2012 QCCA 87, 2012 QCCA 87

Droit de la famille — 1275 2012 QCCA 87 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021583-117 (500-12-291084-071) DATE: JANUARY 23, 2012 CORAM: THE HONOURABLE PAUL VÉZINA, J.A. JACQUES DUFRESNE, J.A. NICHOLAS KASIRER, J.A. M. C. APPELLANT – plaintiff v. S. R. RESPONDENT – defendant JUDGMENT [ 1 ] On appeal from a judgment of the Superior Court, District of Montreal, rendered on March 9, 2011 (the Honourable Madam Justice Nicole-M.

Gibeau), which granted a divorce on the petition of the appellant and dismissed his claims for a compensatory allowance and a lump sum support payment; [ 2 ] For the reasons of Kasirer, J.A., with which Vézina and Dufresne, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal; [ 4 ] Without costs. PAUL VÉZINA, J.A. JACQUES DUFRESNE, J.A. NICHOLAS KASIRER, J.A. Mtre Sylvia Beatrix Schirm For the appellant Mtre Gerald Stotland Mtre Julie Brisson LAVERY, De BILLY For the respondent Date of hearing: December 8, 2011 REASONS OF KASIRER, J.A.

I Introduction [ 5 ] For the appellant, the trial judge in this case mistakenly fell prey to a "strong gender bias" that weighs against husbands who

earn less than their wives. Mr. C. indeed had a lower income and accumulated fewer assets than his wife over the course of their 27-year marriage. At divorce, he had sought redress by way of a compensatory allowance and a lump sum to be drawn from his partner’s substantial savings. The Superior Court dismissed his claims and imputed a salary to Mr. C. for calculating child support in a manner that suggests to him that he is "being punished because he did not earn the level of income that Respondent was able to earn". [ 6 ] On appeal, Mr.

C. argues that the judge's bias prompted her to make errors of fact and law regarding the spouses’ contributions to running the household and the financial responsibilities the spouses had to one another upon the breakdown of the marriage. This deprived him of the property settlement and support that were his due as part of the "equitable" sharing of the economic consequences of a long-term marriage described in Moge v. Moge . [1] He says a woman making the same claim in comparable circumstances would have fared much better. II Factual Context [ 7 ] Mr. C. and Ms. R. were married in 1980.

They signed a marriage contract in which they chose the matrimonial regime of separation as to property. In 1990, they formally opted to withdraw from the rules on the family patrimony. They separated in September, 2007. Mr. C. filed for divorce in the days that followed. Divorce was pronounced by the Superior Court on March 9, 2011. [ 8 ] This was not a "traditional" marriage, as that expression has come to be used, in which one spouse works in the home, allowing the other to pursue an income-earning career.

Both husband and wife worked outside the home throughout the marriage, both before and after the birth of their children. At the start of the relationship, the spouses found themselves in comparable circumstances with equally promising futures. Ms. R. had recently completed a master's degree in business administration and worked in corporate finance at an annual salary of approximately $20,000. Trained in accounting, Mr. C. was preparing his final exams while working for a firm at about the same salary as his spouse. [ 9 ] Mr.

C. worked for several employers through the marriage, mostly in the accounting field, and supplemented his income with a modest number of private clients for whom he provided tax advice and services. There was a single period of unemployment and several efforts at self-employment. His income varied, but latterly it was in the $60,000 to $80,000 range. Starting in 2006, he worked away from home in Ottawa during the week for [Company A] as an accountant, returning home to Town A on weekends. He maintained a small office in Town A for consulting for a number of years, including for the period he worked in Ottawa.

At about the time Mr. C. began work in Ottawa, he started a homecare business with a partner as a side-line. Just before divorce proceedings were instituted in September, 2007, Mr. C. left his job in Ottawa and decided to devote most of his energies to developing that business. When that venture proved slow to provide a proper income, he accepted an accounting position with the [Company B in Nunavut] in early 2010 at an annual salary that, at the time of the trial, was about $115,000. [ 10 ] Ms.

R. worked in corporate finance for the same investment house from the start of her career, progressing both in salary and rank along the way. She enjoyed a handsome income: with bonuses for performance, she earned over $300,000 in her last years at her job as a financial analyst. She was laid off during the divorce proceedings in 2010 and quickly found replacement work, but at a much lower income. She took a part-time job as a CEGEP teacher and a position for a firm in mid-level management for a total of about $70,000 per year. [ 11 ] There are two children of the marriage.

X, aged 23, was a graduate student in business administration at the time of the trial. Y, aged 18, was in a pre-university CEGEP program. Ms. R. had taken relatively brief leaves on the birth of the children. A full-time nanny was eventually hired. Ms. R. settled on a work regime of three days at the office, supplemented by work-time at home where she was more available to meet the demands of family life. Mr.

C. worked full-time but, especially when he was self-employed, had a measure of flexibility to attend medical appointments and the like for the children when his wife was not available. [ 12 ] During the course of the marriage, the parties developed an arrangement for dividing household expenses. They first lived in a modest apartment and later rented a duplex in a well-to-do neighbourhood. Over time, Mr. C. paid for most of the rent and basic utilities, including, later in the marriage, a family cell-phone plan. Ms.

R. paid for most of the children's clothing, most food except certain restaurant expenses, virtually all family holidays, orthodontist fees and the cost of the nanny. Each of the parties, in the main, attended to their own personal needs. They divided many other children's special expenses between them, including the costs of camps and children’s activities, although Ms. R. generally paid substantially more than her husband. By way of example given at trial, she paid the lion's share of the costs of X’s Bat Mitzvah and Y’s Bar Mitzvah celebrations, each in the order of about $20,000.

Both children attended private schools: Mr. C. paid for the daughter’s schooling while Ms. R. paid the more expensive fees for the son’s school. While Mr. C. contributed to the travel costs associated with Y’s debating tournaments, his mother paid the better part of these expenses. [ 13 ] While the division of household expenses left Ms. R. paying considerably more than her husband, the arrangement worked well enough during the marriage. At one stage in 2000, Mr. C. objected that he was paying more than his fair share, but the parties soon settled back into the established routine.

It was after the break-up that the proportional amount of household expenses they had each taken on during the marriage became a serious bone of contention. The extent of those contributions was one of the key findings of fact that the judge was called upon to make at trial. [ 14 ] At the time of the hearing on the merits, Mr. C. had savings of just less than $400,000, most of which in registered retirement savings plans, and about $90,000 of debt. Ms. R. had set aside a net amount of about $2,300,000 from her work over the years, of which a portion was held in RRSPs.

Through the marriage, the spouses chose not to acquire major capital property for the family – a house or a cottage, for example – together or even separately. They both owned cars (Ms. R., who continued to live with the two young adult children, had two) and declared that they owned furniture in their respective statements of assets and liabilities. [ 15 ] It should be noted that soon after the separation, Mr. C. returned to Town A without a salaried position and asked for periodic support for himself as interim relief. When Ms.

R. advised the Superior Court that she had lost her job as a financial analyst, he withdrew that request. After he secured employment with the [Company B in Nunavut] in January, 2010, he abandoned his demand for periodic support completely. At his new job, Mr. C. earns more than he did at other times in his career and participates in a pension plan, although he notes that some of his income is supplemental pay for working in an isolated part of Canada that he considers to be a

hardship. He also now earns more than Ms. R. although she has substantial savings upon which she can rely. [ 16 ] At trial, Mr. C. claimed a compensatory allowance, alleging that he had over-contributed to the expenses of the marriage in a manner that had allowed his wife to enrich herself at his expense over the years. In the alternative, he sought a lump sum in the same amount to redress the untoward financial consequences he suffered arising out of the breakdown of the marriage.

He argued as well that his reduced income in 2008 and 2009, as recorded on his income tax forms, should be used to calculate child support and his liability for special expenses. III The Trial Judgment [ 17 ] The trial judge dismissed Mr. C.’s claims for a compensatory allowance and a lump sum and imputed a higher income to him for child support than that which he had declared for tax purposes. [ 18 ] The judge agreed with Mr. C. that his responsibility to support daughter X ended when she completed her first university degree.

She fixed that date at September 1, 2009 for the purpose of liability for arrears. [ 19 ] She examined Mr. C.’s employment record as well as evidence concerning his extra income-earning activities in order to determine the amount of his income for support. She decided that Mr. C. had voluntarily left his job at [Company A] in Ottawa, at which he earned $81,200 per year, on or about September 1, 2007.

His decisions to leave that job, his subsequent decision not to pursue a job with a $60,000 salary, and the insufficient character of his subsequent efforts to find employment were, in her view, "inacceptables et déraisonnables" in light of his financial responsibilities to his children (para. [31]). [ 20 ] Invoking her discretionary authority under

article 825.14 C.C.P., the judge imputed a $60,000 annual salary to Mr. C. for 2007, 2008 and 2009. (Ms. R. had argued that $81,200 should have been imputed to him for each of those years). To that the judge added lesser amounts as income from his consulting work and from the small home-care business. She allowed him deductions from that income connected to work as an accountant, except for a claim in respect of use of a car. For the same period, the judge attributed over $340,000 each year to Ms. R.. [ 21 ] The judge adjusted the amount due from Mr.

C. from 2010 onwards to reflect an income of $123,400, including a salary of $115,000 from his employment in Nunavut. She reduced Ms. R.'s responsibility for support to reflect the significant drop in her income following her change of jobs. The judge concluded that Mr. C. owed child support for both children from September 1, 2007, i.e. the date of the institution of the divorce proceedings, to August 31, 2009. From September 1, 2009 onwards, she calculated the amount due only for Y, the younger child (paras. [37]-[39]). The judge declined to adjust the amount to reflect an alleged failure by Mr.

C. to exercise rights of access (para. [57]). The judge then reviewed in detail the various claims for special expenses for the two children and decided that Mr. C. should reimburse Ms. R. a total amount of $1,616.55 for the period from September 1, 2007 to December 31, 2009 (para. [53]). [ 22 ] The trial judge dismissed his claim for a compensatory allowance of $750,000. After reviewing the evidence presented by both parties as to their respective contributions to the expenses of the marriage, she decided that Mr. C. had underestimated Ms. R.’s contributions, especially in respect of the children (para. [66]).

The judge noted that Mr. C. had failed to establish that his wife had not met her financial obligations or that she had enriched herself at his expense (para. [69]). [ 23 ] Notwithstanding his increased income in 2010, Mr. C. stood firm on his request for a $750,000 lump sum and a provision for costs at trial. The judge granted him provision for costs in the amount of $15,000 as an alimentary measure but dismissed the more substantial claim for a lump sum.

In that latter regard, she decided that none of the relevant factors and objectives set forth in subsections 15.2(4) and 15.2(6) of the Divorce Act justified the award of a lump sum. Her view was that the husband was in a position to attend to his own needs. What he characterized as his precarious financial future did not result from the breakdown of the marriage but instead reflected his personal choice to leave various jobs over the course of the marriage (para. [77]).

He had chosen from time to time to change jobs or to be self-employed, said the judge, even though he knew that a change of career orientation or working for himself might be the source of less income. That career path explained his financial circumstances and, for the judge, it was up to him to assume the consequences (para. [78]). IV Grounds for Appeal [ 24 ] Mr.

C. appeals the judge’s decision on three points – the amount of imputed income relevant to child support and special expenses; the dismissal of the claim for a compensatory allowance; and refusal to award a lump sum – alleging she committed errors of law and of fact justifying reversing the judgment of the Superior Court. He submits these errors are, in part, the reflection of the judge's gender bias. V Analysis [ 25 ] I propose to consider, in turn, arguments relating to the level of income imputed to him, the compensatory allowance, and the alternative claim for a lump sum.

It bears recalling at the outset that, as a general rule, a court of appeal will not disturb factual findings by a trial judge in the absence of a palpable and overriding error. This principle has been applied to family law disputes in matters relating to alimentary support, [2] including lump sum payments, [3] as well as the compensatory allowance. [4] On the other hand, an error of law or proof of bias that undermines a finding of fact invites the intervention of this Court. [ 26 ] As a further preliminary point, it should be noted that no personal reproach is made against the judge.

The alleged bias is not one that is particular to this judge but is said to reflect a more widespread social stereotype that is prejudicial to men who earn less than women. Moreover, the alleged gender bias is not one anchored in legislative text. The language of the Civil Code of Québec and the Divorce Act aspires to gender-neutrality in a manner that reflects the principle of equality of the spouses that characterizes marriage. [5] Importantly, spouses are not just formal equals in the applicable texts, they both benefit from legislative remedies that, to a greater or

lesser degree, promote substantive equality in marriage, including the compensatory allowance and the lump sum alimentary payment claimed by Mr. C. here. When enacted, these measures were primarily thought of as means to come to the aid of economically vulnerable women, but not exclusively so. [6] They should not be considered inapplicable to husbands by reason of a stereotype as to who is, or should be, the primary breadwinner in family life. [ 27 ] The law is clear on this point.

Writing on the availability of compensatory support, L’Heureux-Dubé, J. addressed much of her reasons in Moge to the financial distress that women working in the home often face after divorce. She nevertheless took care to make plain that the remedy was available to men where appropriate: "[...] this analysis applies equally to both spouses, depending on how the division of labour is exercised in a particular marriage.

What the [ Divorce] Act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender". [7] [ 28 ] As we shall see, L'Heureux-Dubé, J.'s qualifier – "depending on how the division of labour is exercised in a particular marriage" – takes on decisive importance in this case. At the end of the day, it was the division of labour between Mr. C. and Ms.

R. and the independent character of their financial lives that explain why the judge denied the compensatory allowance and lump sum, and not a bias against impecunious husbands. 1) Attribution of income for child support [ 29 ] On appeal, Mr. C. argues that the judge erred in imputing a $60,000 salary to him for each of the years 2008 and 2009. He says that, in law, income should only be so imputed to an alimentary debtor where he or she acted deliberately or recklessly to diminish funds available for support obligations. Moreover, he says that the judge’s conclusions were not properly based on the facts.

It is alleged that the judge mistakenly characterized Mr. C. as having "plusieurs périodes pendant lesquelles il s’est retrouvé volontairement au chômage" (para. [71]). In addition, the judge was wrong to blame him for leaving his job in Ottawa. When the circumstances surrounding his resignation are properly assessed, the better view is that there was no reasonable basis for attributing $60,000 salary to him in 2008 and 2009. [ 30 ] As a first point, the judge did not err in law in holding Mr.

C. to account for leaving his job at [Company A] in September, 2007. [ 31 ] Courts are generally unforgiving of an alimentary debtor who, in bad faith, leaves employment with the sole purpose of avoiding his or her financial responsibilities. They do recognize, however, that a person retains a measure of freedom to leave a job for which he or she feels ill-suited for good reason.

Courts have shown sensitivity, too, towards those who, because of health or advancing age, for example, find it necessary to reorient their career path. [ 32 ] But where a person has an alimentary obligation to children, he or she must be mindful of the impact that a career reorientation or a decision to resign from a job will have on his or her abilities to pay support. [ 33 ] In C.S. v.

M.G. [8] – a case cited by both parties in support of their respective positions – my colleague Bich, J.A. explained the balance that must be struck between a debtor's freedom to change jobs and his or her financial responsibility as follows: [27] Bien sûr, en cas de divorce, chacun des ex-conjoints perd une mesure importante de liberté en ce que ses choix, s'ils ont des répercussions alimentaires, seront examinés et, même, contrôlés, particulièrement lorsqu'il est question de la pension payable au bénéfice des enfants.

Tout d'abord, la loi oblige les ex-conjoints, lorsqu'ils sont parents, à un partage strict des charges financières rattachées aux enfants, sur la base des revenus respectifs de chacun, et il importe que les choix de l'un n'imposent pas un fardeau démesuré ou injuste à l'autre. D'autre part, il importe également que les choix professionnels d'une

partie n'aient pas pour effet de lui permettre de se soustraire à son obligation alimentaire ou n'infligent à son créancier des contraintes exagérées ou inacceptables compte tenu de l'ensemble des circonstances. Le divorce n'entraîne cependant pas le gel de la condition des parties et n'établit pas à perpétuité le cadre financier des relations qui existent entre elles ou celui des relations qui existent entre elles et leurs enfants.

Ce cadre peut évidemment se modifier ou se transformer selon les aléas de la vie et l'évolution de la situation des parties et de leurs enfants, dans la mesure où se produisent des changements significatifs. [ 34 ] The judge undertook this exercise in balancing the right to reorient a career and the duty to alimentary creditors in her analysis of Mr. C.’s decision to quit his job in Ottawa at paragraphs [28] to [30] of her reasons. In light of the authorities she considered, the judge made no mistake, in my view, in identifying the applicable law for imputing salary to Mr. C. in the circumstances.

It is true that there is no evidence that Mr. C. was acting in bad faith when he left [Company A]. But the judge did not apply a criterion of bad faith nor did she wrongly decide, as the appellant suggests, that Mr. C. acted with the deliberate intention of avoiding his obligation to support the children. It was sufficient for the judge that Mr.

C. knew that his resignation would imperil his ability to pay support and that this decision was not a reasonable one given his responsibilities to his children. [9] The trial judge made no mistake in law here. [ 35 ] Does the judge’s decision to impute $60,000 salary to Mr. C. reflect a palpable and overriding error of fact? [ 36 ] The appellant says he had a good explanation for leaving his job when he did. The company had criticized his performance and, rather than expose himself to the indignity of a dismissal, Mr. C. claims that he chose to resign to protect the integrity of his employment record.

But for this choice in 2007, he would have had trouble obtaining the job in Nunavut in 2010. Given that his decision to leave was justified in the circumstances, he says it was wrong for the judge to impute salary to him. [ 37 ] In addition, Mr. C. says the judge erred in fact, at paragraph [6] of her reasons, in her account of his employment record. He did not regularly quit jobs in to take unemployment benefits. And contrary to what the judge noted, he did not turn down a position at $60,000.

These mistakes in reading the evidence mean that her decision to impute a salary of $60,000 to him in 2008 and 2009 calls for review. [ 38 ] While the judge’s account of the facts may well have lacked some of the detail and nuance that Mr. C. feels necessary to present a fair picture of his employment record, I do not see a palpable and overriding error that would allow this Court to disturb the exercise of discretion to fix the salary at $60,000.

[ 39 ] First, it bears noting that the judge did not impute to Mr. C. the full amount of his salary previously earned at [Company A] for the years 2008 and 2009. In choosing the lesser amount of $60,000, the judge was not holding Mr. C. responsible for leaving [Company A] per se , but rather she fixed what she saw as a reasonable amount of alternative income that he chose to forego by not working at a salaried position for the years in question.

The judge considered that $60,000 was a reasonable figure to impute as salary for alternative employment, and not the higher figure of $81,200 – the equivalent of the [Company A] salary – called for by Ms. R.. [ 40 ] Second, Mr. C.’s departure from [Company A] coincided, almost to the day, with his decision to institute divorce proceedings. While he had given notice to leave the job earlier, his decision nonetheless showed a high degree of disregard for his financial obligations to his children.

The evidence shows that one of the main considerations he had in leaving the job was to pursue his homecare business in Town A which, at least in the short-term, did not have prospects for an income comparable to the one he left. His choice of timing to reorient his career was not a responsible one given his obligations to the children. And while he may not have had a firm alternative job offer in hand, Mr. C. did acknowledge that he decided not to pursue another position during the same period because it only paid $60,000.

This too was inappropriate and reinforced the judge's choice to impute salary to him at that level. [ 41 ] His performance record at [Company A], while not unblemished, does not substantiate his explanation that he quit the job to avoid what he saw as an inevitable dismissal. The record does not show he was about to be dismissed when he decided to leave. It appears instead that he was performing adequately enough but not thriving in the job. Rather than righting things at [Company A], he chose to leave as part of the turning of a page in his life. At the hearing on interim relief, Mr.

C. explained the circumstances of his departure, including his sense that "I knew it was necessary to change my career". Moreover, it is true that over the course of the marriage Mr. C. only appears to have been unemployed for one protracted period. But the judge was not wrong to infer from Mr. C.’s employment record that he changed jobs relatively often for reasons of personal dissatisfaction.

His departure from [Company A] was simply consistent with this pattern. [ 42 ] All in all, his decision to leave that job was ill-advised at the time and, given his financial obligations and his slowness to secure suitable alternative employment, it made sense to impute salary to him. The judge’s decision to fix the salary at that level finds appropriate support in the evidence. The calculations the judge made to fix responsibility for support and special expenses as she did have not been shown to be manifestly wrong. [ 43 ] Counsel for Mr.

C. contends that, in any event, the children did not suffer unduly as a consequence of Mr. C.’s decision to leave his job. The argument is specious. Mr. C. was not free to curtail his income or to limit his ability to meet his financial obligations to his children on the assumption that his wife was sufficiently flush to cover the shortfall in support. [ 44 ] As a final point on this issue, it should be said that no evidence was advanced to substantiate the claim that the judge’s decision to impute salary to Mr. C. reflects a gender bias against men who earn less than their wives.

As I have said, the amount of salary imputed to him for 2008 and 2009 – again, an amount less than that of the job he decided to leave – was not out of step with his personal employment history. The judge did not punish him for earning less than his wife; rather she took his historical earnings into account, fully and impartially, and simply carried forward a reasonable amount of salary, based on that history, for the purposes of determining his financial responsibility to his children. No sign of bias has been shown.

No proper reason has been identified to disturb her findings of fact on this point. 2) Claim for a Compensatory Allowance of $750,000 [ 45 ] Mr. C. claims a compensatory allowance of $750,000 and a lump sum, in the same amount, as alternative remedies.

He invites the Court to consider, as a further option, a combination of the two claims for a total award of $750,000. [ 46 ] It should be said at the start that this approach rests on a mistaken premise that the compensatory allowance and a lump sum are somehow interchangeable claims or that they can be imagined as "communicating vessels" when a court rules on financial consequences at divorce. As Mr.

C.'s counsel acknowledged at the hearing on appeal, the two remedies – the compensatory allowance, for unjust enrichment in marriage; the lump sum, an alimentary claim – have neither the same justification [10] nor the same basis in law. [11] Indeed, even when a lump sum is ordered as "compensatory" support under

section 15.2 of the Divorce Act , its orientation remains alimentary and thus, broadly speaking, prospective in character. Even where a lump sum seeks to compensate a spouse for lost career opportunities suffered to the advantage of the other spouse, the amount awarded does not indemnify the claimant for past contributions. Instead, it provides a capital sum representing the future value, as aliment, of the lost opportunity for career advancement. By contrast, a compensatory allowance, based on proof of past unjust enrichment, is inherently retrospective.

It does not turn on need but instead on a past contribution of one spouse to the enrichment of the other. [ 47 ] Concretely, this means that Mr. C. must bring proof for the distinct claims under

article 427 C.C.Q. and for support under the Divorce Act . If he fails to establish one $750,000 claim in whole or in part, there is no necessary reason why the difference should be "made up" with an amount attributed to the other remedy. The two claims rise and fall on the distinct evidence brought by him – he has the burden of proof for both claims – in respect of the different criteria applicable to each remedy. [ 48 ] As to the first of his two claims, the trial judge held that Mr. C. failed to establish unjust enrichment pursuant to the criteria relevant to

article 427 C.C.Q. and dismissed his claim for a compensatory allowance. [ 49 ] Mr. C. argues that the judge erred in law in two respects in dismissing that claim. First, she failed to analyze the various component parts of his claim for a compensatory allowance.

Second, the judge appeared to exclude the possibility of a compensatory allowance where the spouses are separate as to property and have excluded the application of rules pertaining to the family patrimony. [ 50 ] I see no error of law in the judge's understanding of law applicable to the compensatory allowance here. [ 51 ] Citing the judgment of the Supreme Court in P.(S.). v. R.(M.). , [12] the judge correctly identified the six requirements for unjust enrichment as adapted to the compensatory allowance. [13] Mr. C. has not shown that she failed to apply those criteria.

It is possible to discern a consideration of all elements of the claim over the course of her reasons, even if she did not structure her presentation in six points. In the end, she specifically stated that Mr. C. did not prove that Ms. R. enriched herself at his expense

(paragraph [69]). The failure to satisfy this criterion identified by the Supreme Court was fatal to his claim. [ 52 ] As to the second alleged error, the judge did not make the mistake of suggesting that spouses who are separate as to property cannot bring a claim under

article 427 C.C.Q. She said instead that the compensatory allowance is a remedy for unjust enrichment and, in the absence of proof thereof, it cannot be construed as a device for redistributing wealth on another basis. I take her comment that the compensatory allowance cannot "erase" the effects of separation of property to mean that the rules of matrimonial regime stand where, as in the present case, there is no proof of unjust enrichment (paras. [61] and [62]). There is no error of law here. [ 53 ] The judge decided, as a matter of fact, that Mr. C. did not make a "contribution, in property or services" within the meaning of

article 427 C.C.Q. that unjustly enriched his wife’s patrimony. [ 54 ] Mr. C. says the judge's measure of his contribution to the enrichment of his spouse is factually wrong, and that this mistake reflects a bias that husbands should support their wives notwithstanding their income disparity. [ 55 ] In refusing his claim for a compensatory allowance, did the judge err in her reading of the evidence in respect of Mr. C.'s contributions to the wealth of Ms. R.? [ 56 ] Mr.

C. says that his income represented about 20% of household revenue over the course of the marriage and yet he paid somewhere between 40% and 55% of the family's expenses. He contends that, based on her more substantial income, Ms. R. should borne more of the expenses of the marriage than she did. It was as if the Superior Court expected him to contribute as much or more than his wife to running the household, notwithstanding their income disparity, thereby reflecting a gender bias against him as a husband who earned far less than his wife.

He says that the judge's misreading of the respective contributions of the parties to the expenses of the marriage amounts to a mistake of fact that invites correction by this Court. [ 57 ] In my view, the judge made no reviewable error of fact or law when one considers the contributions of the spouses globally and the inherent difficulty in evaluating their financial worth. The Supreme Court has consistently held that evidence in respect of claims for a compensatory allowance must be measured flexibly, and not mathematically. [14] Her decision to dismiss Mr.

C.’s claim for a compensatory allowance is consonant with this approach and should not be disturbed. [ 58 ] As a matter of public order, the spouses' contribution to "expenses" (in French, " charges ") of the marriage is to be made in proportion to their respective means: 396. Les époux contribuent aux charges du mariage à proportion de leurs facultés respectives. Chaque époux peut s'acquitter de sa contribution par son activité au foyer. 396. The spouses contribute towards the expenses of the marriage in proportion to their respective means.

The spouses may make their respective contributions by their activities within the home. [ 59 ] Mr. C. is right to say that a compensatory allowance may be appropriate where one spouse – whatever that spouse's gender – has over-contributed to expenses to the advantage of the other and that this over-contribution is a source of unjust enrichment.

As Professor Goubau has written in respect of the factors relevant to the award of a compensatory allowance, "[é]tant donné que l’obligation de contribuer aux charges du mariage est une obligation proportionnelle, le facteur déterminant dans l’examen de la justification est celui du déséquilibre ". [15] This is no less true when spouses are separate as to property or have agreed privately between themselves that expenses should be divided otherwise than in proportion to their respective means. But all the contributions to "expenses" need to be considered under

article 396 C.C.Q. before one ascertains whether a spouse's share is proportionate, including those unpaid contributions made in the home. [16] In addition, this case reminds us of the perils associated with a narrowly mathematical approach to evaluating the compensatory allowance. [ 60 ] In his effort to detail the extent of his contributions, Mr. C. drew heavily on his skills as an accountant. Bills and receipts in hand, Mr. C. endeavoured to set out his disproportionately high share of the expenses of the marriage. His wife kept no such detailed records and Mr.

C. admitted at trial that the record he submitted of his wife’s contributions were estimates. Ms. R. presented her own estimates which favoured her position. The judge was charged with the difficult task of making sense of this in the context of a 27-year marriage. [ 61 ] Mr. C. disputed the amount of his wife's estimates, but he readily acknowledged that her contributions were substantial and that, in various areas of the family’s finances, they far outstripped his own.

He did not deny that she paid for virtually all of the family’s holidays; she paid for all of the nanny’s salary; she paid for the better part of the groceries; she paid most of the extraordinary costs of the Bar Mitzvah and Bat Mitzvah celebrations held for their two children. He answered that he paid the most rent and utilities and gave further examples of his contributions, such as restaurant expenses. He paid for most of the daughter’s schooling, although acknowledged that his wife paid for the son’s more expensive private school. [ 62 ] Mr.

C.'s presentation of his supposed over-contribution to expenses gives pause. Firstly, he admitted at trial having unreported income that he did not take into account in his calculations. He further acknowledged not using after-tax income in his calculations. He also did not readily recognize that he benefited from tax deductions for certain household expenses, including some of the costs of the nanny paid for by his wife. The judge also noted that Ms.

R. paid many smaller expenses of the children which, at the end of the day, often escape proper calculation and the judge exercised her discretion to take those into account (para. [66]). The combined effect of the under-inclusion of income and the ungenerous estimates he made of his wife’s contributions encouraged the judge, quite correctly in my view, to prefer Ms. R.’s account of family finances as more reliable.

According to her estimates, she paid over 60% of expenses from November 1990 to the date of the hearing. [ 63 ] In my view the judge was right to shy away from a mathematical calculation of each of the parties’ contributions, in property or services, to the enrichment of the other spouse. Care must be taken to adopt a flexible approach to measuring the worth of these contributions given the familial context in which they were made. [17] Gonthier J. observed in connection with the review of family

finances in this context that "this is an area where the parties have generally not kept documents that would provide evidence of each one's contribution". [18] Mr. C. would have us believe otherwise, at least in respect of his own monetary contributions to expenses, for which he presented a table setting forth their worth in fine detail. I am inclined to note that even in written argument on appeal, the picture Mr.

C. gives of the expenses of which he took charge is not always reliable. [19] He even recognized, when examined by his own lawyer, that he could not recall the exact manner in which certain expenses were divided. [ 64 ] The present case provides a telling example of how available bills and invoices from household expenses can give a false impression of sources of enrichment and impoverishment in marriage. One cannot help but observe that estimates from both parties leave much to the imagination as some of the ordinary expenses that one might expect of a couple in this income bracket remain unaccounted for.

When family life is happy and flourishing, bills are often not scrupulously kept by both spouses, at least not with a view to preparing for a dispute as to who paid for what in the salad days of the marriage. The bills that do survive and appear for an accounting at divorce very often paint an incomplete picture of domestic finances. Recourse to estimates, especially over the course of a long term marriage with children, is the norm, and that is what happened here. It would take proof of a palpable and overriding error to have the judge's findings on this disturbed. [ 65 ] Mr. C. says that even Ms.

R.'s numbers favour his claim given the lesser amount of his income. Even if he paid only 40% of the expenses, as his wife's estimates suggest, that is above the amount that he should have paid given their income disparity. He posited that he earned about 20% of the family income, and that he thus paid too much. While this might not justify a compensatory allowance of $750,000, he says he is nevertheless deserving of a substantial amount given his impoverishment to his wife's advantage. [ 66 ] Mr.

C. omits to consider that the compensatory allowance is not an accounting of paid expenses but a remedy for unjust enrichment in marriage. He cannot seek out compensation for his ordinary contribution to expenses, but only to those excess contributions that enriched his wife. [20] He did not convince the trial judge that he overcontributed in a manner that led to his impoverishment or to his wife’s enrichment. The judge also decided that Mr. C. had not convinced her that Ms. R. had failed to meet her own obligation to contribute to the expenses of the household (para. [69]).

He failed to meet his burden of proof in the judge's eyes. [ 67 ] In my view, an additional reason for setting aside his proposed calculations is Mr. C.’s failure to factor in the non-financial component of the parties’ contributions to running the household and their impact on his claim for a compensatory allowance.

Article 427 C.C.Q. makes plain that the relevant contributions may be in property or services and – critical to the compensatory allowance – "contribution to the expenses of the marriage" may be made through their respective activities in the home (article 396, paragraph 2, C.C.Q.).

It is important here to recall that the Supreme Court has encouraged what it calls a "global" appreciation of contributions for determining the rightness of a claim for a compensatory allowance. [21] Rather than just toting up warring columns of expenses paid, a court charged with ruling on a compensatory allowance must also take into consideration the contributions of the spouses at home in determining whether one spouse enriched the patrimony of the other. [ 68 ] The judge’s comments are not fulsome on this point: she observed simply that "[p]endant le mariage, chaque

partie a joué son rôle auprès des enfants" (para. [74]). There is no question that Mr. C. was involved in carpooling and helped with the children’s meals. His wife worked long hours; he testified, for example, to the fact that he took charge of the children’s needs in the mornings that she went in early to work. At trial, Mr. C. underscored in particular his involvement in the children’s sporting activities. [ 69 ] But while Mr. C. was not an uninvolved father, he did recognize that his wife generally spent more time with the children notwithstanding the demands of her work.

He also acknowledged that most of the housework was done by the nanny paid for by his wife, adding that he himself did not do laundry and the like. Ms. R. generally worked at the office three days each week and Mr. C. recognized that she was more available for the children at other times. In the period leading up to separation, Mr. C. worked in Ottawa and, perforce, was less available, leaving Ms. R. with the principal role at home.

Sometimes, the primary-income earner of the family relies on the other spouse to take on the better part of work in the home, thereby creating a source of unjust enrichment calling for redress at divorce. This is not such an instance. If anything, it was Ms. R. who, in accepting to work from home, took on primary responsibility for managing the household and contributed more on the home front than did her husband. [ 70 ] The judge did what was required of her: she measured the evidence of both parties' financial and non-financial contributions to the household and determined that Mr.

C. had not contributed to the enrichment of his spouse's patrimony in a manner that justified the award of a compensatory allowance. Charged with the delicate task of unravelling this family's finances after things had gone wrong, the judge exercised the discretion afforded to her by law and the appellant has shown no reviewable error in this regard. [ 71 ] Does the refusal to award a compensatory allowance reflect a gender bias? Mr.

C. suggests that the judge failed to consider his contribution to expenses – a smaller one than that of his wife – as anything other than an undercontribution because of the bias against husbands who are not primary income-earners in marriage. [22] Mr. C. points to Ms. R.’s $2.3M in accumulated savings as evidence that he contributed to enriching his wife. The judge should have assumed that a portion of these funds reflected the joint efforts of the spouses in this long-term marriage and that Ms.

R. was able to set the money aside in her name because of her husband’s excess contribution to the expenses of the marriage. [ 72 ] I disagree that there is a sign of gender bias in the judge’s reasoning on this point. It would have been wrong in law for the judge to have presumed that part of Ms. R.’s savings was the fruit of the joint economic enterprise of the marriage. The earnings she set aside were not common or acquest property, any more than the savings he was able to accumulate.

A husband might have a claim to part of his wife's savings as a compensatory allowance, even separate as to property, but the onus was on him to make out unjust enrichment by his wife. The judge evaluated the evidence he brought and was plainly mindful of the fact that her reading of the evidence relating to a compensatory allowance had to be flexible. She understood that it was a long-term marriage and that under

article 427 C.C.Q., as interpreted by the courts, Mr. C. was not to be held to a dollar-for-dollar demonstration of the connection between the various sources of his impoverishment and the alleged enrichment of Ms. R.. [23] But these flexible rules on causation do not amount to a presumption of unjust enrichment, and the judge held that Mr. C. failed to discharge his burden of proof. She was of the view that the $750,000 amount claimed has no plausible causal link to wealth amassed by Ms. R.. After reviewing the evidence, the judge concluded at paragraph [70] that her savings came not from Mr.

C.’s overcontribution at home but from her years of hard work. I see no error there, much less evidence of a gender bias.

[ 73 ] In the absence of proof of unjust enrichment pursuant to

article 427 C.C.Q. Mr. C.’s $750,000 claim amounts to a request for a redistribution of assets as if the parties were married under a regime such as the partnership of acquests or community of property. In sum, Mr. C. is asking either for a share of his ex-wife's assets over which he has no entitlement or for a complete reimbursement for all his contributions to the expenses of the marriage, and then some. The compensatory allowance has neither of those roles.

It is a remedy for unjust enrichment and the judge has not been shown to have erred in deciding that no such enrichment has been made out here. 3) Claim for a Lump Sum of $750,000 [ 74 ] Mr. C. contends that his claim for a lump sum has two distinct bases. First, he deserves compensatory support under

section 15.2 of the Divorce Act . Secondly, there is an additional, non-compensatory basis for his lump sum alimentary claim, also under

section 15.2 . He says the breakdown of the marriage has had, as a consequence, a loss of his future economic security. Mr. C. was counting on some of his wife's $2.3M savings to supplement his own retirement income so that he might enjoy a lifestyle comparable to that enjoyed during the marriage in his old age. [ 75 ] Mr. C. further suggests that the judge wrongly penalized him for earning less money than his wife in determining support, further reflecting a gender bias.

He says that if a woman asked for a lump sum based in a comparable context of income disparity, she would have obtained it. [ 76 ] When invited to identify a sign of gender bias against men who earn less than their wives in the judgment, counsel for Mr. C. pointed to paragraph [78] of the judge’s reasons on the lump sum claim: "[i]l a mené sa carrière selon ses désirs et son bon vouloir : il doit maintenant en assumer les conséquences sans en faire payer le prix à Madame". [ 77 ] Does this comment betray a predisposition to deprive Mr. C. of support simply because he is a man?

Did the appellant find himself disqualified from receiving lump sum aliments under the Divorce Act in a way that a woman in a long-term marriage like his own would not have? [ 78 ] In my view, Mr. C. has not succeeded in showing a reviewable error in the judge’s decision to deny him a lump sum on either of the two bases advanced.

Moreover he has not succeeded in convincing me that the refusal to grant a lump sum reflects a gender bias against husbands with lower incomes than their wives. [ 79 ] First, it bears recalling that this is not an instance where one spouse is entitled to claim for what in Moge [24] the Supreme Court called "compensatory" support. One cannot say that the role the husband played in the marriage, including his involvement with the children, placed him in circumstances that justify support to compensate for lost professional opportunities that duties taken up in married life required him to forego.

He had his own reasons for changing jobs over time, and his employment record cannot be explained by sacrifices he made for his spouse’s career during the marriage. Mr. C.'s situation is vastly different from that of spouses who work in the home and give up professional opportunities as their partners advance their own careers and salaries. Had he stayed at home, left jobs or otherwise slowed the advancement of his own career in order to free his wife up to work, the matter would be different.

The C.-R. household was a two-income family with two careers that started at roughly the same point and continued on parallel if uneven paths. It was not a marriage in which one spouse postponed career goals to look after the children in order to free the other up to advance in the workplace. Mr. C. was not a "stay-at-home father". His career choices were not dictated by what L’Heureux-Dubé, J. referred to in Moge , quoted above, as "the division of labour" between the spouses.

In other words, it was not the respective roles taken up by the spouses in the home that resulted in the financial disparity at divorce, nor did the division of labour through the marriage explain Mr. C.'s future financial prospects. Ms. R. may be the economically advantaged spouse in this marriage, but this has not resulted from sacrifices that Mr. C. made in respect of his career for to the advantage of his wife’s circumstances in a manner that gives him a right to support in the future. [ 80 ] There is no basis for claiming a lump sum with a compensatory orientation according to the criteria in Moge .

By providing funds to meet alimentary needs, lump sum compensatory support can in some circumstances promote substantive equality between spouses at divorce – be they women or men – but it does not provide them with a de jure entitlement to the savings of their spouse by the mere fact of a marked income imbalance in a long-time relationship. [ 81 ] Mr. C. has also failed to show how the non-compensatory objectives of an alimentary claim identified by the Supreme Court in Bracklow [25] could sustain his claim for a lump sum.

In some circumstances, a lump sum can be awarded as a means for the economically disadvantaged spouse to maintain a standard of living that he or she enjoyed during the marriage and which the breakdown of the marriage renders impossible to achieve. But it remains alimentary in character. He is a qualified accountant in Canada and in the United States; he has a government job in his field that provides him present financial independence. As it happens, at the time of the trial Mr. C. had a higher paying job, with better conditions, than his wife.

His complaints of the rigours of life in the north have no relevance to an entitlement to a lump sum for meet his present alimentary needs. [ 82 ] Does Mr. C. have a non-compensatory claim to a lump sum representing a share of his wife’s accumulated savings to secure his retirement? At 56 years of age, Mr. C. feels he has no financial security and no capital with which he can purchase a home or rely upon in his old age. He argues, in essence, that he was counting on the accumulated capital of his wife for a comfortable retirement and it is only the breakdown of the marriage that deprives him of fair access to it.

He said the judge failed to address his argument that where one spouse earns substantially less than the other in a long-term marriage, he or she should be able to secure a lump sum payment in order to "benefit from the parties’ accumulated wealth and accumulated earnings from the marriage at the time of retirement", as he writes in his factum. [ 83 ] It is true that his pension entitlement, given the relatively late age at which he began his new job, is modest. It is true, too, that RRSP savings leaves him in a less enviable position than Mr. R. in preparation for retirement.

I note, however, that he and his wife expressly renounced claims to one another’s pensions, not only by adopting a separation as to property but by legally opting out of the public order family patrimony regime in 1990. To my mind, this expressed his sense, shared by his wife at the time, that between them there was no expectation that saving for retirement was part of the joint venture in this marriage. Like much of the rest of the financial

arrangements between them, each spouse was responsible for his or her own retirement planning. [ 84 ] In the circumstances of this marriage, it was unreasonable for him to have entertained the expectation that his wife’s savings would sustain his retirement given the way in which they organized their finances over the life of the union. They planned their present finances on an entirely separate basis and the pattern they established suggests that they planned their future on the same separate basis. Their "joint economic endeavour", insofar as it existed, turned on the children and their needs.

Apart from the financial attentions they directed at their children – significant to be sure – their life together was not an extravagant one. Mr. C. described it at trial as "a reasonable although modest lifestyle". They did not accumulate property together. They lived in a rented apartment, then a rented upper duplex, and owned no country house. They did take expensive holidays as a family and spent considerable amount on the children’s education and their activities, to be sure, but in the main their joint economic endeavour was limited to that.

That joint project was necessarily a finite one and it is not unfair to suppose that the spouses had expected, after the children left home, to maintain the pattern established between them whereby each spouse attended to his or her own finances and accumulated his or her own capital for the future. In this sense, Mr. C. has not lost access to a source of future financial security to which he has, today, a legitimate alimentary claim.

His situation of relative financial disadvantage has not been caused by the marriage or its breakdown but, as the judge said, by his own choices and priorities. [ 85 ] The relative imbalance between the capital his wife has set aside and his own savings is not, in this case, a financial consequence of the breakdown of the marriage within the meaning of subsection 15.2(6) of the Divorce Act . [ 86 ] The judge was of the view that the factors and objectives set forth in

section 15.2 of the Divorce Act did not justify the award of a lump sum. Her comment in paragraph [78] represents the conclusion of her analysis and, when placed in context, shows no gender bias against men who earn less than their wives. [ 87 ] The judge correctly framed the issue in asking whether Mr. C. had established his entitlement to a lump sum of $750,000 to remedy the economic hardship suffered as a result of the marriage and its breakdown. She made special note that his claim turned specifically on his lost long-term financial security (paragraph [73]).

After quoting the relevant factors and objectives in subsections 15.2(4) and 15.2(6) of the Divorce Act , the judge observed Mr. C.’s present financial circumstances: a job with a salary of $115,000 and a pension fund, some consulting income and a stake in a small business. She then explained her view that his financial insecurity, to use Mr. C.’s expression, did not arise as a result of the breakdown of the marriage but was due to the peripatetic career path he chose to follow.

The choices to change jobs and work for himself from time to time were his own. [ 88 ] The characterization is a fair one and is plainly borne out by his employment record. As we have seen, Mr. C. rarely stayed with a single employer or a single self-employment venture for a long period of time. He has fewer savings because he freely chose a career path that led to a leaner income. His wife, on the other hand, worked like a Trojan in a single job and, for a time, reaped the benefits therefrom. Mr. C. preferred, for reasons of his own, to change his employment situation often, by contrast to Ms.

R. who stayed with the same employer for the whole of the marriage. This explains the judge’s comment at paragraph [78]. The comment has nothing to do with Mr. C.’s gender, and everything to do with his employment record in the context of this marriage. [ 89 ] In my view, the judge made no mistake in denying Mr. C. lump sum support. The claim was not made out because he failed to convince the judge that his "economic disadvantage" within the meaning of subsection 15.2(6) of the Divorce Act is attributable to the marriage or its breakdown.

His disadvantage as against that of his wife arose because of the career path he chose to pursue. The wife accumulated wealth over the course of the marriage because she worked hard and, except for the children, lived according to a lifestyle that her husband could himself match with his lesser income. It should be noted that Mr. C. saved money too. For him to have set aside $400,000 (admittedly the better

part in RRSPs, saved out of before-tax income) is not insignificant considering the total income he earned over the life of the marriage. [ 90 ] The judge rightly observed in paragraph [79] of her reasons that a lump sum is not a device for redistributing wealth in marriage and must satisfy the alimentary purpose as spoken to in

section 15.2 of the Divorce Act . Measuring the needs and means of the parties going forward, the judge decided that Mr. C. did not meet those requirements. He has failed to convince me that she was mistaken in that regard. *** [ 91 ] I would dismiss the appeal. The judge awarded no costs at trial. In light of the nature of the proceedings, I would do the same on appeal. NICHOLAS KASIRER, J.A. [22] In service of this argument, he quotes an unfortunate comment allegedly made by his wife during a row in 2000: "Husbands support their wives and families. Wives don’t support husbands". Needless to say, Mr.

C.’s reporting of the remark is not evidence that his wife uttered the statement and, even if she did, that it established his claim.