its economic aspects, drafted legislation broad enough that one cannot say that the spousal support provisions have a narrow fixed content.

Contrasted with the former Act, then, these objectives expressly direct the court to consider different criteria on which to base entitlement to spousal support, while retaining the objective of fostering the parties’ ability to get on with their lives . [Emphasis added.] [ 88 ] Thus, each marriage and every break-up is unique, to be examined on the basis of its own specific characteristics, which necessarily entails vast discretionary powers for the judge charged with determining the quantum and duration of support.

That being so, is it possible to devise a method that, while respecting this highly individual reality, would facilitate the process, avoid the stumbling blocks resulting from too much subjectivity, and ensure a degree of cohesion, a degree of parity even, in the judicial determination of support? [ 89 ] That is the problem that professors Rogerson and Thompson hoped to tackle in creating a tool that, while complying with the applicable rules of law (both legislative and jurisprudential rules) and allowing for the various relevant factual elements, would provide for a measure of consistency and predictability in the calculation of the quantum of spousal support without, however, sacrificing the nuances of a process that necessarily entails a strong dose of discretionary assessment.

Their work yielded undeniably interesting results, proposing a method for assessing, within a certain range, the amount and duration of spousal support at the initial determination stage. [38] To some extent, it mathematically conveys the exercise set out in

section 15. 2 of the Divorce Act , through parameters reflecting the various factors and objectives stated in subsections (4) and (6) of that provision, as interpreted by case law. The suggested formula varies depending on whether children were born of the marriage and whether they are still dependents (see infra , para [92]). [ 90 ] It must be pointed out that the Advisory Guidelines are not intended to determine a former spouse's entitlement to support.

They come into play only once entitlement has been established (if it is), in order to facilitate the calculation of the quantum of the support [39] and, as necessary, its duration. As stated by the authors: On its own, a mere disparity of income that would generate an amount under the Advisory Guidelines formulas, does not automatically lead to entitlement .

There must be a finding (or an agreement) on entitlement, on a compensatory or non-compensatory or contractual basis, before the formulas and the rest of the Guidelines are applied. [40] [ 91 ] In regard to the calculation of the support amount, the Advisory Guidelines are based on the core concept of income sharing, [41] a principle purported to enable both the compensatory and the non-compensatory (needs) aspects of spousal support to be taken into account. [42] This idea of income sharing is aimed, for example, at ensuring, to the extent possible, that the former spouse's lifestyle after the marriage breakdown is comparable to that enjoyed during the marriage (principle endorsed by the Supreme Court in Boston v.

Boston [43] and other cases), thereby reflecting the compensatory dimension of support, while taking into consideration the needs and resources of the former spouses. [ 92 ] On that basis, the Advisory Guidelines propose two formulas —one applies when the parties do not have dependent children, and the other applies when they do. The formulas are summarized as follows: In cases where there are no dependent children, the without child support formula applies.

This formula relies heavily upon length of marriage—or more precisely, the length of relationship, including periods of pre-marital cohabitation—to determine both the amount and duration of support. Both amount and duration increase with the length of the relationship. This formula is constructed around the concept of merger over time which offers a useful tool for implementing both compensatory and non-compensatory support objectives in cases where there are no dependent children in a way that reflects general patterns in the current law.

Under the basic without child support formula: ● The amount of spousal support is 1.5 to 2 percent of the difference between the spouses' gross incomes for each year of marriage, to a maximum range of 37.5 to 50 per cent of the gross income difference for marriages of 25 years or more (The upper end of this maximum range is capped at the amount that would result in equalization of the spouses' net incomes—the net income cap.)

● Duration is .5 to 1 year of support for each year of marriage, with duration becoming indefinite (duration not specified) after 20 years or , if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the "rule of 65") . . . . In cases where there are dependent children, the with child support formula applies. The distinctive treatment of marriages with dependent children and concurrent child support obligations is justified by both theoretical and practical considerations and is reflected in current case law.

On the theoretical front, marriages with dependent children raise strong compensatory claims based on the economic disadvantages flowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation . We have identified this aspect of the compensatory principle as it operates in cases involving dependent children as the parental partnership principle , and have drawn on this concept in structuring the with child support formula.

For marriages with dependent children, length of marriage is not the most important determinant of support outcomes as compared to post-separation child-care responsibilities. On the practical front, child support must be calculated first and given priority over spousal support. As well, the differential tax treatment of child and spousal support must be taken into account, complicating the calculations. The with child support formula thus works with computer software calculations of net disposable incomes.

Under the basic with child support formula: ● Spousal support is an amount that will leave the recipient spouse with between 40 and 46 percent of the spouses' net incomes after child support has been taken out . (We refer to the spouses' net income after child support has been taken out as Individual Net Disposable Income or INDI). ● The approach to duration under this formula is more complex and flexible than under the without child support formula; orders are initially indefinite in form (duration not specified) but the formula also establishes durational ranges which are intended to structure the process of review and variation and which limit the cumulative duration of awards under this formula.

These durational limits rely upon both length of marriage and the ages of the children. The with child support formula is really a cluster of formulas dealing with different custodial arrangements. Shared and split custody situations require slight variations in the computation of individual net disposable income, as the backing out of child support obligations is a bit more complicated.

There is also a different, hybrid formula for cases where spousal support is paid by the custodial parent . . . . [44] [ 93 ] The ranges (quantum and duration) calculated under the two formulas, which themselves are underpinned by several parameters (including the income of the former spouses [45] ), can be weighted based on various factors marking possible departures (which the authors call "exceptions"): compelling financial circumstances in the interim support period, debt payment, prior support obligations, illness and disability, the compensatory exception in short marriages without children, special needs of a child, and so on.

Chapter 12 of the Advisory Guidelines focuses on these exceptions. Ranges can also be weighted based on the self-sufficiency criterion, expressly set out under

section 15.2 , subsection (6), paragraph (

d) of the Divorce Act . [46] Lastly, it will be noted that the situation in Quebec is discussed in

Chapter 15 of the Advisory Guidelines : the characteristics specific to Quebec law regarding the spousal support obligation [47] and child support are taken into consideration, as well as the calculation of income, given, in particular, the province's benefit plans. [ 94 ] Through the establishment of ranges, whether weighted or not, it is possible to factor in such considerations as regional differences into income and cost of living, at least to a certain extent. [48] [ 95 ] These guidelines do not aim to exclude or replace the individualized analytical process required under

section 15.2 of the Divorce Act : judges still have discretionary power. It is exercised in determining entitlement to support and, when the time comes, in determining the quantum and duration of support on the basis of the ranges produced by the formulas, as applicable, or in weighting the outcomes.

Simply put, the Advisory Guidelines seek to structure the support determination process so as to minimize the effects of unpredictability and arbitrariness. [ 96 ] Careful consideration of these Advisory Guidelines shows that they are carefully drawn up and convincing, the polar opposite of a recipe that is applied unthinkingly. The tool is solid, and creative, founded as it is on an exhaustive examination of case law in the field. It provides, without being too reductive, a way of combining the factors and objectives of

section 15.2 of the Divorce Act that perhaps would not have been thought possible at the outset. [ 97 ] This does not mean, however, that the Advisory Guidelines are not subject to criticism. The authors themselves bring up some of the criticisms and try to address them, [49] especially as regards the "unsophisticated use" of their guidelines, [50] reducing them to a mechanical application of the formulas therein, without further analysis..

The authors obviously do not encourage such a use. [ 98 ] Moreover, we can entertain questions, if not reservations, regarding some of the choices made by the authors in the Advisory Guidelines .

Without conducting a thorough analysis of the issue here, the idea of income sharing, for example, which appears to stem from a very traditional view of marriage, seems at times [51] to become an income-equalization principle, which is questionable. [52] [ 99 ] Similarly, the Advisory Guidelines sometimes seem to place unwarranted importance, in the case of childless marriages, on the length of time the spouses cohabited, which is just one of the factors and objectives in

section 15.2 of the Divorce Act . It is in fact a criticism penned by Carole Julien J. in D.S. v. M. Sc. [53] In response to that criticism, the authors of the Advisory Guidelines came up with the "merger over time" concept, a term chosen to "capture the idea that as a marriage lengthens, spouses merge their economic and

non-economic lives more deeply, with each spouse making countless decisions to mould his or her skills, behaviour and finances around those of the other spouse". [54] According to the authors, the merger over time idea is in keeping with Moge , [55] which refers to marriage as a "common endeavour". [ 100 ] Marriage represented as a "socio-economic partnership" (term used by Justice McLachlin—she was not yet chief justice—in Bracklow [56] and Justices LeBel and Deschamps in Miglin [57] ) derives quite clearly from

section 15.2 , subsection (6) of the Divorce Act . It may reasonably be thought that the longer a marriage lasts, the closer the partnership and the more problematic it is to dissolve that marriage. The length of the marriage as the dominant factor in the without child support formula is therefore not as simplistic as it might seem, since this variable allows for implicit incorporation of most of the relevant factors in conjunction with the objectives provided for in paragraphs (6)( a ), (

c) and even (

d) of

section 15.2 of the Divorce Act . [ 101 ] The merger over time premise, however, does not check out in every childless union, any more than does the premise, especially in short or non-traditional marriages, that the disparity in spousal income results solely from the marriage and its breakdown, or that the standard of living must be maintained after the breakdown, without any further considerations. A socio-economic partnership exists to varying degrees, it does not necessarily foster dependency in one of the partners and, in the event of dependency, it is more often mutual nowadays than it used to be.

That said, this question should likely be resolved first, once entitlement to support has been determined: if there is no dependency, if there are no needs in regard to the various relevant factors, income disparity alone does not warrant entitlement to support.

But, as soon as the court rules that one of the spouses is entitled to support, the parameters of the without child support formula do not seem inadequate and, moreover, they do not preclude limiting the period of support. [ 102 ] The parental partnership concept, paramount in establishing spousal support, is especially interesting and appropriate when there are one or more dependent children, but also provides food for thought, particularly because it appears to exclude the analysis of spousal needs and resources when there are dependent children. Yet, subsection (4) of

section 15.2 of the Divorce Act demands that they be examined even when there are children (even though the weight of this factor may differ from that assigned to it when there are no children). [ 103 ] Basically, then, the Advisory Guidelines are not perfect (in fact the authors do not claim that they are) and, on certain points, they are assuredly likely to raise, if not controversy, at least discussion.

They nevertheless represent more than a mere mechanism: they are nuanced, factor in the differences between situations, do not disregard the judges' discretionary power, and have the advantage of allowing for a certain predictability and a certain uniformity in determining support amounts. They also facilitate, if need be, the quantification of the compensatory function of support, which it is not easy to [translation] "put a figure on".

Overall, they are intended to foster a measure of equality in the treatment of people before the court, while respecting the special nature of everyone's situation, thereby uniting parity and individualization. [ 104 ] Although not a panacea, the Child Support Guidelines have proven themselves. [58] The Spousal Support Advisory Guidelines , which are not a panacea either, offer the same type of benefits. The former are, of course, mandatory, while the latter are not. Despite their advisory nature, the Spousal Support Advisory Guidelines are a well-done, convenient, and practical work tool.

Courts in several provinces have already reached that conclusion, and even the least enthusiastic recognize their usefulness. Scholarly commentary as a whole seems to be quite in favour. [59] As Professor Goubau wrote, the guidelines [ TRANSLATION ] "do not replace the law or the authority of the courts, but they may well facilitate the enforcement of the former and the exercise of the latter". [60] * * [ 105 ] Where does such a tool fit in the judicial order? [ 106 ] Authors Payne and Payne had this to say: By way of an overview of the case law, the following opinions are tendered: (

i) Absent statutory or regulatory adoption, the Guidelines are informal and advisory. Blind adherence to the ranges established by the formulas under the Guidelines is not endorsed by the authors of the report, nor by the courts. In the opinion of the majority of courts that have considered the Guidelines, the prescribed formulas provide a useful supplementary tool to assist the court in determining the amount and duration of spousal support orders after the evidence has been reviewed in light of the statutory and judicial criteria governing such orders which are elucidated in Moge v.

Moge [reference omitted] and Bracklow v. Bracklow . [Reference omitted.] (ii) Even if the formulas in the Guidelines can be used as a starting point, as proposed by Professors Rogerson and Thompson [reference omitted] and endorsed by Sullivan J. in McCulloch v. Bawtinheimer , [reference omitted] and by Heeney J. in Hesketh v. Hesketh , [reference omitted] but opposed by Trussler J. in V.S. v.

A.K. , [reference omitted] they are no substitute for a factual analysis of evidence and a legal analysis of the factors and objectives that are prescribed as relevant by the governing statute and relevant case law. [Reference omitted.] (iii) On the breakdown or dissolution of long-term marriages in which the wife has assumed the primary homemaking and child caregiving roles, income splitting under the Spousal Support Advisory Guidelines substantially accords with Moge v.

Moge , wherein L’Heureux-Dubé J. observed that "[a]s marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution." [Reference omitted.] (iv) Although Professors Rogerson and Thompson perceive an interdependence between the amount and duration of spousal support orders, especially under the Without Child Support Formula , [reference omitted] courts use the Guidelines more frequently when addressing the amount of support to be ordered than in addressing the duration of the order. (

v) The Guidelines are inapplicable until an entitlement to spousal support is established. [Reference omitted.] In exceptional circumstances, the Guidelines may operate to negate any entitlement to spousal support. [Reference omitted.] (vi) Given the informal, voluntary, and advisory status of the Guidelines, courts are disinclined to apply the proposed formulas as the

sole or primary determinant of the amount and duration of spousal support orders. Courts have, nevertheless, accepted the Guidelines asproviding an appropriate benchmark for the judicial determination of spousal support orders, whether made pursuant to the Divorce Actor provincial legislation. [Reference omitted.] (vii) Since computer software on the Spousal Support Advisory Guidelines has become available, their application as benchmarks orcrosschecks has been more frequent.

Lawyers and judges are cautioned against attempting to apply the prescribed With Child SupportFormula under the Spousal Support Advisory Guidelines without recourse to available computer software. (viii) Although they have not gained universal acceptance as a “crosscheck,” “benchmark,” “litmus test,” or starting point in thejudicial assessment of the amount and duration of spousal support orders, many judges now appear to have established a comfort levelwith the formulas and principles presented by Professors Rogerson and Thompson. It is becoming increasingly frequent for courts to lookbeyond

[…]