2010 QCCA 2142, 2010 QCCA 2142

Unofficial English Translation Droit de la famille — 103137 2010 QCCA 2142 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-006924-101 (200-04-018100-097) DATE: November 23, 2010 CORAM: THE HONOURABLE J.J. MICHEL ROBERT, C.J.Q. FRANCE THIBAULT, J.A. PAUL VÉZINA, J.A. L. C. APPELLANT – INCIDENTAL RESPONDENT – plaintiff v. G. B. RESPONDENT – INCIDENTAL APPELLANT – defendant JUDGMENT [ 1 ] The judgment a quo was rendered on December 1, 2009, by the Honourable Mr. Justice Martin Dallaire of the Superior Court. On the one hand, he denied L.

C.'s request for support retroactively to June of 2006, and also declared that she had achieved financial independence provided that G. B. continued to pay support for one more year. [ 2 ] Both parties are appealing the judgment. [ 3 ] When they wed in 1988, L. C. was 18 years of age and G. B. was 21. They stopped living together in 1999, just over ten years ago, after having been together for about the same length of time. [ 4 ] With respect, regarding the request for retroactivity, the judgment rendered contains some confusion between the request covering the past and setting a time-limit for the future.

Indeed, the judge wrote: [translation] [27] The Court finds that it is now high time that she think of herself. To do so, the Court, having denied retroactivity on the amounts from previous years, finds that a certain standard of living should be maintained to allow L.C. to acquire life skills. ... [31] Moreover, as the Court was saying, there is no reason to assign any retroactivity to enable catching up, but the Court deems it to be just and appropriate to maintain a period of time so that L.

C. may cope with the cessation of maintenance payments. [32] Thus, for an appropriate, but limited, period of time, the Court will maintain the support amounts paid to L. C.; more specifically, these payments will be maintained for twelve months from the present judgment, without any retroactivity up to and including December 1, 2010. [ 5 ] Let us point out that the Divorce Act (

section 17 ) offers more flexibility than the Civil Code of Québec (

article 595 ) on the issue of awarding support payments retroactively. The Supreme Court sets out the criteria for retroactivity in D.B.S. v. S.R.G. ; J.J.W. v. T.A.R.; Henry v. Henry ; Hiemstra v. Hiemstra . [1] [ 6 ] With respect, according to these criteria, the judge should have granted child support retroactively. [ 7 ] Let us note that L. C. got herself into debt in order to give her son the best. This is acknowledged by the judge: [translation] [25] It has been proved that, for a number of years, L. C. made enormous sacrifices so that her child could get ahead in life and that,

according to the evidence, she certainly did not enrich herself during that time. She forgot herself and lived in quasi-destitute conditions. To this day, she has very few assets. [ 8 ] Additionally, in January of 2007, L. C.'s salary was about $25,000, whereas G. B.'s salary went from $50,000 to $100,000 when he began working for his new employer. G. B. did not inform L. C. of his new income. [ 9 ] Of course, L. C. must have suspected that G. B. enjoyed improved work conditions at his new job, and maybe she could have addressed the courts to seek an adjustment of the support G. B. paid for herself and her son.

But this criticism of L. C. is insufficient to bar retroactivity. [ 10 ] G. B.'s primary responsibility was to ensure that he was meeting his support obligations toward both his son and his ex-wife, in light of the fact that his income had doubled. [ 11 ] G. B. cannot pretend to have been ignorant of L. C.'s situation. Indeed, she had her lawyer write him a letter in June of 2007 first, to inform him that his son wished to see him more often and second, to ask for a contribution [ translation ] "of $1,000 a month".

The letter remains unanswered . [ 12 ] From that moment, characterized by the Supreme Court as the "date of effective notice", G. B. "[could] no longer assume that the status quo [was] fair": [2] [121] Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re- negotiated.

Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling. [ 13 ] G. B. saw little of his son, which proportionately increased L. C.'s parental contribution. Because of his increased salary, G. B. knew that he could contribute to a greater extent than he had in the past.

His conduct is blameworthy according to the Supreme Court, which sees a ground for retroactivity therein: [124] The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met.

This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments. [ 14 ] Admittedly, G.

B., who has since remarried and fathered two other children, was not rich. But he nonetheless had to care for his first family. Because his contribution has been inadequate since June of 2007, L. C. has incurred more than her fair share of debt. There is good reason to restore balance to their reciprocal contributions. [ 15 ] Considering the "annual net earnings" of the parties, the Court finds that retroactive support payments in the amount of $8,000 would be fair. Taking into account the overall obligations of G.

B., the payment of this sum will be spread over 16 months starting January 1, 2011. [ 16 ] Concerning the future, the judge concluded that L. C. had attained financial independence, subject to a transitional year: [ translation ] [26] ... [L. C.] now has stable and interesting employment that provides her with substantial income. ... [28] ... [G. B.] assumes the care of his son and it is likely that time will afford L.

C. the opportunity of establishing a "buffer zone". [29] The Court is convinced of the appropriateness of time-limited support payments, though the Court of Appeal noted that setting a time-limit for support may be undesirable ... [citation omitted] [30] ... Indeed, L. C. has just attained her independence, and custody of the son [has just] been attributed to G.

B., their time together is equivalent to the length of the parties’ marriage and substantial amounts were awarded in order to fulfil obligations. [ 17 ] Only a "palpable and overriding error" in the exercise of the judge’s discretion could justify this Court's interference, but this is not the case here. For these reasons: [ 18 ] ALLOWS L.C.'s appeal in part; [ 19 ] ORDERS G.B. to pay to the appellant child support for their son in the amount of $500 per month, for sixteen months, starting on January 1, 2011; [ 20 ] DISMISSES G.B.'s incidental appeal;

[ 21 ] UPHOLDS the remaining conclusions of the impugned judgment; [ 22 ] The whole, without costs, according to the usual rule in family law matters. J.J. MICHEL ROBERT, C.J.Q. FRANCE THIBAULT, J.A. PAUL VÉZINA, J.A. Mtre Jocelyn Verdon Garneau Verdon Michaud Samson For the appellant – incidental respondent Mtre Isabelle Perreault Dumas, Gagnon, Jobin For the respondent – incidental appellant Date of hearing: November 3, 2010