Appellant L.-M.-P. Redacted

Transcription

File No. 33749
SUPREME COURT OF CANADA
(ON APPEAL FROM A JUDGMENT OF THE QUÉBEC COURT OF APPEAL)
BETWEEN:
L.M.P.
APPELLANT
(Appellant /
Incidental Respondent)
- and L.S.
RESPONDENT
(Respondent /
Incidental Appellant)
APPELLANT’S FACTUM (public version)
Ms. Miriam Grassby
Grassby & Associés
Suite 200
1350 Sherbrooke Street West
Montréal, Québec
H3G 1J1
Ms. Marie-France Major
McMillan LLP
Suite 300
50 O’Connor Street
Ottawa, Ontario
K1P 6L2
Tel.: 514 844-1550 ext. 1
Fax: 514 844-5826
[email protected]
Tel.: 613 232-7171 ext. 131
Fax: 613 231-3191
[email protected]
Counsel for the Appellant
Agent for the Appellant
Henri A. Lafortune Inc.
Tel.: 450 442-4080
Fax: 450 442-2040
[email protected]
2005 Limoges Street
Longueuil, Québec J4G 1C4
www.halafortune.ca
L-3339-10
-2-
Mr. Donald Devine
Devine Schachter Polak
Suite 920
1310 Greene Avenue
Westmount, Québec
H3Z 2B2
Mr. Pierre Landry
Noël et Associés
111 Champlain Street
Gatineau (Québec)
J8X 3R1
Tel.: 514 939-2199
Fax: 514 937-6245
[email protected]
Tel.: 819 771-7393
Fax: 819 771-5397
[email protected]
Counsel for the Respondent
Agent for the Respondent
-iTABLE OF CONTENTS
APPELLANT’S FACTUM
PART I
–
OVERVIEW
OF
POSITION
STATEMENT OF FACTS
Page
AND
......................................... 1
Introduction
......................................... 1
Summary of facts
......................................... 4
History of the proceedings
......................................... 9
Motions instituted
......................................... 9
Superior Court judgment
......................................... 9
The Appeal Court judgment
....................................... 13
PART II
–
....................................... 14
PART III
– STATEMENT OF ARGUMENT
QUESTIONS IN ISSUE
Overview of the arguments
....................................... 15
....................................... 15
Issue 1. Are there any circumstances when the Court may
permit a de novo hearing of a spouse’s right to support
provided in an Agreement, when there has been no
change of circumstances nor any provision for a review?
.................................. 16
A-
Separation Agreements in Québec
.................................. 16
B-
Validity of signed agreements as per Miglin
.................................. 17
C-
The difference between a request for a variation of
support pursuant to article 17 of the Divorce Act
and a review
.................................. 18
Issue 2. May the Court cancel a spouse’s obligation to pay
support to a disabled spouse as a result of a lack of effort
to seek employment outside the home when she is
disabled and in particular when the payor spouse had
always acknowledged and confirmed her disability?
.................................. 25
- ii TABLE OF CONTENTS
Page
Issue 3. A spouse who receives a disability income has
fulfilled her obligation pursuant to articles 15.2(6)d) and
17(7)d) of the Divorce Act
.................................. 33
Issue 4. If the Court determines that a spouse who is
receiving support is capable of earning income and
refuses to look for employment, the spousal support
should be reduced by any additional net income she is
deemed to be able to earn rather than be annulled
.................................. 36
PART IV –
SUBMISSION CONCERNING COSTS
....................................... 40
PART V
– ORDERS SOUGHT
PART VI
– ALPHABETICAL TABLE OF AUTHORITIES ....................................... 41
PART VII –
....................................... 40
LEGISLATION
Article 294.1 of the Code of Civil Procedure, R.S.Q. c. C-25
.................................. 42
Articles 15 and 17 of the Divorce Act, R.S.C. 1985, c. 3
(2nd Supp)
.................................. 43
________________________
-1Appellant’s Factum
Overview of Position and
Statement of Facts
PART I – OVERVIEW OF POSITION AND
STATEMENT OF FACTS
INTRODUCTION
1.
This matter raises issues of the conditions under which spousal support payable
pursuant to a separation agreement incorporated into a Divorce judgment may be
cancelled or modified, and in particular, in cases where the recipient spouse is
disabled and is receiving disability insurance payments.
2.
When Appellant applied for a retroactive increase of child support (AR, Vol. I,
p. 45), Respondent counter-petitioned requesting the cancellation of spousal
support pursuant to article 17(1)(a) of the Divorce Act (infra, p. 45) alleging, entre
autres, that he could no longer afford to pay spousal support and that Appellant
should be working (AR, Vol. I, p. 53). In the past, Respondent had consistently
maintained to her insurer, the Quebec Pension Board and the tax department,
that Appellant was unable to work. Allowing him to argue the opposite when she
asked for an increase of child support should not have been entertained.
3.
Respondent did not argue that Appellant’s health had improved since the
Separation Agreement but rather that contrary to the opinion of both her treating
doctor and the insurance company’s expert, she could work. The trial judge
listened to expert evidence. Despite there having been no material change of
circumstances since Respondent undertook to pay support (other than an
increase in his income), she cancelled Respondent’s obligation to pay based on a
finding that Appellant could work (AR, Vol. I, p. 2). The trial judge should have
treated the matter pursuant to article 17(4.1), but instead treated it as if it were
being heard pursuant to article 15.2 of the Divorce Act (infra, p. 44).
4.
Statement of Facts
The trial judge indicated in her judgment that Appellant could apply to the
Superior Court for spousal support as of the date Respondent’s obligation to pay
her support was cancelled. By so doing, she put Appellant in a situation where
she would have to request spousal support without the contractual rights
contained in the parties’ Agreement and after a judge had found her capable of
working. This put Appellant in a totally different situation from that she was in
when she had the right to rely on a contractual undertaking to pay support
incorporated into a Divorce judgment.
5.
The Appeal Court maintained the first instance judgment with the exception of the
quantum of support for a six-month period (AR, vol. I, p. 32). The judges took the
position that since the trial judge heard the witnesses, without an error in law they
had to accept her appreciation of the facts. Instead they should have found that
the trial judge erred in law when she allowed herself to consider Respondent’s
arguments that Appellant could work in that he was not arguing that Appellant’s
health had improved since the Agreement, but rather that she had always been
capable of working.
6.
Although the trial judge did not say in her judgment that not looking for work was
the equivalent of a change of circumstances, the Court of Appeal referred to a
line of Quebec cases, T.(A.). v. J.(L.), EYB 2000-20402 (C.A.) (Appellant’s Book
of Authorities, hereafter A.B.A., Tab 13), Droit de la famille - 09408, 2009 QCCA
397 (A.B.A., Tab 3), Droit de la famille - 978, J.E. 91-680, EYB 1991-58828
(C.A.) (A.B.A., Tab 2) (AR, Vol. I, p. 39), and doctrine, Michel TÉTRAULT, Droit
de la famille, 3rd edition, Montréal, Éditions Yvon Blais, 2005, p. 852 (AR, Vol. I,
p. 38) to the effect that a refusal to look for work or the passage of time, may
constitute a change of circumstances. The Court found that this case law gave
the trial judge the right to consider if Appellant should have been working and if
she determined she should have been working she then had the right to annul
her support without any other change of circumstances.
7.
Statement of Facts
We respectfully submit that the theory which provides that not looking for work or
the passage of time can constitute a change of circumstances is not a proper
interpretation of what constitutes a change of circumstances. This theory allows a
judge to circumvent the need to prove a material change of circumstances as
required by article 17(4.1) of the Divorce Act and Willick v. Willick, [1994]
3 S.C.R. 670 (A.B.A., Tab 15).
8.
Both the trial judge and the Appeal Court gave far too much weight to the issue of
self-sufficiency. Leskun v. Leskun, 2006 SCC 25 (A.B.A., Tab 8) provided at
paragraph 27 that “failure to achieve self-sufficiency is not breach of “a duty” and
is simply one factor among others to be taken into account.”
9.
The trial judge and the Appeal Court judges ignored the three-pronged foundation
on which Appellant’s spousal support was based. This was an error in law.
Appellant’s right to support was contractual, compensatory, and based on means
and needs. The Supreme Court has clearly outlined the principles of support in
Canada in Moge v. Moge, [1992] 3 S.C.R. 813 (A.B.A., Tab 12) and in Bracklow
v. Bracklow, [1999] 1 S.C.R. 420 (A.B.A., Tab 1).
10.
This Court has been clear that in cases of contractual rights, only a material
change of circumstances can permit the Court to vary or annul spousal support.
Although the case of Willick dealt with the variation of a child support order, in the
case of G.(L.) v. B.(G.), [1995] 3 S.C.R, 370 (A.B.A., Tab 6), Justice L’HeureuxDubé concluded at paragraph 48 that the test of significant change that was set
forth in Willick applies to motions to vary orders for spousal support:
Variation of support orders is governed by s. 17 of the current
Act. Section 17(4) states that before it varies a support order
"the court shall satisfy itself that there has been a change in the
condition, means, needs or other circumstances of either former
spouse or of any child of the marriage". This provision applies to
any variation of a support order, whether in favour of a spouse
Statement of Facts
or of the children. Consequently, the test developed in Willick v.
Willick, [1994] 3 S.C.R. 670, in connection with support for
children applies mutatis mutandis to the variation of spousal
support. To begin with, the judge must determine whether there
has been a change in the parties' situation since the last
support order.
11.
If the passage of time or the lack of effort to look for work can constitute a
material change of circumstances, this means that in almost any case involving a
spouse who does not work, the other spouse can obtain a de novo hearing.
Essentially, this would permit any payor spouse to address the Court for a de
novo review of his obligation at any time, i.e. after any unspecified period in the
hope that the trial judge would agree that ‘enough’ time had gone by. Despite no
term having been agreed to, interpreting the passage of time as a material
change of circumstances allows the Court to end a contractual obligation on
which the payee spouse should be able to rely.
12.
Appellant also contends that if a separation agreement does not provide that a
recipient spouse should make efforts to be self-sufficient, not seeking
employment may not be grounds for a variation or a termination of support.
13.
If, as in the present case, a spouse is receiving disability payments based on a
finding of a permanent disability, this income should be considered the equivalent
of an earned revenue and meeting the obligation to attempt to gain financial selfsufficiency.
Summary of facts
14.
When the parties married on May 14, 1988 in Montreal, Respondent was 27, had
a law degree, and was employed by a downtown Montreal law firm. Appellant
was 23 years old, did not have a high school leaving certificate, and was a sales
representative for Revlon, a cosmetics company.
15.
Statement of Facts
A year after the marriage, Appellant was diagnosed with multiple sclerosis and
has not worked since. Since her diagnosis in 1989, she has always been treated
by Dr. Michel Aubé, of the Montreal Neurological Institute. On his advice, the
parties decided to wait five years before having children. Erik was born in 1993
(now 17) and Alexa was born in 1998 (now 12).
16.
Over time, the sensory problems in Appellant’s hands got worse, as did her
fatigue. Her need for medication increased. Appellant initially received short-term
disability insurance payments from Revlon’s insurance plan and subsequently in
1990 (one year later) received long-term disability of $16,956 net a year which
she still receives to this day (Exhibit D-51, AR, Vol. IV, pp. 128-150). Appellant’s
long-term disability insurance contracts states: "after the initial assessment
period, a person is considered disabled if disease or injury prevents him from
being gainfully employed" (AR, vol. IV, p. 135). In 1997, when Appellant was
pregnant with Alexa, the parties agreed Appellant would need full time help and
hired a nanny. In 2001, Dr. Louis E. Roy was retained by the insurance company
and he concluded that Appellant was permanently disabled and was incapable of
participating in rehabilitation programs (A.R., Vol. I, pp. 75-76, AR, Vol. I, pp. 7787, Exhibit P-36, AR, Vol. III, pp. 122-137). Until the separation, her disability
payments were deposited in the parties’ joint account and were used for the
family’s needs.
17.
Throughout the marriage, the parties’ division of labour was a traditional one.
Respondent pursued his career as a commercial litigation attorney and Appellant,
was responsible for the children and the household.
18.
The parties separated in April 2002 and obtained their divorce on May 13, 2003.
When the Consent to Judgment was signed on April 30, 2003 it took into
consideration Respondent’s income of approximately $165,000 and Appellant’s
disability income of $16,956.
19.
Statement of Facts
The Divorce judgment ratified the parties’ Consent to Judgment on Provisional
Measures and Accessory Measures (referred to as the Agreement) (Exhibit P-1,
AR, Vol. III, pp. 72-89), providing entre autres for annual child support of
$9,108.67, the manner special expenses would be shared, the division of the
assets and liabilities, a renunciation on the part of Appellant to request a
compensatory allowance or lump sum amount, life insurance of $250,000 to be
maintained throughout Appellant’s lifetime, and the payment of annual indexed
spousal support of $44,256. By the date of trial, with indexation spousal support
was $51,533.76 or $4,294.48 per month.
20.
While the Agreement provided that Respondent would pay private school fees for
their son at Selwyn House and their daughter at the The Study, totalling $23,000
for both children, within a year he informed Appellant that he could not afford to
pay for two children. Appellant was unwilling that only their son be in private
school and Respondent stopped paying all private school fees until Erik began to
attend Loyola High School at a much lower cost in 2006.
21.
The preamble of the Agreement indicated that the factors in article 15.2(4) of the
Divorce Act (infra, p. 44) as well as the objectives in article 15.2(6) (infra, p. 44),
including
sub-paragraph
15.2(6)d)
(infra,
p. 44)
had
been
taken
into
consideration. The penultimate paragraph of the preamble provided that the
parties intended the Agreement to be final and that Respondent would maintain
insurance on his life for Plaintiff’s lifetime. The Agreement did not provide for a
term for the spousal support nor for a date of review. Neither did it include any
obligation for Appellant to seek employment.
22.
After the separation, Appellant purchased a home with her share of the family
patrimony and continued to be a full-time mother. Her daily life was centered on
the children's needs and activities. In addition to her medication, one of the ways
she managed her medical condition was by resting when the children were not
Statement of Facts
with her and using her energy for when they were. She and the children lived on
her disability income, spousal support, and child support.
23.
By 2007, Appellant had incurred debts of $57,575. (Statement of Income and
Expenses dated August 21, 2007, AR, Vol. I, pp. 69-74). Based on what she saw
of Respondent’s lifestyle, she concluded that his income must have increased.
After reading about the Supreme Court judgments D.B.S. v. S.R.G., T.A.R. v.
L.J.W., Henry v. Henry and Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R.
231, she consulted an attorney who wrote to Respondent for financial disclosure
on April 3, 2007 (Exhibit P-3, AR, Vol. III, pp. 90-92).
24.
Respondent's attorney responded on May 3, 2007, taking the position that based
on a possible interpretation of the Agreement, Respondent might have been
overpaying child support and Appellant might owe Respondent money. He also
indicated that if she were to request an increase of child support he might request
that Appellant's spousal support be annulled as he would argue that she could
work (Exhibit P-4, AR, Vol. III, pp. 93-95, at p. 94). He wrote:
Accordingly, and pursuant to review of your letter dated April 3,
2007, should your client so continue to desire to re-address the
child support payable, it may be necessary to review the payment
of child support… on a retroactive basis…
In addition, and on another note, Me Samuel has mandated the
undersigned to address your client’s right to the continued
payment of spousal support, as our client verily believes that he
has honoured the spousal support payments in an honourable
manner and that your client had reasonable and sufficient time to
seek out employment, and is capable of seeking out and securing
gainful employment, and to render herself financially autonomous.
25.
Until the letter from his attorney in 2007 (Exhibit P-4, AR, vol. III, pp. 93-95)
responding to her request for information in regard to child support, Respondent
had taken the position that Appellant was unable to work. In particular:
a.
Statement of Facts
Respondent accompanied Appellant to her medical appointments and
prepared the forms she needed to provide to the insurance company
indicating that she was unable to work (AR, Vol. II, pp. 4-5, pp. 115-116).
b)
He represented her before the Quebec Pension Board, arguing as follows
(Exhibit P-7, AR, Vol. III, p. 97):
Son procureur soutient que depuis 1989, l’appelante n’a
plus la capacité physique d’occuper de manière régulière un
travail rémunérateur en raison de sa maladie qu’il décrit
comme sévère et permanente.
c.
In July 2001, Respondent wrote to Appellant’s treating doctor, Dr. Aubé to
ask for any suggestions he might have prior to Appellant’s meeting with
Dr. Roy who was mandated by the employer’s insurance company (Exhibit
P-40, AR, Vol. IV, p. 112):
Afin d’éviter le genre d’expérience vécue à l’occasion de la
rencontre avec le Dr. Jacques Lachapelle chez Les
Neurologues de Maisonneuve, nous apprécierions toute
suggestion que vous pourriez avoir à l’endroit du Dr. Roy ou
de cette convocation.
Vous pouvez rejoindre mon épouse, en tout temps à l’un
des numéros suivants … Quant à moi, je peux être rejoint
au bureau…
d.
In August 12, 2002 Respondent wrote to Revenue Canada asking for
clemency with regard to the treatment of arrears of his income taxes
(Exhibit P-8, AR, Vol. III, p.100, at p. 101):
S’ajoute à ce qui précède l’état de santé précaire et
grandement détérioré de mon épouse, laquelle a subi six (6)
nouvelles poussées de sclérose en plaque au cours des
deux (2) dernières années (voir extrait du dossier médical cijoint). Nonobstant cette contrainte tout à fait involontaire qui
nous a obligé, dans le passé, d’engager une domestique
pour aider au ménage et à la garde de nos enfants, …..
Statement of Facts
Contenu (sic) de ce qui précède, je vous demande bien
humblement de donner suite et d’accepter ma demande
d’annulation et de renonciation d’intérêts et pénalités et ose
croire que même s’il s’agit d’un pouvoir discrétionnaire qui
est exercé que de façon exceptionnelle, les circonstances
de mon dossier, tant ... qu’au niveau intangible (maladie
grave de mon épouse) militent en faveur d’une réponse
affirmative
History of the proceedings
Motions instituted
26.
Since the child support Respondent was paying was well below what his 2007
and 2008 income would indicate, he should be paying pursuant to the Quebec
Child Support Guidelines (AR, Vol. I, p. 14). On May 14, 2007 Appellant served a
Motion to Vary Accessory Measures, requesting a retroactive and prospective
increase of child support. (AR, Vol. I, pp. 45-52) She did not request an increase
of spousal support.
27.
Respondent responded by a Motion to Vary Accessory Measures asking entre
autres for a reduction of spousal support to $2,500 per month until the end of
December 2008, and cancellation of spousal support thereafter (AR, Vol. I, p.5368).
Superior Court judgment
28.
At trial Appellant testified that she was unable to work because of her ill health
and the fatigue caused by her illness. Dr. Aubé testified both as her treating
doctor and as an expert to the same effect.
29.
There was also a report in the file which had been served on Respondent
pursuant to a Notice of Filing of Medical Report pursuant to article 294.1 C.C.P.
(infra, p. 42) more than sixteen months (AR, Vol. I, p. 77) prior to trial by Dr. Louis
- 10 Appellant’s Factum
Statement of Facts
E. Roy retained as an expert by the insurance company in 2001. He had found
that Appellant was permanently disabled and not a candidate for rehabilitation
treatments. This report formed part of Appellant’s medical records, was referred
to by both experts, and had been produced by Respondent as an attachment to
one of his own proceedings (AR, Vol. I, pp. 91-97). Nevertheless, although the
Notice requiring the attendance of the author of a written statement and/or report
(AR, Vol. I, pp. 120-121) had been served by Respondent’s attorney only three
working days prior to trial, the trial judge refused to allow Appellant to produce
Dr. Roy’s report. She did however allow the fact that the insurance company’s
expert had found that she was permanently disabled to be entered into the
record. The refusal to produce this report which was in fact already part of the
record was appealed but was not dealt with by the Court of Appeal.
30.
Appellant argued that the Agreement was negotiated on the basis of her being
unable to work. Her contribution to her self-sufficiency was her permanent
disability income. The Agreement did not provide that she had an obligation to
become self-sufficient or look for employment. There had been no term set for
the payment of spousal support nor was any review foreseen. There was nothing
unforeseeable about her lack of employment. All the factors and objectives of the
Divorce Act had been taken into consideration prior to the signing of the
Agreement. Unless there was a change of circumstances, Respondent could not
obtain a variation of the spousal support he had undertaken by contract to pay
her.
31.
Respondent argued that support should be annulled because of his disastrous
financial situation for which he blamed Appellant in great part. He also testified
that Appellant could work and when the Agreement had been signed that she had
undertaken verbally to him that she would seek employment. This was denied by
Appellant. He testified that he had embellished Appellant’s medical situation for
the family’s benefit (AR, Vol. III, pp. 52-53).
32.
Statement of Facts
The initial Motion was served in 2007 but the case was only heard in June 2009
at which time Appellant continued to suffer from fatigue, often very extreme and
was obliged to take frequent naps. She also experienced joint pain, anxiety,
numbness, balance and bladder control problems as a result of her illness. She
continued to take multiple medications and daily injections. She was clear that
she could not work because of her health (AR, Vol. II, pp. 9, 21, 28, 29, 35),
although the trial judge stated in her judgment that Appellant was not working
because she feared losing her disability insurance payments.
33.
Appellant’s treating doctor, Dr. Aubé, also testifying as an expert, provided a
detailed report in which he chronicled the progression over 20 years of her
disease and explained that in his opinion that she could not work. Respondent's
expert, who had met once with Appellant, concluded that Appellant might be able
to work 20-25 hours a week (AR, Vol. III, p. 44). Dr. Aubé explained to the Court
why he did not agree with Respondent’s expert, maintaining his position that
Appellant was not able to work (AR, Vol. II, pp. 154-162, 180-181, 207-208).
34.
Based on Appellant’s insurance policy in the Table of Benefits at page B-TBD 1,
were she to work, once she earned $4,719 every additional dollar would reduce
her disability income dollar for dollar (Exhibit D-51, AR, Vol. IV, pp. 151-202, AR,
Vol. I, pp. 165, 166-168). Obviously, if she were able to work for any significant
number of hours a week, the insurance company would question her disability.
Were she to find work, lose her disability payments, and subsequently lose her
employment, she would thereafter be without coverage for the future (AR, Vol. I,
pp. 157-165) as multiple sclerosis is a degenerative disease. This would
constitute a major financial loss for her since she has a right to her disability
income until she reaches the age of 65.
35.
The trial took place on June 8, 9, 10 and 11, 2009. Judgment was rendered on
July 23, 2009. The trial judge did not order retroactive child support for the period
Statement of Facts
prior to the filing of Appellant’s Motion, but did increase the monthly support to
approximately double, i.e. to $1,736.40 between May and December 2007 and to
$1,614.19 as of January 2008 based on an income for Respondent of $290,669
in 2007 and $255,613 in 2008.
36.
Appellant had testified to the evolution of her illness and the attacks she had had
since 1989 until the trial. Nevertheless, at paragraphs 104 to 115 of the judgment,
the trial judge found that her condition had remained stable since 1989 (AR,
Vol. I, pp. 23-25). The facts did not support this conclusion as, entre autres, in
2000 Appellant began having more serious attacks which led to the need for daily
injections to help slow down the reoccurrence of the attacks. (AR, Vol. II, p. 7)
and this had been entered into the evidence. Even Respondent, when he wrote
to the tax department for clemency, had referred to the deterioration of her
health.
37.
The trial judge correctly found that Respondent’s financial situation was not
grounds to vary support, but since she found that Appellant could work, she
reduced the spousal support of $4,103.50 to $3,000 a month from July 23, 2009
until February 28, 2010 and further reduced it to $2,000 per month from March 1,
2010 until August 31, 2010. She did not order payment of any spousal support
after August 31, 2010. It was to be Appellant’s burden thereafter to advise the
Court with respect to her efforts to seek employment, the responses she
received, and how successful she was in doing so were she to wish to have
further spousal support (AR, Vol. I, pp. 25-26).
38.
The trial judge took the position at paragraphs 118 and 119 of her judgment that
the Court did not have to concern itself with the fact that Appellant could lose her
right to her long-term disability insurance payments were she to find employment
(AR, Vol. I, p. 25).
Statement of Facts
The Appeal Court judgment
39.
The Court of Appeal maintained the trial judge’s judgment with the exception that
the judges ordered that the spousal support remain at $3,000 a month until
August 31, 2010. The Court did not find that the trial judge had erred insomuch
as in certain circumstances the passage of time or a refusal to look for
employment could constitute a change of circumstances. The Court found that
the trial judge had left the door open to rectify any harm created by the
cancellation of spousal support by allowing Appellant to ask for support after
August 31, 2010 based on the situation at that time (AR, Vol. I, pp. 42-43).
----------
Questions in Issue
PART II – QUESTIONS IN ISSUE
Issue 1. Are there any circumstances when the Court may permit a de novo hearing of
a spouse’s right to support provided in an Agreement, when there has been no change
of circumstances nor any provision for a review?
Issue 2. May the Court cancel a spouse’s obligation to pay support to a disabled spouse
as a result of a lack of effort to seek employment outside the home when the payor
spouse had always acknowledged and confirmed her disability?
Issue 3. Should the Court consider that a spouse who receives a disability income has
fulfilled her obligation pursuant to articles 15.2(6)d) and 17(7)d) of the Divorce Act (infra,
pp. 44 and 47)?
Issue 4. If the Court determines that a spouse who is receiving support is capable of
earning income and refuses to look for employment, should the spousal support not
simply be reduced by any additional net income she is deemed to be able to earn rather
than be annulled in its entirety?
----------
Statement of Argument
PART III – STATEMENT OF ARGUMENT
Overview of the arguments
40.
If a spouse has agreed to pay spousal support without a term or a provision for a
review, without a material change of circumstances the Court may not vary
spousal support. The parties entered into a contract ratified by the Court at the
time of the divorce and it is binding for both parties unless there is a material
change of circumstances.
41.
In cases where the recipient spouse is expected to seek employment, the
agreement will provide a term or a right of review after a specified period. When
no term and no obligation to seek employment are specified, a recipient spouse
has the right to assume the support is owing until there is a material change of
circumstances. In the present case, when Respondent signed the Agreement, he
was aware that Appellant had multiple sclerosis and was unable to work. He
knew that Appellant had been receiving disability insurance for years. Appellant
argues that the Court should not and could not cancel his contractual obligation
to pay support for lack of effort to seek employment when Respondent had
always agreed that she could not work outside the home, and when the
Agreement did not include any obligation for her to seek employment.
42.
Appellant’s disability income fulfills her obligation to attempt to become as selfsufficient as much as is practicable and was seen as such by both parties when
Respondent undertook his obligation to pay support. He was an attorney of many
years of experience at the time he signed and no clause was included providing
that Appellant was expected to increase her income. Appellant is 45 years of age,
and her minimal work experience is well in the past (AR, vol. II, pp. 2, 4). The
quantum of the net disability insurance she receives is not that different from the
net amount she could earn were she able to work outside the home, and pay
Québec
Pension
Plan
and
Employment
Insurance
dues,
as
well
as
transportation, lunches, work clothes, etc.
43.
Based on an income of $165,000, the initial annual support of $44,256 had
already taken into consideration that she had a net income of $16,956. Were the
Court not to accept her arguments that she should not have to look for
employment in view of the Agreement and her disability, at the very least
Appellant’s spousal support should only have been reduced by the amount the
Court found that she could earn, the whole considering Respondent’s income of
$290,669 in 2007 and $255,613 in 2008.
44.
Appellant submits that in a situation where she had been declared incapable of
working for close to twenty years that a judge could not decide after four days of
hearing, based in large part, on what she saw (AR, Vol. I, pp. 24-25, paragraphs
113 to 115), that she could work and thus no longer have a right to support (AR,
Vol. I, pp. 25-26, paragraphs 121 to 123).
Issue 1. Are there any circumstances when the Court may permit a de novo
hearing of a spouse’s right to support provided in an Agreement, when there has
been no change of circumstances nor any provision for a review?
A-
Separation Agreements in Québec
45.
As elsewhere in Canada, in Québec many couples choose to sign separation
agreements setting out their rights and obligations. However, in almost every
case their separation agreements are incorporated into their Divorce judgment.
46.
The parties’ Agreement in the present matter was scrutinised in 2003 by a judge
pursuant to article 15.2 of the Divorce Act to ensure that its clauses reasonably
fulfilled the objectives of the Divorce Act. It was incorporated into their Divorce
judgment.
B-
Validity of signed agreements as per Miglin
47.
In Miglin v. Miglin, [2003] 1 S.C.R. 303 (A.B.A., Tab 11), the Court found that
fairly negotiated agreements that represent the intentions and expectations of the
parties and substantially comply with the objectives of the Divorce Act are to
receive considerable weight. Once signed, the parties are bound by these
agreements.
48.
Recipients of spousal support are almost always women and thus men almost
always the payor spouses. It is more often women who give their careers a
secondary role or do not work outside the home in order to care for children and
husband, while men generally work outside the home, often advancing their
careers and increasing their earning capacity. It is men who usually benefit from
the interpretation of Miglin, which holds spouses to their bargains if they ask to
reopen Agreements when they have renounced to spousal support.
49.
At the time of the signature of the Agreement, Appellant was receiving her
disability insurance while Respondent was an attorney earning, according to his
own admission, approximately $165,000 a year. Her right to spousal support
included elements of support based on compensation for her traditional role
during the marriage as well as elements of support based on needs and means.
Although she became ill during the first year of a fourteen-year marriage and was
unable to work, she nevertheless took care of the family, and also contributed her
disability income to the family. In 1991 and 1992, she attempted to take courses
at McGill University, but had to drop the classes because the effort proved to be
too much for her (AR, Vol. IV, pp. 203-212).At marriage breakdown, her condition
had continued to deteriorate. Her health did not allow her to seek employment
and her disability insurance did not permit her to reproduce the marital life style.
50.
Appellant had the right to rely on article 17(4.1) of the Divorce Act (infra, p. 50)
which provides that a material change of circumstances had to occur before any
variation of her rights could occur. Why would a spouse’s acceptance of a term
for support be binding for a woman pursuant to Miglin, but an undertaking to pay
support without a term not be considered binding for a payor spouse?
51.
While the situation has been evolving over the past years, i.e. more Canadian
women train for and remain on the job market during marriage, there are still
thousands of Canadian women who lived in marriages where they were never
expected to work and when they signed separation agreements providing for the
payment of spousal support, there was no question of returning to the job market.
These agreements may not be set aside because a judge could determine on a
Motion to Vary that the recipient spouse should have looked for work even
though there has been no change of circumstance.
C-
The difference between a request for a variation of support pursuant to article 17
of the Divorce Act and a review
52.
The Agreement signed by the parties does not provide for a term, nor a date of
review of the obligations undertaken in the Agreement. Moreover, the Agreement
specifically provided in its preamble that article 15.2(6)d) of the Divorce Act had
been taken into consideration and that it was meant to be a final agreement.
Respondent knew that Appellant was ill even before they had children.
53.
It was clear for all parties involved at the time of the signature of the Agreement
that Appellant would never have income other than her disability income. Thus,
unless a significant change of circumstances were to occur, the parties were
bound by their contract. While there is case law discussing whether a change of
circumstances has to be unforeseeable, there is no debate that at the very least a
change of circumstances is required to allow for a variation.
54.
A review is a mechanism which does not require either party to make proof of a
change in circumstances. However, in order for the Court to effect a review, an
agreement or judgment must clearly provide that a review will take place.
55.
When a review has been foreseen, it may be up to the spouse receiving support
to show that she has taken steps to complete her education or to look for a job.
The Court will review the parties’ situations in light of the conditions or steps
imposed by the Agreement or the judge who determined a review was
appropriate. No proof of change of circumstance is required to trigger a hearing
to modify or annul support.
56.
The Agreement does not provide that Appellant must attempt to become more
financially autonomous but rather notes that she is receiving a disability income.
Respondent, an attorney, took upon himself the obligation to pay support being
fully aware of Appellant’s medical situation. No term was provided and the
support was clearly a long-term obligation. Her entitlement was established and
could not be re-evaluated on a Motion to Vary. What the trial judge did in this
matter was to conduct a de novo hearing or a review, which she had no right to
do since the matter before her was a Motion to Vary pursuant to article 17(1)(a)
of the Divorce Act.
57.
In summary, based on the decisions of Willick v Willick, [1994] 3 S.C.R. 670
(A.B.A., Tab 15) and Leskun v. Leskun, [2006] 1 S.C.R. 920 (A.B.A., Tab 8),
when there is no change of circumstances nor a specific clause providing for a
review in a previous judgment or Agreement, the Court does not have the
jurisdiction to determine de novo if support should be paid.
58.
Although the trial judge had not found a change of circumstances to permit her to
vary and cancel Appellant’s support, the Court of Appeal ignored this error in law
because the judges considered the fact that Appellant had not looked for work
was a change in circumstance in itself. They referred to cases in Québec where
various judges had found that the passage of time and/or the lack of effort to find
employment was a change of circumstances permitting support to be annulled
(AR, Vol. I, p. 39, paragraphs 34 to 36).
59.
This is a very dangerous body of case law and deserves the attention of this
Court. Allowing a judge, when there has neither been a change of circumstances
nor has a right of review been provided, to decide that the passage of time or the
lack of looking for employment constitutes a material change of circumstances
undermines the reliability of separation agreements which Miglin was supposed
to bolster. Allowing a husband to argue that the passage of time or not seeking
employment is the equivalent of a change of circumstances leaves the door open
to discretion and arbitrariness.
60.
Such case law results in agreements being binding for women who give up
support, but not for men who undertake to pay support. A woman who negotiates
periodic support payments without a term and without any stated obligation to
attempt to return to employment, has a right to rely on her agreement. Many
women have lived in marriages where working outside the home was not
considered an option whether as a result of choices made by the couple and/or
disability. Neither they nor their husbands expect they will have to work outside
the home after marriage breakdown and their agreements do not provide this
obligation. If this is the couple’s choice and the basis of an undertaking to pay
support, the payor spouse should not be able to change his mind and to return to
Court a few years later arguing that the recipient spouse should have looked for
work.
61.
In the present matter, Appellant continued on with her life as a full-time parent
after separation, unaware of any requirement that she look for work. Nothing in
the Agreement provided for an obligation to seek employment. She had every
reason to believe that she could not work, as this was and remains her doctor’s
opinion. Her health situation is not changed because a judge decided differently.
62.
The cases referred to by the Appeal Court, T.(A.) v.J.(L.), EYB 2000-20420 (C.A.)
(A.B.A., Tab 13), Droit de la famille - 09408, 2009 QCCA 397(A.B.A., Tab 3) and
Droit de la famille - 978, J.E. 91-680, EYB 1991-58828 (C.A.) (A.B.A., Tab 2),
open the door to a de novo review in any circumstances when a particular judge
believes that the husband has been paying support “long enough”. This case law
allows almost total discretion to a judge and means that no one receiving spousal
support can approach the Court for increased child support without fearing that
her right to support could be annulled because of the judge’s view of her
situation. Essentially, it allows a judge to apply the "clean break" theory of
spousal support indirectly.
63.
Droit de la famille - 978, J.E. 91-680, EYB 1991-58828 (C.A.) (A.B.A., Tab 2),
was a case of a second marriage which lasted for 7 years and there were no
children. The wife was 48 years old, and she did not work during the marriage.
The judgment in divorce was rendered in 1977. The wife made a motion in 1990
to modify accessory measures which the trial judge dismissed. The agreement
from 1976 states that the wife could earn revenues without the spousal support
being affected solely ("pour ce seul motif") for this reason. During the 14 years
after the separation agreement, the wife did not look for work nor make any effort
to improve her skills. The trial judge interpreted the agreement from 1976 as
meaning that wife would reintegrate the work force and thus the spousal support
could be modified. The Court of Appeal shared this opinion.
64.
This is a highly debatable position as clearly providing for the right to work and
earn a revenue without it being grounds to reduce support should normally be
interpreted as exactly that and not the opposite. Obviously, the judge who heard
this matter thought that paying support for 14 years after a seven-year second
marriage without children was excessive, but entitlement should have been dealt
with in the original agreement by a term or by providing for a review and not by
the Court exercising discretion. In any event, in the present case, there was no
clause of any sort suggesting that Appellant should look for work.
65.
In Droit de la famille - 09408, 2009 QCCA 397 (A.B.A., Tab 3), the Court of
Appeal was asked to intervene in a matter being decided pursuant to article 15.2
of the Divorce Act. In this case, the wife was an engineer and subsequently
decided to take a college course in drawing. From 2004 to 2007, the wife had
made no effort to become financially independent. She did not have any health
issues or other handicap preventing her from seeking a job. This was a factbased case in which the Court of Appeal imposed a term on a spouse who had
voluntarily decided to pursue a reduced career path. The case does not apply to
Appellant, as there was no contractual obligation on the part of the husband to
pay support and the hearing was pursuant to article 15.2 and not article 17(4.1) of
the Divorce Act.
66.
In T.(A.) v. J.(L.)., EYB 2000-20402 (C.A.) (A.B.A., Tab 13), the Court of Appeal
states that the trial judge was in a better position to appreciate the global
circumstances and context of Respondent’s situation. Although the trial judge did
come to the conclusion that the efforts were not sufficient or to the Court’s
satisfaction, he did not deem appropriate to fix a term. The Court of Appeal says
that the trial judge’s statement make it seem that his attitude would not have
been the same if he was confronted with a similar situation two years later. There
are no details whatsoever about the particular situation of the parties and no
indication that the wife in that case was unable to work due to an illness. There is
also nothing to suggest that the case was based on a contractual obligation to
pay spousal support, unlike Appellant’s situation.
67.
The Appeal Court used the above three cases to highlight that the passage of
time or the refusal to look for a job constituted a material change of
circumstances justifying a de novo review of the right to spousal support. We
respectfully submit that the judges were wrong to base themselves on these
cases as two of the three did not involve contractual support and the facts in all
the cases were very different.
68.
The possibility that a judge can find that passage of time or not looking for work
can constitute a change of circumstances encourages litigation. If a payor spouse
thinks he has a chance to have his obligation to pay support terminated
depending on a particular judge’s point of view without having to prove a material
change of circumstances, why not try his chance to argue that he has been
paying long enough or that his wife should have looked for work?
69.
Arbitrariness and lack of clear parameters are the scourge of family law. Just as
one judge may be convinced that a wife who fulfilled the traditional role of a
homemaker has very significant long term compensatory rights to support,
another judge may feel differently. There are judges who believe that support is
an unfair burden to the payor spouse and should only be for a transition period.
Allowing the Court to cut support on a request for a variation based only on the
fact that a recipient spouse is not looking for work or based on the passage of
time means that no recipient spouse can ever rely on an agreement. It allows the
clean break theory to return via the back door. Must every spouse receiving
spousal support in Canada look for work every day to fulfill her obligation to seek
employment? This means that every spouse who is receiving support pursuant to
a separation agreement without a term will always live in fear of being brought
back to Court on a variation demand even though there has been no real change
of circumstances.
70.
There are many spousal support agreements which have been in effect for a long
time, and based on today’s criteria may seem unfair to the payor spouse. But an
agreement is an agreement and to say that the passage of time can be cause to
cancel support is not a fair and impartial application of the law. When women are
not doing well because of a bad agreement, the Court does not refuse to apply its
terms, but rather maintains the agreement if the criteria of Miglin have been met.
In reality, the interpretation of the passage of time or the non-seeking of
employment as a change of circumstances gives permission to a payor spouse to
withdraw from an agreement.
71.
Over the years, there have been spousal support agreements that have been
less than fair to one or the other member of a couple whether because of
quantum (high or low) or the length of time (short or long) the support was to be
paid. One of the main reasons that the Spousal Support Advisory Guidelines
(hereinafter SSAG) were developed in Canada was to provide an objective scale,
one which could be perceived as fair because objective, for both the length of
time support is to be paid and quantum. The SSAG have attempted to deal with
the matter of how long support will be paid in that in marriages of less than twenty
years they have provided for a maximum period of payment of between half to
one year per year of marriage, without reducing a spouse’s obligation to be as
financially independent as is practicable or the right to request a variation as a
result of a change of circumstances. The SSAG have also developed guidelines
for situations where child support is being paid. The SSAG were published in July
2008 by the Department of Justice Canada and prepared by Professors Carol
Rogerson and Rollie Thompson in July 2008(http://www.justice.gc.ca/eng/pi/fcyfea/spo-epo/g-ld/spag/pdf/SSAG_eng.pdf), and in March 2010, a New and
Improved
User’s
Guide
to
the
Final
Version
was
also
published
(http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/topic-theme/ug_a1-gu_a1
/PDF/ug_a1-gu_a1.pdf).
72.
The time to evaluate the length of time support is when entitlement is determined.
If changes occur in the future, article 17(1)a) exists, just as the right to review can
be foreseen. Thus it is when entitlement is determined that the parameters of the
obligation to become financially autonomous should be weighed and taken into
consideration. This is either done at a hearing pursuant to article 15.2 of the
Divorce Act or upon the signing of a separation agreement.
73.
One of the advantages of the SSAG is that they require lawyers and judges to
analyse the source of parties’ rights to support before deciding on entitlement and
quantum. For example, a judge might decide that the higher range of support is
being chosen because there is a compensatory aspect to the right to support, or
that support will be paid for a maximum of five years because in a ten-year
marriage, the recipient spouse never gave up her employment and there is no
compensatory component to her rights. Professors Carol Rogerson and Rollie
Thompson have written that one of the results of the SSAG has been more
carefully reasoned spousal support judgments explaining the basis and limits of
rights and obligations.
Issue 2. May the Court cancel a spouse’s obligation to pay support to a disabled
spouse as a result of a lack of effort to seek employment outside the home when
she is disabled and in particular when the payor spouse had always
acknowledged and confirmed her disability?
74.
This case raises the issue of what type of effort to seek employment is expected
of a person who has been declared disabled by her own doctor and by her
employer’s insurance company. It was in this context that the Agreement for
support without a term was signed, i.e. there was no expectation of Appellant’s
return to the work force.
75.
This is not a case where during a short-term marriage a party became ill. In the
present case, Appellant was diagnosed with multiple sclerosis just one year after
the marriage and the parties decided to have children after a five-year waiting
period. Respondent knowingly agreed to have children and left them in
Appellant’s custody when they divorced after fourteen years of marriage. She has
since had close to nine additional years of caring for the parties’ children. At the
time Respondent asked for a variation and cancellation of his obligation to pay
support in 2007, the Agreement had been in force for only four years.
76.
Appellant testified that Respondent represented her before the Régie des Rentes
and he knew that her condition was severe and permanent (AR, Vol. II, p. 8). In
its decision dated March 22, 2002, the Administrative Tribunal of Québec states
the following at paragraph 8 with respect to the representations of Respondent,
who was acting as Appellant’s attorney (Exhibit D-52, AR, Vol. IV, p. 151, at
p. 200):
Le procureur de la requérante soutient que sa cliente ne peut
avoir de disponibilité au travail cinq jours par semaine, puisqu’elle
devrait s’absenter régulièrement à cause de la fatigue. Il
considère que sa cliente ne pourrait pas maintenir un emploi
véritablement rémunérateur.
77.
The parties signed their Agreement after negotiations with the assistance of their
respective attorneys. Respondent, himself a litigation lawyer, was represented by
an experienced family law attorney. Appellant entered into the contract in good
faith. Her doctor and her insurance company considered her permanently
disabled, and Respondent himself had always maintained this to be the case.
She was contributing her disability income to her support. She had no reason to
believe that she had any obligation to look for employment.
78.
The likelihood of Appellant finding employment when burdened by multiple
sclerosis, very few skills, 14 years off the job market, no high school certificate,
and the custody of 2 children was next to nil. Respondent knew this and there
was no question that Appellant should have to look for employment outside the
home when Respondent contracted to pay her spousal support.
79.
In the present case, nothing in Appellant’s situation had changed since the
signature of the Agreement. She still suffered from multiple sclerosis and she was
still receiving the same amount of disability insurance from her ex-employer. She
continued to be treated by Dr. Aubé, who testified that she was unable to work.
This testimony was corroborated by Dr. Roy’s report, who also stated that she
could not work and was not a candidate for rehabilitation.
80.
The trial judge should never have accepted to consider proof on whether or not
Appellant could work as there was no change of circumstances. She was
disabled and had a right to the support Respondent had agreed to pay.
81.
Even Respondent’s expert, Dr. Duquette, found she could only work 20-25 hours
a week (AR, Vol. III, p. 44) although his testimony appears to be very much
geared to opportunities available to employees who, when diagnosed with M.S.,
were able to negotiate with their existing employers and not someone like the
Appellant who, looking for employment would have to tell an employer that she
suffered from multiple sclerosis (AR, Vol. III, pp. 15-16, 38-39):
R-
Cependant, ce que je peux vous dire, c’est que dans notre
clinique, … on aurait très certainement tenté un retour au
travail. … Puis on le fait régulièrement et on fait des
accommodements, hein.
(…) On dit… quand la personne ne peut pas travailler, on
décrète un arrêt de travail pour des périodes de temps
variables, en fonction de la situation, mais lorsque la
situation s’améliore, on tente un retour au travail.
Alors, il y a des accommodements sur la lourdeur de la
tâche, par exemple, des accommodements physiques. …
(…) On tente des retours au travail progressifs. Je me
rappelle d’un patient, lui, l’employeur lui permettait de ne
pas travailler pendant les deux (2) mois de l’été où c’était
le plus chaud…. On écrit des lettres aux employeurs. Au
besoin, on appelle l’employeur pour faciliter la chose, hein.
82.
Dr. Duquette did concede that the situation with a patient with MS can change
from one day to another. His opinion of Appellant was based on a single meeting
which lasted for one hour and fifteen minutes (AR, Vol. III, p. 30).
83.
Having chosen to look at Appellant’s capacity to work, we submit that the trial
judge’s conclusions were wrong. She gave far too little weight to Appellant’s
testimony and to Dr. Aubé’s testimony. She gave far too much weight to the
nanny’s testimony, who was in the difficult position of being Respondent’s
employee. The nanny’s testimony, when she states that Appellant did not talk
about her medication or other medical issues, except for her fatigue, indicated
that Appellant did not discuss her medical situation with her and thus she was not
in position to be a helpful witness. (AR, Vol. II, p. 51).
84.
At trial, Appellant was asked by Respondent’s attorney if she would try to seek
employment if she did not have long-term disability. Appellant answered correctly
that one did not have anything to do with the other (AR, Vol. II, p. 28)
85.
Q:
And that… so do I understand that if you did not have longterm disability, you would try to seek employment?
A:
It would… I don’t think not having long-term disability would
cure my condition, no, I wouldn’t be able to work even if I
weren’t getting insurance money.
Q:
So I don’t understand what does long-term disability have
to do with seeking employment.
A:
I wasn’t making the relation, I’m not working because I’m
not able to, and I was lucky enough at the time of getting
sick that I had insurance.
The trial judge had at her disposal the opinion of three experts. Dr. Aubé,
Appellant’s treating doctor, who knew her since she first became ill, testified that
she could not work. Dr. Roy, the insurance company’s doctor, also stated that
she could not work. Dr. Duquette, Respondent’s expert, stated that in his opinion
Appellant could work on a part-time basis, between 20 and 25 hours per week.
86.
The Court should have taken into account the opinion of Appellant’s treating
doctor as well as the insurance company’s doctor who said that she was not even
a candidate for rehabilitation. The Court could not substitute its own opinion to
that of Appellant’s treating doctor. Many symptoms of multiple sclerosis are not
visible, such as deep fatigue and numbness, and the fact that Appellant was able
to attend trial for four days and did not ask for breaks, etc., cannot be interpreted
as her being able to work full time. The Judge did not ask Appellant how she was
feeling at the end of the four-day period.
87.
In addition, during her testimony, Appellant sometimes asked to sit, while on
other occasions it was the trial judge who invited her to testify while sitting down.
On the first day of trial, while Appellant was testifying, the trial judge interrupted
her to say: "You can sit down for a little while…" without Appellant having asked
to sit or to pause (AR, Vol. II, p. 5). Appellant was fully aware that her right to
spousal support was being decided during those four days of trial, and as such, it
required all her efforts to be alert during the hearing. It does not mean that she
was not exhausted at the end of each day, and it does not mean that she could
work, even on a part-time basis, simply because she was able to participate
intelligently in a trial for four days.
88.
With respect to her symptoms, Appellant testified that she is not the type of
person who talks about her illness, and that a lot of people do not know she has
MS (AR, Vol. III, pp. 54-55):
89.
Q:
In regards to your symptoms.
A:
If anything, it was the opposite. I’m the type of person… I
don’t like to talk about my illness. That’s why a lot of
people don’t know. There’s probably about, I don’t know,
ten (10) or twelve (12) people, my close friends and
family around me, that know. I don’t want to be labelled, I
never did, and Louis knows that. And every day that I can
get through and do what I need to do and take care of the
kids is an accomplishment for me.
Appellant also testified that she sleeps more now than when she had the nanny
to help with the household chores (AR, Vol. III, p. 56). This testimony was not
contradicted and should have been taken in consideration by the trial judge as to
Appellant’s situation which had deteriorated since the signing of the Agreement.
90.
The Supreme Court in Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (A.B.A., Tab 1),
had to decide if a sick or disabled spouse was entitled to spousal support at the
end of the marriage, over and above what is required to compensate the spouse
for the loss incurred as a result of the marriage and its breakdown. The Court
states at paragraph 42:
Similarly, the fourth objective of s. 15.2 (6) of the Divorce Act –
to promote self-sufficiency – may or may not be tied to
compensation for disadvantages caused by the marriage or its
breakup. A spouse’s lack of self-sufficiency may be related to
foregoing career and educational opportunities because of the
marriage. But it may also arise from completely different
sources, like the disappearance of the kind of work the spouse
was trained to do (a career shift having nothing to do with the
marriage or its breakdown) or, as in this case, ill-health.
91.
The Court continues at paragraphs 44 and 48:
44.
(…) Although Moge was primarily concerned with a claim
for compensatory support, L’Heureux-Dubé J. noted that in
other cases, like those of sick or disabled spouses, a support
obligation might well lie even in the absence of a compensatory
underpinning. She pointed out that while some of the provisions
of the Divorce Act are compensatory in character, "[they] may
not be characterized as exclusively compensatory" (p.865).
48.
To permit the award of support to a spouse disabled by
illness is but to acknowledge the goal of equitably dealing with
the economic consequences of marital breakdown that this
Court in Moge, supra, recognized as lying at the heart of the
Divorce Act. It also may well accord, in my belief, with society’s
sense of what is just. (…) Divorce ends the marriage. Yet in
some circumstances the law may require that a healthy party
continue to support a disabled party, absent contractual or
compensatory entitlement. Justice and considerations of
fairness may demand no less.
92.
In the case of L.-G.(S.) v. R.(R.), 2002 CanLii 4986 (A.B.A., Tab 9), Justice
William Fraiberg was faced with a similar situation to that of Appellant. The wife
suffered from myasthenia gravis, a debilitating disease of the nervous system
which is similar in some aspects to multiple sclerosis. The wife suffered from this
disease from her early childhood and her husband was well aware of the disease
and its effects on his wife, early in the marriage. He knew that his wife was
unable to work and would be financially dependent on him, and despite that, he
remained married to her. At trial the issue of spousal support arose and Justice
Fraiberg stated at paragraphs 148 to 151, that remaining in the marriage was an
implicit commitment to continue to support after the breakdown of marriage:
[148] The payer spouse is not given relief for having diligently
performed the support obligation during a long marriage that
ends in divorce but the additional burden of performing it for
longer still.
[149] Mr. L...-G... was aware very early in the marriage, if not
before, that Ms. R... had myasthenia gravis. If the payer is
aware on marriage that the recipient suffers from an illness that
can make him or her financially dependent, the fact of marrying
and providing for the recipient may sometimes constitute an
implicit agreement to do so indefinitely or for a long time after
marriage ends.
[150] While not invariably the case, the obligation so far as
founded upon the duration of its performance by the debtor, can
be understood as a sign of a commitment to continue to take
care of the dependent spouse for a time that is commensurately
long.
[151] The alternative for the payer is of course to reduce the
commitment by ending the marriage earlier. Remaining in it,
however, whether for selfish or altruistic motives, must be
understood as an implicit promise of support, if not for life, then
for a reasonable time after marriage ends, if the payer's means
permit, since doing otherwise would be inherently unfair to the
dependent recipient of support, as well as at odds with the
undertaking of marriage as a significant partnership to begin
with.
93.
In F.(J.) v. D.(H.), REJB 2001-24920 (A.B.A., Tab 5), Justice Maurice Laramée
was faced with a similar situation. In this case, the parties met in 1987 and in
1988, they learned that the wife was suffering from multiple sclerosis. She
became unable to work and benefited from disability insurance. In 1999, the
husband instituted procedures and Justice Laramée in his judgment, at
paragraph 56, concluded that even though the husband had every right to
withdraw himself from the marriage since it became too difficult for him, he could
not do so without compensating for the legitimate losses due to his wife’s illness.
He continued by saying that the parties established during their life together a
“Modus Vivendi” based on the idea of mutual support. He further wrote:
[58] Même si le mariage en soi ne donne pas
automatiquement droit aux aliments, dans le cas sous étude, la
Cour est d'avis que l'obligation alimentaire découle entre autres
de la relation maritale elle-même, d'autant plus que la maladie
était connue des parties avant le mariage. C'est que la
dépendance économique de Madame est liée à sa santé
déficiente et c'était à prévoir. Ce n'est pas à dire que si la
maladie s'était manifestée après le mariage qu'une demande
alimentaire ne serait pas justifiée; chaque cas doit être jugé à
son mérite.
94.
These cases clearly demonstrate that a spouse suffering from an illness and the
financial dependency as a direct consequence of the illness, are legitimate
reasons for support. Appellant was married for fourteen years before the parties
separated and has cared for the children now for an additional nine years. Her
disability income is as self-sufficient as she will ever be. Her net disability
payments probably provide her with more or less what she could earn if she was
out on the job market even were she able to work. She cared for the children as a
traditional home maker prior to the parties’ separation and the Respondent both
benefited from her contribution of time at that time and since, as she is the one
who looks after the children all week. The spousal support which was agreed to
in 2003 was not unreasonable as Respondent was declaring an annual income of
approximately $165,000 and the alimony which was agreed to was $44,256 per
annum, or $3,688 per month. It is even more reasonable today when one
considers Respondent’s increased income.
Issue 3. A spouse who receives a disability income has fulfilled her obligation
pursuant to articles 15.2(6)d) and 17(7)d) of the Divorce Act
95.
Articles 15.2(6)d) 17(7)d) of the Divorce Act (infra, pp. 49 and 51) clearly state
that one of the objectives to be taken into account with respect to spousal support
is "in so far as practicable, promote the economic self-sufficiency of each former
spouse within a reasonable period of time." In this case, Appellant could not
expect to be economically self-sufficient in light of her illness.
96.
In Moge v. Moge, [1992] 2 S.C.R. 813 (A.B.A., Tab 12), the Court states:
All four of the objectives defined in the Act must be taken into
account when spousal support is claimed or an order for spousal
support is sought to be varied. No single objective is paramount.
The fact that one of the objectives, such as economic selfsufficiency, has been attained does not necessarily dispose of the
matter. (p. 852, pp. 22 of 37)
(…)
Although the promotion of self-sufficiency remains relevant under
this view of spousal support, it does not deserve unwarranted preeminence. After divorce, spouses would still have an obligation to
contribute to their own support in a manner commensurate with
their abilities. (…) In such cases, compensatory spousal support
would require long-term support or an alternative settlement
which provides an equivalent degree of assistance in light of all
the objectives of the Act. (pp. 860-861, pp. 26-27 of 37)
97.
Leskun v. Leskun, [2006] 1 S.C.R. 920 (A.B.A., Tab 8) provided at paragraph 27
that “failure to achieve self-sufficiency is not breach of “a duty” and is simply one
factor among others to be taken into account.”
98.
The definition of self-sufficiency varies from case to case as it is a relative
concept. It is generally defined in the context of the marital standard of living
unless the marriage was a very short one. The Court cannot expect that the
obligation of a 45-year old woman with multiple sclerosis to attempt to be self-
sufficient be the same as that of a 32-year old healthy woman. In this case,
Appellant had been found to be disabled both by her treating doctor and by her
employer’s insurance doctor. Appellant had a history of illness for the greater part
of the marriage. Neither the Court of first instance nor the Appeal Court took into
account the specificities of the parties, namely that Appellant had stayed home
during the marriage, did not have the educational skills to earn a substantial
income, and she would lose her disability income if she were to be employed and
earn any significant income (AR, Vol. I, pp. 157-169) causing enormous problems
for her in the future if she lost any employment she could find, since her disease
is a degenerative one.
99.
The time to determine what a disabled spouse’s obligation to work should be is
when a separation agreement is signed. The obligation to attempt to achieve selfsufficiency as much as is practicable is to be taken into consideration when
entitlement is decided. If the parties believe that the recipient spouse should find
work, an agreement should provide that the spouse will make her best efforts to
become self-sufficient. If there is no undertaking to this effect, not looking for
work should not be considered a material change of circumstances.
100. If no term has been provided and an agreement does not provide an obligation to
attempt to become self-sufficient, a disabled spouse has a right to take for
granted that the Court may not annul her support because of the passage of time
or not having looked for work. She has a right to consider that her support is a
long-term right unless a material change of circumstances occurs and even then
the question remains as to whether a change of circumstances must have been
unforeseeable.
101. As long as Appellant is deemed unable to work by the insurance company, she
will continue to receive insurance in the amount of $16,956 net per year. If
Appellant could find work, she would have to earn a significantly higher gross
income in order to have the same net income.
102. Should Appellant start working (assuming she could) and subsequently lose her
disability insurance, she will have lost this income forever, as no insurer will ever
insure her again. This had to be considered by the trial judge. Appellant could
never attain self-sufficiency and is lucky to receive her disability insurance
payments.
103. The Appeal Court makes reference at paragraph 28 of the judgment (AR, Vol. I,
p. 37) that Respondent testified to the effect that he had an oral agreement with
Appellant at the time of the signature of the Agreement by which she had
promised him that the issue of spousal support would be readdressed at a later
date. The Appeal Court states that Appellant denied this so-called oral agreement
two years prior during an examination on affidavit as if somehow only denying
this agreement once was not adequate.
104. It is not credible that a seasoned lawyer such as Respondent would accept a
verbal assurance from Appellant that she would go back to work and yet include
nothing in the Agreement. No credibility can be given to Respondent’s testimony.
This testimony contradicts the Agreement and as such should not have been
retained in the evidence.
105. In a judgment of this Court, Hawrish v. Bank of Montreal, [1969] S.C.R. 515
(A.B.A., Tab 7), there was an issue of an oral agreement contemporaneous to a
written agreement. Proof of such an agreement is not permitted if it contradicts a
written contract.
106. No weight should have been given to Respondent’s testimony in this regard, he
who advised the Court that he had over all the years of the marriage embellished
the Appellant’s situation in order to benefit from her insurance. He would have
misrepresented the truth for years, but now he should be believed? Appellant not
being able to work during the marriage was in Respondent’s self-interest, just as
it is in his self-interest now to say the contrary when he wants to relieve himself of
his obligation to pay support.
Issue 4. If the Court determines that a spouse who is receiving support is capable
of earning income and refuses to look for employment, the spousal support
should be reduced by any additional net income she is deemed to be able to earn
rather than be annulled.
107. In the present case, Appellant was entitled to compensatory support for the years
she devoted to Respondent and the children during the marriage as well as for
the years after the separation where she remained the primary care giver of the
children, allowing him to concentrate fully on the advancement of his career. She
also had a right to spousal support to allow her and the children a reasonable
lifestyle in the context of the marital lifestyle (see Moge v. Moge, [1992] 3 S.C.R.
813 at page 870, at page 30 of 37, A.B.A., Tab 12). The trial judge could not
simply cancel Respondent’s obligation without analysing the source of
Appellant’s right.
108. The cancellation of spousal support will result in dramatic consequences not only
to Appellant but also for the children. She will not be able to remain in her home
and will have to sell it. She will not have the means to continue to provide for
food, lodging and all the other day-to-day expenses of their family unit. She has
received no spousal support since August 31, 2010.
109. When the Court came to the conclusion that Appellant was capable of earning an
income, the Court should have evaluated what her earning capacity would be and
impute an income. After engaging in this exercise the trial judge would have
realised that since her total income of disability and spousal support is
approximately $70,000 a year she could never earn enough to maintain her
standard of living without top-up support from Respondent.
110. The Court should have also considered that because Respondent’s income had
increased from $165,000 to $290,669 in 2007 and $255,613 in 2008 Appellant
could have requested an increase of spousal support which she did not do. Thus
even were she to somehow be able to earn a small amount of income without
having her disability payments revoked, this would not provide any significant
amount of income and her spousal support should not have been reduced.
111. Based on the basic principles of support, Appellant has a right to continue to
receive ongoing spousal support from Respondent. In the matter of L.S. v. A.C.,
2006 QCCA 888, [2006] R.D.F. 475 (C.A.) (A.B.A., Tab 10), the Court imputed
additional income to the wife and decided that from all sources she was capable
of generating an annual income of approximately $75,000. Nevertheless as a
result of her husband’s income and the marital lifestyle, the Appeal Court still
considered that she was entitled to top-up support of $5,000 a month to
approximately $135,000 a year in addition to receiving $35,272.89 for the
children, the whole as a result of compensatory principles and needs and means.
112. In V.(L.) v. M.(J.), REJB 1999-13090 (S.C.) (A.B.A., Tab 14), on the issue of selfsufficiency and the capacity of earning an income for a healthy 48-year old wife
who had been receiving spousal support, the Court states as follows:
63. Cela dit, il faut être réaliste. Même si madame faisait plus
d’efforts qu’elle n’en fait actuellement, elle ne trouverait
certainement pas le Pérou. Elle est limitée dans ses choix et dans
les possibilités qui s’ouvrent à elle. Il n’existe pas de perspectives
qu’elle puisse trouver un emploi très rémunérateur, déclassée
qu’elle est du monde du travail, sans expérience et sans grande
compétence… Madame ne serait pas beaucoup plus "autonome"
qu’elle ne l’est actuellement.
(…)
72. Que madame ait ou non un emploi actuellement ne
libérerait pas davantage monsieur de ses obligations envers elle
dans les circonstances du présent cas. Cette question peut jouer
sur le quantum de la pension alimentaire et justifier que celle-ci
soit moins élevée en fonction des revenus (réels ou potentiels) de
madame. Mais elle n’est pas décisive pour faire disparaître
l’obligation alimentaire ou au contraire la maintenir.
(…)
89. Le tribunal est d’avis ici que l’obligation alimentaire de
monsieur envers madame est loin d’être terminée. Non
seulement celle-ci n’est pas autonome, mais elle ne sera pas en
mesure de l’être par ses seules ressources. Elle restera
vraisemblablement à jamais marquée et désavantagée par les
conséquences du mariage, de la rupture et du soin des enfants.
(…)
99. On l’a dit précédemment, le tribunal doit tenir compte que
madame est capable de combler une partie de ses besoins par
son travail, ce qu’elle est en mesure de faire … Le tribunal retient
que ses capacités de gains sont tout de même limitées et
devraient se situer entre 10 000 et 15 000 $ par année. C’est un
montant de 12 000 $ qui sera retenu.
100. Cela laisse un manque à combler de 38 000 $ par année
(incluant les impôts).
101. Le tribunal est d’avis que monsieur a la capacité financière
de payer cette somme, ses revenus étant au minimum de
120 000 $ par année et dans les faits supérieurs à cela. Cette
conclusion vaut en tenant compte qu’il paie encore pour
certains des enfants.
113. It was clearly stated in the Agreement that the income taken in consideration for
Appellant was her disability income of $16,956. Respondent accepted to pay
spousal support taking this income into account. Appellant accepted the quantum
of spousal support based on the income she was receiving. They established the
appropriate standard of living for Appellant at the sum of $16,956 and $44,256 in
2003, totalling $61,212 based on an income of $165,000. At trial Respondent’s
income had increased from $165,000 to $290,669 in 2007 and $255,613 in 2008.
Other than having his child support increased by approximately $744 a month,
Respondent was able to keep all the increased amount for his personal benefit.
114. In Droit de la famille - 10829, 2010 QCCA 713 (A.B.A., Tab 4), in which an exwife was cohabiting with a new partner, the Court of Appeal underlines the
importance of the compensatory nature of support. Mr. Justice Nicholas Kasirer,
writing for the Court states:
[28] (…) Dans une situation comme celle de Mme G…, où les
désavantages et avantages du mariage sont importants, l’objectif
compensatoire devra être plus difficile à déloger par des
considérations visées à l’article 15.2(6)d) de la Loi – comme cette
nouvelle union – qui sont plus éphémères dans leurs effets.
(…)
[31] (…) Dans un mariage à long terme avec enfants, le
fondement compensatoire du devoir alimentaire que la Loi
impose à l’époux débiteur envers son vis-à-vis est fortement
enraciné. La durée de la contribution à l’entreprise économique
commune par la créancière qui travaille au foyer, l’étendue des
inconvénients économiques directs et indirects qui en résultent,
et l’ampleur des avantages qu’en retire le débiteur, prises
ensembles, créent des expectatives légitimes de soutien
alimentaire que la nouvelle union ne peut que difficilement
ébranler.
115. Appellant produced her Statement of income and expenditures and balance
sheet at the time of her initial motion in 2007 (AR, Vol. I, pp. 69-74) as well in
2009 (Exhibit P-35, AR, Vol. I, pp. 113-121). The needs for the three people in
her household totalled $7,342.74 net per month (AR, Vol. III, p. 115). Appellant
could never meet those needs, even if she were to work full-time, which even
Dr. Duquette did not suggest she could do. As a result of the judgment her total
household income for herself and the children will be $1,413 a month disability
income and $1,625.48 child support, for a total of $3,038.48 a month. There is no
reason she should be left in this position while respondent is left with more than
$200,000 a year for himself alone.
----------
Orders sought
PART IV – SUBMISSION CONCERNING COSTS
116. The Appellant respectfully requests costs of this appeal and the courts below.
---------PART V -– ORDERS SOUGHT
117. The Appellant, L.M.P., prays this Court to:
A.
Allow the appeal;
B.
Set aside and dismiss the order of the Court of Appeal dated April 21, 2010 and
of the Superior Court of Québec dated July 23, 2009, with respect to the
reduction and cancellation of Appellant’s spousal support;
Montréal, February 3, 2011
________________________________
Ms. Miriam Grassby
Grassby & Associés
Counsel for the Appellant
Alphabetical Table of Authorities
PART VI – ALPHABETICAL TABLE OF AUTHORITIES
Jurisprudence
Paragraph(s)
Bracklow v. Bracklow, [1999] 1 S.C.R. 420
.......................................9,90
Droit de la famille - 978, J.E. 91-680, EYB 199158828 (C.A.)
..................................6,62,63
Droit de la famille - 09408, 2009 QCCA 397
..................................6,62,65
Droit de la famille - 10829, 2010 QCCA 713
........................................114
F.(J.) v. D.(H.), REJB 2001-24920
..........................................93
G.(L.) v. B.(G.) [1995] 3 S.C.R. 370
..........................................10
Hawrish v. Bank of Montreal, [1969] S.C.R. 515
........................................105
Leskun v. Leskun, 2006 SCC 25
..................................8,57,97
L.-G.(S.) v. R.(.R.), 2002 CanLII 4986 (QC C.S.),
2002 R.J.Q. 2454
..........................................92
L.S. c. A.C., 2006 QCCA 888, [2006] R.D.F. 475
........................................111
Miglin v. Miglin, [2003] 1 S.C.R. 303
......................47,48,50,59,70
Moge v. Moge, [1992] 3 S.C.R. 813
................................9,96,107
T.(A.) v. J.(L.), EYB 2000-20402 (C.A.)
..................................6,62,66
V.(L.) v. M.(J.), REJB 1999-13090 (S.C.)
........................................112
Willick v. Willick , [1994] 3 S.C.R. 670
..................................7,10,57
Doctrine
Michel TÉTRAULT, Droit de la famille, 3rd edition,
Montreal, Editions Yvon Blais, 2005
............................................6
PART VII
LEGISLATION
- 42 Article 294.1 of the Code of Civil Procedure, R.S.Q. c. C-25
Article 294.1 Code de Procédure Civile, L.R.Q. c. C-25
294.1. Le tribunal peut accepter à titre de témoignage une
déclaration écrite, pourvu que cette déclaration ait été communiquée
et produite au dossier conformément aux règles sur la communication
et la production des pièces prévues au présent titre.
Une partie peut exiger que la partie qui a communiqué la déclaration
assigne le témoin à l'audience, mais le tribunal peut la condamner à
des dépens dont il fixe le montant, lorsqu'il estime que la production
du témoignage écrit eût été suffisante.
1968, c. 84, a. 2; 1975, c. 83, a. 21; 1977, c. 73, a. 12; 1979, c. 45,
a. 159; 1984, c. 26, a. 12; 1992, c. 57, a. 255; 1994, c. 28, a. 17;
1999, c. 46, a. 6; 2000, c. 12, a. 315; 2002, c. 7, a. 72.
Code of civil Procedure, R.S.Q. c. C-25
294.1. The court may accept a written statement as testimony,
provided the statement is communicated and filed in the record in
accordance with the rules contained in this Title concerning the
communication and filing of exhibits.
A party may demand that the party having communicated the
statement summon the witness to the hearing, but costs in the
amount determined by the court may be awarded against that party if,
in the opinion of the court, the production of the written statement
would have been sufficient.
1968, c. 84, s. 2; 1975, c. 83, s. 21; 1977, c. 73, s. 12; 1979, c. 45,
s. 159; 1984, c. 26, s. 12; 1992, c. 57, s. 255; 1994, c. 28, s. 17;
1999, c. 46, s. 6; 2000, c. 12, s. 315; 2002, c. 7, s. 72.
Loi sur le divorce, L.R.C. 1985, c. 3 (2e Suppl)
MESURES ACCESSOIRES
DEFINITION
Définition de « époux »
15. Aux articles 15.1 à 16, « époux » sentend au sens du paragraphe 2(1) et, en outre,
dun ex-époux.
- 43 Articles 15 and 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp)
L.R. (1985), ch. 3 (2e suppl.), art. 15; 1997, ch. 1, art. 2.
ORDONNANCES ALIMENTAIRES AU PROFIT DUN ENFANT
Ordonnance alimentaire au profit dun enfant
15.1 (1) Sur demande des époux ou de lun deux, le tribunal compétent peut rendre une
ordonnance enjoignant à un époux de verser une prestation pour les aliments des enfants à
charge ou de lun deux.
Ordonnance provisoire
(2) Sur demande des époux ou de lun deux, le tribunal peut rendre une ordonnance
provisoire enjoignant à un époux de verser, dans lattente dune décision sur la demande visée
au paragraphe (1), une prestation pour les aliments des enfants à charge ou de lun deux.
Application des lignes directrices applicables
(3) Le tribunal qui rend une ordonnance ou une ordonnance provisoire la rend
conformément aux lignes directrices applicables.
Modalités
(4) La durée de validité de lordonnance ou de lordonnance provisoire rendue par le
tribunal au titre du présent article peut être déterminée ou indéterminée ou dépendre dun
événement précis; elle peut être assujettie aux modalités ou aux restrictions que le tribunal
estime justes et appropriées.
Ententes, ordonnances, jugements, etc.
(5) Par dérogation au paragraphe (3), le tribunal peut fixer un montant différent de celui
qui serait déterminé conformément aux lignes directrices applicables sil est convaincu, à la
fois :
a) que des dispositions spéciales dun jugement, dune ordonnance ou dune entente écrite
relatif aux obligations financières des époux ou au partage ou au transfert de leurs biens
accordent directement ou indirectement un avantage à un enfant pour qui les aliments sont
demandés, ou que des dispositions spéciales ont été prises pour lui accorder autrement un
avantage;
b) que le montant déterminé conformément aux lignes directrices applicables serait
inéquitable eu égard à ces dispositions.
Motifs
(6) Sil fixe, au titre du paragraphe (5), un montant qui est différent de celui qui serait
déterminé conformément aux lignes directrices applicables, le tribunal enregistre les motifs de
sa décision.
Consentement des époux
(7) Par dérogation au paragraphe (3), le tribunal peut, avec le consentement des époux,
fixer un montant qui est différent de celui qui serait déterminé conformément aux lignes
directrices applicables sil est convaincu que des arrangements raisonnables ont été conclus
pour les aliments de lenfant visé par lordonnance.
Arrangements raisonnables
(8) Pour lapplication du paragraphe (7), le tribunal tient compte des lignes directrices
applicables pour déterminer si les arrangements sont raisonnables. Toutefois, les
arrangements ne sont pas déraisonnables du seul fait que le montant sur lequel les conjoints
sentendent est différent de celui qui serait déterminé conformément aux lignes directrices
applicables.
1997, ch. 1, art. 2.
ORDONNANCES ALIMENTAIRES AU PROFIT DUN EPOUX
Ordonnance alimentaire au profit dun époux
15.2 (1) Sur demande des époux ou de lun deux, le tribunal compétent peut rendre une
ordonnance enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, la
prestation, sous forme de capital, de pension ou des deux, quil estime raisonnable pour les
aliments de lautre époux.
Ordonnance provisoire
(2) Sur demande des époux ou de lun deux, le tribunal peut rendre une ordonnance
provisoire enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, dans
lattente dune décision sur la demande visée au paragraphe (1), la prestation, sous forme de
capital, de pension ou des deux, quil estime raisonnable pour les aliments de lautre époux.
Modalités
(3) La durée de validité de lordonnance ou de lordonnance provisoire rendue par le
tribunal au titre du présent article peut être déterminée ou indéterminée ou dépendre dun
événement précis; elle peut être assujettie aux modalités ou aux restrictions que le tribunal
estime justes et appropriées.
Facteurs
(4) En rendant une ordonnance ou une ordonnance provisoire au titre du présent article, le
tribunal tient compte des ressources, des besoins et, dune façon générale, de la situation de
chaque époux, y compris :
a) la durée de la cohabitation des époux;
b) les fonctions quils ont remplies au cours de celle-ci;
c) toute ordonnance, toute entente ou tout arrangement alimentaire au profit de lun ou
lautre des époux.
Fautes du conjoint
(5) En rendant une ordonnance ou une ordonnance provisoire au titre du présent article, le
tribunal ne tient pas compte des fautes commises par lun ou lautre des époux relativement
au mariage.
Objectifs de lordonnance alimentaire au profit dun époux
(6) Lordonnance ou lordonnance provisoire rendue pour les aliments dun époux au titre
du présent article vise :
a) à prendre en compte les avantages ou les inconvénients économiques qui découlent,
pour les époux, du mariage ou de son échec;
b) à répartir entre eux les conséquences économiques qui découlent du soin de tout enfant
à charge, en sus de toute obligation alimentaire relative à tout enfant à charge;
c) à remédier à toute difficulté économique que léchec du mariage leur cause;
d) à favoriser, dans la mesure du possible, lindépendance économique de chacun deux
dans un délai raisonnable.
1997, ch. 1, art. 2.
PRIORITE
Priorité aux aliments pour enfants
15.3 (1) Dans le cas où une demande dordonnance alimentaire au profit dun enfant et
une demande dordonnance alimentaire au profit dun époux lui sont présentées, le tribunal
donne la priorité aux aliments de lenfant.
Motifs
(2) Si, en raison du fait quil a donné la priorité aux aliments de lenfant, il ne peut rendre
une ordonnance alimentaire au profit dun époux ou fixe un montant moindre pour les
aliments de celui-ci, le tribunal enregistre les motifs de sa décision.
Réduction ou suppression des aliments de lenfant
(3) Dans le cadre dune demande dordonnance alimentaire au profit dun époux ou dune
ordonnance modificative de celle-ci, la réduction ou la suppression des aliments dun enfant
constitue un changement dans la situation des ex-époux si, en raison du fait quil a donné la
priorité aux aliments de lenfant, le tribunal na pu rendre une ordonnance alimentaire au
profit de lépoux ou a fixé un montant moindre pour les aliments de celui-ci.
1997, ch. 1, art. 2.
MODIFICATION, ANNULATION OU SUSPENSION DES ORDONNANCES
Ordonnance modificative
17. (1) Le tribunal compétent peut rendre une ordonnance qui modifie, suspend ou annule,
rétroactivement ou pour lavenir :
a) une ordonnance alimentaire ou telle de ses dispositions, sur demande des ex-époux ou
de lun deux;
b) une ordonnance de garde ou telle de ses dispositions, sur demande des ex-époux ou de
lun deux ou de toute autre personne.
Demande par une autre personne
(2) Pour présenter une demande au titre de lalinéa (1)b), une personne autre quun exépoux doit obtenir lautorisation du tribunal.
Modalités de lordonnance
(3) Le tribunal peut assortir une ordonnance modificative des mesures quaurait pu
comporter, sous le régime de la présente loi, lordonnance dont la modification a été
demandée.
Facteurs ordonnance alimentaire au profit dun enfant
(4) Avant de rendre une ordonnance modificative de lordonnance alimentaire au profit dun
enfant, le tribunal sassure quil est survenu un changement de situation, selon les lignes
directrices applicables, depuis que cette ordonnance ou la dernière ordonnance modificative de
celle-ci a été rendue.
Facteurs ordonnance alimentaire au profit dun époux
(4.1) Avant de rendre une ordonnance modificative de lordonnance alimentaire au profit
dun époux, le tribunal sassure quil est survenu un changement dans les ressources, les
besoins ou, dune façon générale, la situation de lun ou lautre des ex-époux depuis que cette
ordonnance ou la dernière ordonnance modificative de celle-ci a été rendue et tient compte du
changement en rendant lordonnance modificative.
Facteurs considérés pour lordonnance de garde
(5) Avant de rendre une ordonnance modificative de lordonnance de garde, le tribunal doit
sassurer quil est survenu un changement dans les ressources, les besoins ou, dune façon
générale, dans la situation de lenfant à charge depuis le prononcé de lordonnance de garde
ou de la dernière ordonnance modificative de celle-ci et, le cas échéant, ne tient compte que
de lintérêt de lenfant, défini en fonction de ce changement, en rendant lordonnance
modificative.
Ordonnance modificative
(5.1) Pour les besoins du paragraphe (5), la maladie en phase terminale ou létat critique
dun ex-époux constitue un changement dans la situation de lenfant à charge; le tribunal rend
alors une ordonnance modificative relative à laccès auprès de lenfant qui est dans lintérêt de
celui-ci.
Conduite
(6) En rendant une ordonnance modificative, le tribunal ne tient pas compte dune conduite
qui naurait pu être prise en considération lors du prononcé de lordonnance dont la
modification a été demandée.
Application des lignes directrices
(6.1) Le tribunal qui rend une ordonnance modificative dune ordonnance alimentaire au
profit dun enfant la rend conformément aux lignes directrices applicables.
Ententes, ordonnances, jugements, etc.
(6.2) En rendant une ordonnance modificative dune ordonnance alimentaire au profit dun
enfant, le tribunal peut, par dérogation au paragraphe (6.1), fixer un montant différent de
celui qui serait déterminé conformément aux lignes directrices applicables sil est convaincu, à
la fois :
a) que des dispositions spéciales dun jugement, dune ordonnance ou dune entente écrite
relatifs aux obligations financières des époux ou au partage ou au transfert de leurs biens
accordent directement ou indirectement un avantage à un enfant pour qui les aliments sont
demandés, ou que des dispositions spéciales ont été prises pour lui accorder autrement un
avantage;
b) que le montant déterminé conformément aux lignes directrices applicables serait
inéquitable eu égard à ces dispositions.
Motifs
(6.3) Sil fixe, au titre du paragraphe (6.2), un montant qui est différent de celui qui serait
déterminé conformément aux lignes directrices applicables, le tribunal enregistre les motifs de
sa décision.
Consentement des époux
(6.4) Par dérogation au paragraphe (6.1), le tribunal peut, avec le consentement des
époux, fixer un montant qui est différent de celui qui serait déterminé conformément aux
lignes directrices applicables sil est convaincu que des arrangements raisonnables ont été
conclus pour les aliments de lenfant visé par lordonnance.
Arrangements raisonnables
(6.5) Pour lapplication du paragraphe (6.4), le tribunal tient compte des lignes directrices
applicables pour déterminer si les arrangements sont raisonnables. Toutefois, les
arrangements ne sont pas déraisonnables du seul fait que le montant sur lequel les conjoints
sentendent est différent de celui qui serait déterminé conformément aux lignes directrices
applicables.
Objectifs de lordonnance modificative de lordonnance alimentaire au profit dun époux
(7) Lordonnance modificative de lordonnance alimentaire au profit dun époux vise :
a) à prendre en compte les avantages ou inconvénients économiques qui découlent pour les
ex-époux du mariage ou de son échec;
b) à répartir entre eux les conséquences économiques qui découlent du soin de tout enfant
à charge, en sus de toute obligation alimentaire relative à tout enfant à charge;
c) à remédier à toute difficulté économique que léchec du mariage leur cause;
d) à favoriser, dans la mesure du possible, lindépendance économique de chacun deux
dans un délai raisonnable.
(8) [Abrogé, 1997, ch. 1, art. 5]
Maximum de communication
(9) En rendant une ordonnance modificative dune ordonnance de garde, le tribunal
applique le principe selon lequel lenfant à charge doit avoir avec chaque ex-époux le plus de
contact compatible avec son propre intérêt et, si lordonnance modificative doit accorder la
garde à une personne qui ne la pas actuellement, le tribunal tient compte du fait que cette
personne est disposée ou non à faciliter ce contact.
Restriction
(10) Par dérogation au paragraphe (1), le tribunal ne peut modifier lordonnance
alimentaire au profit dun époux dont la durée de validité est déterminée ou dépend dun
événement précis, sur demande présentée après léchéance de son terme ou après la
survenance de cet événement, en vue de la reprise de la fourniture des aliments, que sil est
convaincu des faits suivants :
a) lordonnance modificative simpose pour remédier à une difficulté économique causée
par un changement visé au paragraphe (4.1) et lié au mariage;
b) la nouvelle situation, si elle avait existé à lépoque où lordonnance alimentaire au profit
dun époux ou la dernière ordonnance modificative de celle-ci a été rendue, aurait
vraisemblablement donné lieu à une ordonnance différente.
Copie de lordonnance
(11) Le tribunal qui rend une ordonnance modificative dune ordonnance alimentaire ou de
garde rendue par un autre tribunal envoie à celui-ci une copie, certifiée conforme par un de
ses juges ou fonctionnaires, de lordonnance modificative.
L.R. (1985), ch. 3 (2e suppl.), art. 17; 1997, ch. 1, art. 5; 2007, ch. 14, art. 1.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp)
COROLLARY RELIEF
INTERPRETATION
Definition of spouse
15. In sections 15.1 to 16, spouse has the meaning assigned by subsection 2(1), and
includes a former spouse.
R.S., 1985, c. 3 (2nd Supp.), s. 15; 1997, c. 1, s. 2.
CHILD SUPPORT ORDERS
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses,
make an order requiring a spouse to pay for the support of any or all children of the marriage.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by
either or both spouses, make an interim order requiring a spouse to pay for the support of any
or all children of the marriage, pending the determination of the application under subsection
(1).
Guidelines apply
(3) A court making an order under subsection (1) or an interim order under subsection (2)
shall do so in accordance with the applicable guidelines.
Terms and conditions
(4) The court may make an order under subsection (1) or an interim order under
subsection (2) for a definite or indefinite period or until a specified event occurs, and may
impose terms, conditions or restrictions in connection with the order or interim order as it
thinks fit and just.
Court may take agreement, etc., into account
(5) Notwithstanding subsection (3), a court may award an amount that is different from the
amount that would be determined in accordance with the applicable guidelines if the court is
satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the
financial obligations of the spouses, or the division or transfer of their property, directly or
indirectly benefit a child, or that special provisions have otherwise been made for the
benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child
support that is inequitable given those special provisions.
Reasons
(6) Where the court awards, pursuant to subsection (5), an amount that is different from
the amount that would be determined in accordance with the applicable guidelines, the court
shall record its reasons for having done so.
Consent orders
(7) Notwithstanding subsection (3), a court may award an amount that is different from the
amount that would be determined in accordance with the applicable guidelines on the consent
of both spouses if it is satisfied that reasonable arrangements have been made for the support
of the child to whom the order relates.
Reasonable arrangements
(8) For the purposes of subsection (7), in determining whether reasonable arrangements
have been made for the support of a child, the court shall have regard to the applicable
guidelines. However, the court shall not consider the arrangements to be unreasonable solely
because the amount of support agreed to is not the same as the amount that would otherwise
have been determined in accordance with the applicable guidelines.
1997, c. 1, s. 2.
SPOUSAL SUPPORT ORDERS
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses,
make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or
periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the
support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by
either or both spouses, make an interim order requiring a spouse to secure or pay, or to
secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the
court thinks reasonable for the support of the other spouse, pending the determination of the
application under subsection (1).
(3) The court may make an order under subsection (1) or an interim order under
subsection (2) for a definite or indefinite period or until a specified event occurs, and may
impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the
court shall take into consideration the condition, means, needs and other circumstances of
each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the
court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that
provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the
marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any
child of the marriage over and above any obligation for the support of any child of the
marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the
marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a
reasonable period of time.
1997, c. 1, s. 2.
PRIORITY
Priority to child support
15.3 (1) Where a court is considering an application for a child support order and an
application for a spousal support order, the court shall give priority to child support in
determining the applications.
Reasons
(2) Where, as a result of giving priority to child support, the court is unable to make a
spousal support order or the court makes a spousal support order in an amount that is less
than it otherwise would have been, the court shall record its reasons for having done so.
Consequences of reduction or termination of child support order
(3) Where, as a result of giving priority to child support, a spousal support order was not
made, or the amount of a spousal support order is less than it otherwise would have been, any
subsequent reduction or termination of that child support constitutes a change of
circumstances for the purposes of applying for a spousal support order, or a variation order in
respect of the spousal support order, as the case may be.
1997, c. 1, s. 2.
VARIATION, RESCISSION OR SUSPENSION OF ORDERS
Order for variation, rescission or suspension
17. (1) A court of competent jurisdiction may make an order varying, rescinding or
suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former
spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses
or by any other person.
Application by other person
(2) A person, other than a former spouse, may not make an application under paragraph
(1)(b) without leave of the court.
(3) The court may include in a variation order any provision that under this Act could have
been included in the order in respect of which the variation order is sought.
Factors for child support order
(4) Before the court makes a variation order in respect of a child support order, the court
shall satisfy itself that a change of circumstances as provided for in the applicable guidelines
has occurred since the making of the child support order or the last variation order made in
respect of that order.
Factors for spousal support order
(4.1) Before the court makes a variation order in respect of a spousal support order, the
court shall satisfy itself that a change in the condition, means, needs or other circumstances of
either former spouse has occurred since the making of the spousal support order or the last
variation order made in respect of that order, and, in making the variation order, the court
shall take that change into consideration.
Factors for custody order
(5) Before the court makes a variation order in respect of a custody order, the court shall
satisfy itself that there has been a change in the condition, means, needs or other
circumstances of the child of the marriage occurring since the making of the custody order or
the last variation order made in respect of that order, as the case may be, and, in making the
variation order, the court shall take into consideration only the best interests of the child as
determined by reference to that change.
Variation order
(5.1) For the purposes of subsection (5), a former spouses terminal illness or critical
condition shall be considered a change of circumstances of the child of the marriage, and the
court shall make a variation order in respect of access that is in the best interests of the child.
Conduct
(6) In making a variation order, the court shall not take into consideration any conduct that
under this Act could not have been considered in making the order in respect of which the
variation order is sought.
Guidelines apply
(6.1) A court making a variation order in respect of a child support order shall do so in
accordance with the applicable guidelines.
Court may take agreement, etc., into account
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child
support order, a court may award an amount that is different from the amount that would be
determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the
financial obligations of the spouses, or the division or transfer of their property, directly or
indirectly benefit a child, or that special provisions have otherwise been made for the
benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child
support that is inequitable given those special provisions.
Reasons
(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different
from the amount that would be determined in accordance with the applicable guidelines, the
court shall record its reasons for having done so.
Consent orders
(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from
the amount that would be determined in accordance with the applicable guidelines on the
consent of both spouses if it is satisfied that reasonable arrangements have been made for the
support of the child to whom the order relates.
Reasonable arrangements
(6.5) For the purposes of subsection (6.4), in determining whether reasonable
arrangements have been made for the support of a child, the court shall have regard to the
applicable guidelines. However, the court shall not consider the arrangements to be
unreasonable solely because the amount of support agreed to is not the same as the amount
that would otherwise have been determined in accordance with the applicable guidelines.
Objectives of variation order varying spousal support order
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising
from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care
of any child of the marriage over and above any obligation for the support of any child of
the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the
marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse
within a reasonable period of time.
(8) [Repealed, 1997, c. 1, s. 5]
Maximum contact
(9) In making a variation order varying a custody order, the court shall give effect to the
principle that a child of the marriage should have as much contact with each former spouse as
is consistent with the best interests of the child and, for that purpose, where the variation
order would grant custody of the child to a person who does not currently have custody, the
court shall take into consideration the willingness of that person to facilitate such contact.
Limitation
(10) Notwithstanding subsection (1), where a spousal support order provides for support
for a definite period or until a specified event occurs, a court may not, on an application
instituted after the expiration of that period or the occurrence of the event, make a variation
order for the purpose of resuming that support unless the court is satisfied that
(a) a variation order is necessary to relieve economic hardship arising from a change
described in subsection (4.1) that is related to the marriage; and
(b) the changed circumstances, had they existed at the time of the making of the spousal
support order or the last variation order made in respect of that order, as the case may be,
would likely have resulted in a different order.
Copy of order
(11) Where a court makes a variation order in respect of a support order or a custody order
made by another court, it shall send a copy of the variation order, certified by a judge or
officer of the court, to that other court.
R.S., 1985, c. 3 (2nd Supp.), s. 17; 1997, c. 1, s. 5; 2007, c. 14, s. 1.

Appellant L.-M.-P. Redacted

Transcription

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