2024 QCCS 137, 2024 QCCS 137

Droit de la famille — 2432 2024 QCCS 137 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-12-346375-201 DATE: January 17, 2024 _____________________________________________________________________ BEFORE THE HONOURABLE gregory moore, j.s.c. _____________________________________________________________________ R. D. Applicant v. C. M. Defendant _____________________________________________________________________ JUDGMENT _____________________________________________________________________ 1 . These are the reasons for judgment in Mrs.

D.’s application to homologate an agreement, and her application for a divorce and for accessory measures. 2 . At the end of the trial on January 12, 2024, the Court granted the parties’ divorce and stated that the reasons for judgment would be appended to the Minutes of Hearing, however, given the length of these reasons and the numerous Child Support Determination Forms , these written reasons will issue separately. The application to homologate an agreement on accessory measures 3 . This application is dismissed because the parties did not reach an agreement on accessory measures. 4 . On June 5, 2023, Mr.

M.’s spouse prepared a

summary of the parties’ initial agreement (Exhibit P-31). Among other things, it provides that Mr. M. will pay $400 per month as child support, and that the amount “cannot be revised under any circumstances” before the end of December 2027. 5 . Mrs. D.’s lawyer used the

summary to draft an agreement, which provides at paragraph 15 that the amount of child support could be revised before December 31, 2027 “in case of a significant change in the parties’ respective financial situations” (Exhibit P-36). 6 . Mr. M.’ lawyer prepared a second draft, which modifies paragraph 15 to say that the amount of child support will not be revised prior to December 2027 “even if a significant change occurs in the situation of the parties prior to December 31 st , 2027” (Exhibit P-37). 7 . Mrs.

D.’s lawyer then prepared a third draft, which modifies paragraph 15 to say that the amount of child support could be revised before December 31, 2027, if one of the parties’ revenues changes by over $25,000 (Exhibit P-38). 8 . These exchanges demonstrate that the parties did not agree on whether the amount of child support could be modified prior to December 31, 2027. Because child support is an essential element of accessory measures, Mrs. D. has not proved that the parties reached an overall agreement ( St-Arneault c. St-Arneault , 2019 QCCS 658 , par. 23 ).

The application for divorce, parenting time, and accessory measures 9 . Mrs. D.’s application for a divorce raises several issues, which will be dealt with in turn. The divorce 10 . The parties were married on August 8, 2015 (Exhibit P-3A) and separated at the end of December 2017. Because there has been a breakdown of the marriage pursuant to paragraph 8(2) (

a) of the Divorce Act , the divorce is granted. Parenting time 11 . The parties have two children, X, who is 10 years old, and Y, who is 4. A provisional judgment granted the majority of their parenting to Mrs. D.. Since then, the parents have agreed that Mr. M. would have parenting time with both children from Sunday at 9 am to Tuesday at 9 am, three weeks out of four. During the fourth week, Mr. M. would have the children from Monday at 4 pm to Wednesday at 9 am.

12 . Mrs. D. would like this arrangement to continue, whereas Mr. M. would like to extend his parenting time by one day such that the children would be with him from Sunday to Wednesday, three weeks out of four. 13 . Decisions concerning parenting time must be made in the children’s best interests.

While equal parenting time might be in the children’s best interests, several factors must first be considered. [1] The factors relevant to this case are: • the children’s needs; • the children’s personalities; • the family environment; • each parent’s capacity to meet the children’s needs, to provide for them, and to care for them; • the parents’ ability to communicate with each other; • the distance between the parents’ residences and between the residences and the children’s school; 14 .

The Court is not bound by the provisional judgment, but if the children are doing well in the current arrangement, the parent who seeks more parenting time must demonstrate that this will be in the children’s best interest. The current arrangement 15 . X and Y are doing well in the current arrangement. X is thriving at school and in his extra-curricular sports. His maternal grandmother helps him with his homework and ensures that it is all done before the weekend.

She testified that X does not always complete his homework when he is at his father’s home, so she ensures that his work is finished before he goes there on Sunday morning. 16 . When X’s friends organise weekend activities, he asks that they occur on Saturdays because he is not sure that his father will allow him to go on Sunday. 17 . Mrs. D., her mother, and Mr. M.’s spouse testified that Y is distressed when she has to go to her father’s house. Mrs. D. and her mother add that Y is happy when she returns to her mother. 18 .

That said, Y seems to do well once at her father’s home and both children are especially fond of their new baby brother, born of Mr. M.’s new relationship. The parents’ ability to meet the children’s needs 19 . Mrs. D. is more sensitive and responsive to the children’s needs. She is primarily responsible for ensuring that the children go to the doctor and to the dentist when needed. She also registers them for sports and summer activities. Mr. M. supports most of those activities but finds that the children participate in too many, some of which encroach on his parenting time.

For example, he does not want X to play baseball in the winter. 20 . Mrs. D. provided reliable testimony about the children’s needs and each parent’s ability to meet them. She acknowledged that Mr. M. is a great father when he is engaged, but that he is not sufficiently or often engaged with the children or their needs. For example, the children seem to be on their own a lot when they are at his home, he brings them to school late, he does not always tend to X’s homework, and does not want to attend or pay for the children’s activities if they occur during his parenting time. 21 . Mr.

M.’s testimony helped to prove Mrs. D.’s point. He could not remember if he has attended X’s birthday since the separation or if he shared the costs. X has only had five birthdays, spanning half of his life since the separation. An engaged parent would have a better recollection of these important moments in his son’s life. 22 . His testimony that the children can arrive at school at 9 am because the school day does not start until 9:15 is contradicted by the school’s published notice to parents. The students must be in their homeroom at 9 am, and the teaching time starts at 9:10 am. [2] 23 . Mr.

M.’s testimony about some of the financial aspects of the case were not credible. He has not repaid the $16,000 he borrowed from his former mother-in-law ten years ago to pay off a loan shark. He testified that she would have told him to reimburse it when he can. This is contradicted by their loan agreement (Exhibit P-10), which states that the loan was to have been repaid within one year, and by A. D.’s testimony that she never agreed to extend the term, even if she has not forced her former son-in-law to repay the loan. 24 . Mr. M. has no plan to repay the important loan from A. D..

He continues to take advantage of her generosity and strong commitment to her extended family, which reasonably contributes to R. D.’s feeling that Mr. M. does not take his family responsibilities seriously. 25 . A. D. paid the loan shark to avoid the violence or other consequences that could have befallen her son-in-law, her daughter, or her grandchildren following the threats that were left on his voicemail. It was Mr. M.’s responsibility to live within his means, to pay his debts, and to protect his family, but A. D. had to step up and assume that responsibility for him. 26 . A. D. also steps in for Mr.

M. in ensuring that X completes his weekly homework between Tuesday and Friday because he does not do it assiduously when he is with his father on Sunday and Monday nights. 27 . R. D. has to rely on her mother’s help because the children’s father does not fully assume his parental responsibilities. 28 . Another factor that weighs against Mr. M.’s request to increase his parenting time is that he came to court without mastering the

financial details of his case. One important concern raised by Mrs. D. is that he lived in her home for six months after the separation without paying rent or contributing to family expenses. Mr. M. contests that allegation but was overly defensive on cross-examination and said that he does not remember what rent he would have paid. An engaged parent would have a better understanding of the facts that he wishes to prove and that are relevant to his request for more parenting time. 29 . Mr. M.’s failure to pay child support must also be considered in the evaluation of his ability to meet his children’s needs.

It demonstrates a failure to co-parent effectively because he placed an important financial burden on Mrs. D.. In 2017, the family’s revenue was over $100,000, with Mrs. D. earning less than $30,000. As of January 1, 2018, she bore all of the family’s financial burden because Mr. M. did not pay rent or child support, and he contributed minimally to the children’s special expenses. 30 . Furthermore, he has not paid child support or contributed to the special expenses since Justice Jacob’s provisional order that required he do so. 31 . Finally, Mr. M. originally moved far from the children’s school and from Mrs.

D., which complicated the exchanges and the children’s early arrival at school. This suggests that he moved without considering his children’s interests. He has since moved closer to the school, though. The family environment 32 . The children live in healthy environments with both of their parents. Mrs. D. lives in the bottom unit of a duplex; her parents live in the top unit.

They are very much involved in their grandchildren’s lives: they help get them ready for school, pick them up after school, play with them and help them with homework, prepare supper, and drive them to and from their extra-curricular activities. 33 . At Mr. M.’s home, the children have their own room and a new baby brother with whom they have developed a close relationship. Mr. M.’s spouse is a responsible mother who helps care for the children. Although not directly involved in the solution, Mr. M.’s spouse seems to have helped him address his gambling problem and related debts.

Communication between the parents 34 . Despite their individual strengths as parents, Mrs. D. and Mr. M. do not communicate well with each other. Mr. M. does not always answer texts promptly when Mrs. D. asks for his approval of certain special expenses, and then takes the position that he was not consulted or that an expense was incurred without his approval. Mr. M. feels that Mrs. D. is too involved in his home life. Conclusion 35 . All of these factors indicate that X and Y are doing well under the current parenting time arrangement, and that Mr.

M. did not prove that they will fare better if it is changed. 36 . Mrs. D. requests that if one parent, or their immediate family, is not available to care for the children for a period of three hours or more, that the parent ask the other parent to care for the children before finding another arrangement. Mr. M. does not object to the request, so it is granted. Holidays 37 . Mrs. D. requests time with the children during holidays that fall on weekends when they are with their father. She proposes sharing those holidays, which is reasonable. 38 .

For the first day of school and Halloween, the children may wish to be with their new brother once he is old enough to attend school and to go out for Halloween. Consequently, those holidays will be shared between the parents. The children will be with their mother on even years and with their father on odd years. 39 . The parents are free to adjust the holiday parenting time by written agreement. Family patrimony and partnership of acquests 40 .

The draft settlement agreement (Exhibit P-38) indicates that the parties have partitioned the family patrimony and that they release each other from their obligations under their partnership of acquests. No evidence or argument to the contrary was presented during the trial. 41 . The order will acknowledge the parties waiver of their rights under the family patrimony and the partnership of acquests. Child support 42 . The child support will be determined according to the parties’ declared revenue. Mr. M. would attribute a higher revenue to Mrs.

D. because her checking account shows deposits that exceed her salary. However, she explained that the difference is made up of government allocations, her business activities, and deposits by her mother. That is a reasonable explanation. 43 . The

Schedule I’s that Mr. M. produced for the years 2018 to 2023 are a reasonable reflection of the parties’ revenues and their parenting time. 44 . Mr. M. has not paid child support since the separation. The amounts he has paid to Mrs. D. over the years were not designated as child support and will be applied to the special expenses, below.

2018 [3] $1,651.20 2019 $85.68 ÷ 12 x 8 months = $57.12 $3,161.05 ÷ 12 x 4 months = $1,053.68 2020 $5,627.94 2021 $4,612.83 2022 $3,272.87 2023 [4] $4,430.10 TOTAL $20,705.74 45 . Mr. M.’s arrears for child support are as follows. The parties’ second child was born at the beginning of [...] 2019, which explains why two amounts appear there: 46 . For 2024, the child support payments are indexed by 4.4%. [5] Mr. M. must pay $385.42 per month in child support from January 1, 2024, to December 31, 2024. That amount will be indexed annually thereafter on January 1 st of each year. Special expenses 47 . Mrs.

D. has paid the majority of the children’s special expenses since January 2018. She produced a yearly breakdown of the special expenses at Exhibit P-7 and receipts and proofs of payment at Exhibits P-7A to P-7F, as well as P-7I. She has not provided receipts for every expense, but her testimony proves that all the expenses were made. For example, she might not have kept receipts for some recurring expenses, but the initial receipts confirm the amounts she claims. 48 . Mr. M. accepts certain special expenses, although he has not paid his share.

He contests the categorization of X’s winter baseball fees as special expenses because he is not an elite athlete. He does not want to include the children’s school lunch fees because they fall under the support payments (that he has not paid), and he does not want to contribute to the children’s Registered Education Savings Plan because Mrs. D. controls it. In addition, he objects to the request for 2017 special expenses because the parties did not separate until the end of that year. Finally, he points out that Mrs.

D. received child tax credits that should be applied to the children’s expenses before they are divided between the parents. 49 . Mr. M.’s arguments are sound. Special expenses are specifically defined and do not include the items that Mr. M. wishes to remove from the list at Exhibit P-7. 50 . Mr. M. adds Mrs. D. should assume the cost of certain expenses because she made them before getting his consent. As mentioned, above, Mrs. D. sought Mr. M.’s consent on several occasions and he either agreed to the expense or did not answer. The items themselves are not unreasonable.

The total amount of the arrears is high because Mr. M. refused to assume his share as it came due. 51 . The breakdown at Exhibit P-7 is based on a 50 / 50 sharing of the children’s special expenses, but Mrs. D.’s application requests that they be shared on a pro rata basis according to the parents’ respective revenue. Their pro rata shares are established by the Child Support Determination Forms that are used, above. 52 . The Court has reduced the amounts claimed at Exhibit P-7 as follows:

i) The amount claimed in a year is multiplied by two to determine the full amount paid by Mrs. D.; ii) The tax credits are deducted from the full amount of the expenses; iii) The resulting amount is multiplied by Mr. M.’s pro rata share (ie. in 2018, he was responsible for 47.16% of the special expenses according to the

Schedule I produced as Exhibit D-27); iv) That amount is then reduced by any payments Mr. M. made to Mrs. D. during the year. 53 . This analysis leads to the following amounts that Mr. M. must reimburse: 2018 $15,209.71 2019 $4,701.44 2020 $1,229.98 2021 $3,013.71 2022 $1,809.87 2023 $4,618.42

TOTAL $30,583.13 54 . Mr. M. owes Mrs. D. $30,583.13 as arrears for the children’s special expenses from January 1, 2018, to December 31, 2023. Household expenses 55 . The parties separated at the end of December 2017 but continued to live under the same roof until July 1, 2018. Mr. M. stopped paying his share of the household expenses as of January 1, 2018, six months before he moved out. He must therefore reimburse Mrs. D. for the financial burden he imposed on her. 56 . The household expenses are summarised at Exhibit P-9. However, Mrs. D. claims amounts incurred before the separation and after Mr.

M. moved out. Only those expenses incurred while the parties had separated but lived under the same roof will be considered here. Mr. M.’s share of the expenses incurred after he moved out on July 1, 2018, is included in his child support payments. 57 . From January 1 to June 30, 2018, the parties incurred $9,805.28 in household expenses, with Mrs. D. paying $8,126,41 and Mr. M. $1,678.87. Because each party should have paid half ($4,902.64), Mr. M. owes Mrs. D. $3,223.77. Line of credit 58 . Mrs. D. requests that Mr. M. be ordered to reimburse $2,010.00 that she disbursed to pay off his line of credit. Mrs.

D. had co- signed the application for the line of credit, but it was opened so that Mr. M. could establish his creditworthiness after returning to Canada from Greece. His plan was to withdraw from the line of credit and pay it back quickly. Instead, he used the line of credit for regular expenses because his own money went to pay off loan sharks. 59 . After the parties separated, and a few weeks before Y was born, Mrs. D. was contacted by a collection agency that demanded she pay $2,010.00 to close out the line of credit, which she did. 60 . Mr.

M. told her that he would reimburse her by the end of October 2019, but he never did. 61 . He did not change his position until his testimony at trial, when he admitted owing Mrs. D. $2,010.00. He is ordered to reimburse her. Interest and indemnity 62 . Because Mr. M. failed to pay child support, his share of the children’s special expenses, his own living expenses, and to reimburse the line of credit, Mrs. D. had to do make those payments for him. The money she spent was not available for other purposes and could not be saved or invested. Mr.

M. therefore deprived her of the interest that she could have earned. 63 . Mr. M. is ordered to pay interest and the legal indemnity provided for at

article 1619 C.C.Q. on the amounts that he should have paid Mrs. D. when those payments became due. The interest and the legal indemnity will be calculated from March 12, 2020, which is the day that these proceedings were initiated, until the date that Mr. M. reimburses each debt. Provision for costs 64 . Mrs. D.’s application for a provision for costs is dismissed. A provision for costs is intended to put the parties on an equal financial footing, such that they may both participate in the debate about support payments. In this case, Mrs. D. earns more than Mr.

M., so does not need to be put on an equal footing with him. 65 . Mrs. D. adds that Mr. M. forced her to spend needlessly on a lawyer to draft a settlement agreement that he later refused to sign, to apply to homologate the agreement, and to attend at court when Mr. M.’s fourth lawyer sought to postpone this trial. However, Mr. M.’s evolving legal position was not necessarily an abuse of process. The parties had a reasonable disagreement about the terms of the settlement agreement, and it not unusual for a new lawyer to ask for a postponement. FOR THESE REASONS, THE COURT: 66 .

DISMISSES the plaintiff’s Modified Application to Homologate an Agreement on Accessory Measures , dated December 19, 2023; 67 . GRANTS , in part, the plaintiff’s Re-Modified Originating Application Seeking a Divorce, Sole Custody, Child Support […] Accessory Measures, and a Provision for Costs , dated December 19, 2023; 68 . CONFIRMS that on January 12, 2024, a divorce was granted between the parties, whose marriage was solemnized on August 15, 2015, in Town A, Quebec, which takes effect on the thirty-first day following the January 12 th judgment; 69 .

GRANTS to both parties decision-making responsibility in respect of X and Y, and ORDERS them to consult each other before taking any important decision in relation to the children including but not limited to their health, education, religion and major extracurricular activities; 70 . GRANTS to R. D. the majority of the parenting time with X and Y; 71 . GRANTS to C. M. parenting time with X and Y as follows:

• Three weeks out of four, from Sunday 9 am to Tuesday 9 am; • One week out of four, from Monday 4 pm to Wednesday 9 am; 72 . TAKES FORMAL NOTICE of the parties’ agreement that if one parent, or their immediate family, is not available to care for the children for a period of three hours or more, that the parent will ask the other parent to care for the children before finding another arrangement; 73 .

ORDERS that parenting time with X and Y be exercised as follows on holidays: • Christmas and New Year’s : the children will be with their father from December 25 th at noon, until December 27 th at noon, and from January 1 st at noon, until January 3 rd at noon, after which the regular parenting time will resume; • Valentine’s Day : If the father works, the children will be with their mother from 9 am until the next day at 9 am; • Easter : The children will be with their father on Orthodox Easter from Sunday 9 am until 5 pm; • The children will be with their mother on Catholic Easter from Friday 5 pm until Monday 9 am; • If the two Easters are celebrated on the same weekend, in even years the children will be with their mother from Friday 5 pm until Sunday 5 pm, and with their father from Sunday 5 pm until Monday 5 pm.

In odd years, the children will be with their father from Sunday 9 am until Monday 9 am, and with their mother from Monday 9 am until Tuesday 9 am; • Mother’s Day and Father’s Day : The children will be with their mother on Mother’s Day from 10 am until Monday at 9 am, and with their father on Father’s Day from 10 am until Monday at 9 am; • Summer break : The children will have two non-consecutive weeks with each parent during the summer. In even years, the father will have first choice of dates and will confirm them to the mother by April 1 st .

The mother will communicate her dates in the following 15 days. • In odd years, the mother will first choice of dates and will confirm them to the father by April 1 st . The father will communicate his dates in the following 15 days; • First day of school : The children will be with their mother for the first day of school from the night before at 5 pm until the start of school the following day.

When the children’s new brother is old enough to attend school, they will be with their mother in even years, and with their father in odd years; • Halloween : The children will be with their mother on Halloween from after school or 4 pm if there is no school until the following morning at 9 am. When the children’s new brother is old enough to go out for Halloween, they will be with their mother in even years, and with their father in odd years; • Thanksgiving : The children will be with their mother on Thanksgiving Sunday from 9 am until Monday at 9 am. 74 .

DECLARES that the parents may modify the holiday parenting time by written agreement; 75 . TAKES FORMAL NOTICE of the parties’ waiver of their right to partition the family patrimony; 76 . TAKES FORMAL NOTICE of the parties’ waiver of their rights to partition their partnership of acquests; 77 . ORDERS C. M. to pay R. D. $20,705.74 as arrears for child support for the benefit of X and Y from January 1, 2018, to December 31, 2023, with interest and the legal indemnity provided for at

article 1619 C.C.Q., calculated as of March 12, 2020; 78 . ORDERS C. M. to pay R. D. $385.42 per month beginning January 1, 2024 as child support for the benefit of X and Y; 79 . ORDERS that the child support be indexed on January 1, 2025, and annually thereafter pursuant to

article 590 of the Civil Code of Québec ; 80 . ORDERS C. M. to pay R. D. $30,583.13 as arrears of the special expenses she incurred from January 1, 2018, to December 31, 2023, with interest and the legal indemnity provided for at

article 1619 C.C.Q., calculated as of March 12, 2020; 81 . ORDERS C. M. to pay R. D. $3,223.77 for his share of the household expenses between January 1 and June 30, 2018; 82 . ORDERS C. M. to pay R. D. $2,010.00, with interest and the legal indemnity provided for at

article 1619 C.C.Q., calculated as of March 12, 2020, in reimbursement for the amount she paid to close the line of credit that was opened for his sole use and benefit; 83 . THE WHOLE , without legal costs. __________________________________ HONOURABLE GREGORY MOORE, j.S.C. Me Justine Laframboise LAFRAMBOISE AVOCATS

Attorney for R. D. Me Jillian Wood GARAND, WOOD INC. Attorney for C. M. Hearing dates: January 10, 11 et 12, 2024