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Gabarit EDJ

Droit de la famille — 141007

2014 QCCS 1900

JM2232

 
SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

N°:

500-12-312313-129

 

DATE:

May 5, 2014

______________________________________________________________________

 

IN THE PRESENCE OF THE HONOURABLE PAUL MAYER, J.S.C.

______________________________________________________________________

 

C

PLAINTIFF

 

v.

 

B

DEFENDANT

______________________________________________________________________

 

TRANSCRIPTION OF JUDGEMENT PRONOUNCED

ORALLY ON MAY 2, 2014[1]

______________________________________________________________________

 

1.         INTRODUCTION

[1]           In February 2012, after some 20 years of marriage and four children, Mr. C (“Mr. C”) initiated divorce proceedings.  He seeks custody of his minor son, X (“X”), the partition of the family patrimony and the dissolution of the partnership of acquests.

[2]           Mrs. B (“Mrs. B”) agrees with the divorce petition and that Mr. C shall have custody of X.  She disputes the proposed partition of the family patrimony and the division of debts.

2.         THE FACTS

2.1       The parties

[3]           Mrs. B is 51 years old.  She has a […] ([University A]).  She was an accounting mid-level manager until the birth of the children.

[4]           Mr. C is 54 years old.  He holds both a law degree (University B) and an MBA ([University C]).  After an initial few years as an attorney, he has been working as a merchant banker since 1987.  This is an area of work where the appearance of financial success is an important asset that inspires the confidence of clients.

[5]           The parties have been a couple since 1987.  They were married in Town A, [Country A], in April 1993, without a marriage contract under the legal regime of partnership of acquests.

2.2       1987 to 2000

[6]           During the period of 1987 to 2000, Mr. C earned in the vicinity of $400,000 to $625,000 per year.  Because of these revenues, the young family enjoyed [a Town B] lifestyle with a fulltime nanny, a gardener-landscaper, private schools, holidays and expensive cars.

[7]           From 1987 to 1994, Mr. C worked with [Company A] as a merchant banker.

[8]           In […], Y (“Y”) and Z (“Z”) were born.  At the time, the couple lived in a townhouse they owned jointly on [Street A], in Town B.

[9]           From 1994 to 1997, Mr. C worked with [Company B].

[10]        Their third child, A (“A”), was born in […] 1995.  A decision was made that Mrs. B would not return to work as she had her hands full with the babies.

[11]        In 1996, the couple purchased a larger family home on [Avenue A] in Town B.  It was registered solely in Mrs. B’s name to provide her with financial security.

[12]        In 1998, Mr. C changed employer to work with [Company C].  Things were going well as he received a handsome signing bonus.

[13]        In […] 1999, X was born.

[14]        That fall, Mrs. B’s mother was diagnosed with cancer.  She threw herself wholeheartedly to care for her mother who passed away in 2003.

2.3       2000 to 2012

[15]        In the year 2000, with four children under the age of 5, Mr. C lost his job.

[16]        As he had received an important severance package and he was not enjoying the pressure and stress of being an investment banker, he incorporated [Company D] to offer his services as a consultant on mergers and acquisitions.  Mrs. B was made an equal shareholder of the company in order to put in place an income splitting strategy that would minimize income taxes.

[17]        In this line of work, one is remunerated with a small retainer and a success fee at the end of each transaction.  Unfortunately, not every transaction in the pipeline is successful.

[18]        Mr. C is a true believer in the doctrine of optimism, that is, the belief that everything is beautiful and that adversity will be overcome.  He holds this belied in blind faith with the greatest tenacity.

[19]        For the next decade, the family lived in a world of make believe to keep up appearances in order to portray success.  As Mrs. B explains it, they were on a perpetual treadmill of high hopes and dashed dreams that Mr. C would earn sufficient money to maintain the lifestyle they had become accustomed to.

[20]        The couple faced relatively lean years.  In 2000 and 2001, Mr. C earned practically nothing.

[21]        Thereafter, his revenues fluctuated like a see-saw.  The following is the income that he declared for the years 2004 to 2010 :[2]

Year

Revenues

2004

$200,000

2005

$59,000

2006

$126,000

2007

$203,000

2008

$268,000

2009

$81,000

2010

$40,000

[22]        Just as his revenues diminished, the family’s expenses increased.  All four children were sent to private schools at a cost of $12,000 to $16,000 per year per child.

[23]        As well, Z began playing [Sport A] in the year 2000.  Her initial promise was soon evident.  Her parents expended both energy and costs to help her develop.  It became an all consuming project.

[24]        In face of mounting costs and unrealistic hopes that the next transaction would bring in revenues, they had to make adjustments.  Mr. C’s RRSP was quickly consumed.  The nanny and the gardener were let go in the year 2002.  At one point, they stopped insuring the house as they could not afford the premiums.  The children’s clothes were bought at Walmart!

[25]        They indebted themselves with various credit cards and numerous lines of credit.  They stopped paying their real estate taxes and several accounts.  Needed repairs and maintenance were postponed.  From time to time: i) the electricity was interrupted; ii) the oil company refused to deliver unless their arrears were paid; and iii) their telephone was cut off.

[26]        Despite an aggressive income splitting tax planning strategy put in place by Mr. C to minimize income taxes, he stopped paying them altogether.  Bailiffs appeared at the door and liens and legal hypothecs were registered against the family home.

[27]        For the following decade, they lived one step ahead of their creditors.  Whenever Mr. C would earn a success fee, he would allocate it as best he could among various creditors.

[28]        In parallel to this difficult financial situation, Mrs. B became depressed as she coped with the illness of her mother, the loss of the nanny and the challenge of raising a young family with uncertain revenues.  Between 2002 and 2003, the state of the family residence dramatically deteriorated.

[29]        She developed a hoarding disorder characterized by an unwillingness to discard large quantities of objects that covered the living area of the family residence.  This had a severe impact on all family members.  It limited activities such as cooking and cleaning.  Moving through the house became difficult.  This is a family secret that remains swept under the carpet to this day.  Since 2003, no friends or extended family members have been invited over to the family home.  On their way back to the house from school, the children would take different routes in order to make sure that none of their friends asked to come in.  It is an issue that was an important source of friction in the marriage.

[30]        In 2002 or 2003, strangled financially by mounting debt, Mr. C suggested something quite rational.  They should clean up and sell the house, move to a less expensive home in Town B, place the children in public schools and settle all their debts.

[31]        For an unexplained reason, this was not done.

[32]        Instead, the family continued accumulating debt, borrowing from one to pay another for the sake of appearances.  For example, X was sent to a private school for kindergarten, grades 1 and 2 at a cost exceeding $16,000 per year in 2004, 2005 and 2006 when they could clearly not afford to do so.

[33]        In July 2006, Mr. C borrowed $50,000 from his mother to pay down a portion of their credit card debts.  She borrowed the money to do so and granted a mortgage on her condominium as security.

[34]        By then, it became apparent that Z was a talented athlete who was working hard to develop her unique skills.  Her development required expenses for lessons, private one-on-one coaching, training camps, travel, equipment and much more.  Both parents expended effort and money to help her realize her potential.  With hindsight, we can now see that they were right to do so […].

[35]        In 2003, when she was 9 year-old, Mr. C developed a tax scheme to help recover some of the expenses he incurred.  He founded [Company E], with another individual to finance Z’s development.  Mr. C contributed to the partnership what he expected to pay for [Sport A] expenses.  He then claimed those amounts as business losses.

[36]        Following an audit of the years 2005, 2006 and 2007, the Canada Revenue Agency disallowed some $80,000 of business losses he had claimed. The appeal of that decision to reassess him was dismissed in […].[3]

[37]        In the fall of 2006, Mrs. B moved to Town C with Z to attend a [Sport A] academy.  Despite the fact that they could not make ends meet and they were living on borrowed money and not paying their income taxes, a decision was made to rent a two bedroom condominium in Town C at a cost of $2,000 per month.

[38]        In the fall of 2007, all four children lived in Town C with Mrs. B while Mr. C stayed behind in Town B to earn a living.  He would visit them whenever he could.

[39]        While the family was away, Mr. C became romantically involved with another woman.

[40]        In the fall of 2008, Y came back to Town B to attend her private school and live with Mr. C while Z, A and X remained in Town C with Mrs. B.  That same year, Mr. C leased a BMW X5 at monthly rental of over $1,000 per month as he needed a nice car to project success.

[41]        In February 2009, Z received a sum of $40,000 from an [Company F] sponsorship.  As she was only 14, the sum was deposited in her bank account over which only Mrs. B had signing authority.  A week later, her parents withdrew $10,000 from her account to make ends meet.  Three weeks later, another $10,000 was taken.  Over the years, some $130,000 was removed from Z’s account in this manner until 2012.

[42]        In June, Mr. C’s girlfriend called Mrs. B to tell her about her affair with Mr. C. She sent pictures of the New Year’s Eve she had spent with him.  From that moment on, the marriage became, once and for all, one of convenience only.  When the parties were together, they slept in separate rooms.

[43]        In the fall, Z, A and X moved back to Town B so that Z could train at [Centre A] in Town B.  For a period of time, Mrs. B remained alone in Town C.  They were unable to return the condominium to the landlord given its total disarray because of Mrs. B’s hoarding disorder.  The lease was prolonged until July 2010 so that Mr. C could clean it from top to bottom.

[44]        In the spring of 2010, Mr. C came to the belated realization that he was not going to make it working as a consultant on his own.  He joined a small group of two other merchant bankers.  For appearances, he was given the courtesy title of a partner even though he did not have the funds to be one.  Once again, he would be paid a success fee only when transactions he worked on were completed.  Always the optimist, it took until the end of October 2011 for him to earn a substantial fee for the sale of a supermarket chain.

[45]        In the fall, given their difficult financial situation, Mrs. B suggested that A should no longer go to her private school.  There was a heated discussion about the issue as Mr. C favoured the status quo.  A, who was then 15 years old, was deeply worried that she would be humiliated and lose her school friends so she became quite distressed.  Her parents relented.

[46]        In July 2011, Mr. C’s father passed away.  Mr. C received $175,000 as an inheritance in the fall.  At about the same time, he was paid a $150,000 success fee for a transaction he had been involved in.

[47]        With this money, Mr. C paid down some of his income tax debts (not those of Mrs. B) and the credit cards.  He also purchased a used 2008 Mercedes-Benz.

2.4       The separation

[48]        In February 2012, he decided to move on.

[49]        He leased a five bedroom home on [Avenue B], in Town B, for a rent of $4,500 per month.  He paid one year’s rent upfront.  He purchased between $30,000 and $40,000 worth of furniture.

[50]        He says he was trying to provide his children with a decent place to live away from the clutter and disarray on [Avenue A].  Y, A and X have been living with him since then.

[51]        After leaving the family residence, Mr. C continued to pay for the monthly costs of the $600,000 mortgage on [Avenue A], as well as the cable, telephone, oil heating and electricity.  He also paid for Mrs. B’s cell phone and her use of two credit cards.

[52]        In January 2012, Mrs. B and Y had gone for a week vacation to Jamaica.  This expense had been put on Mr. C’s credit card.  In February, he heard from X that Mrs. B was planning a trip to Town C during the upcoming spring break with A and X.

[53]        He reacted by cancelling both credit cards being used by Mrs. B.  He notified her that he had done so and he urged her to clean up the house so it could be sold to pay off debts.[4]

[54]        In March, Mrs. B undertook to fix and clean the house so she could have the shared custody of the children as of May 1st.[5]  Two years later, this has not yet been done.

[55]        Since the separation, Mr. C’s revenues have continued to fluctuate wildly.  Over a three year period, he has earned on average approximately $200,000 per year.  In 2010 and 2011, Mr. C declared some $300,000 of revenues per year.  In 2013, he earned $152,000.  He has not earned any revenues since October 2013.

[56]        Y and A have part-time jobs to cover their expenses.

[57]        In July 2013, Mr. C wrote Mrs. B to notify her that he could no longer continue to pay the [Avenue A] property expenses given that a transaction he had been working on was cancelled.[6]  He wrote that he had no predictable source of revenue or the means to borrow any more.  He offered to help clean the family residence so that it could be sold.

[58]        Mr. C has been solely responsible for the cost and care of Y, A and X.  In 2014, Y is in her first year of university (some $4,000 per year), A is in a private CEGEP (some $5,000 per year) and X is in grade 9 in a private school. Thanks to a scholarship and financial aid, his school fees amount to roughly $10,000 per year.

[59]        Mr. C explains that he has not paid the rent of January 2014 and he does not expect to be able to pay it on May 1st.  He is hopeful that he will receive a success fee of approximately $75,000 at the end of May that will give him a chance to catch up with a few creditors.

[60]        In the meantime, during the past two years, Mrs. B has spent nearly all of her time travelling with Z.

[61]        She says that caring for Z is seven-days a week work as she wears some 10 different hats for her.  Given that Z does not yet have a driver’s licence, she is her driver.  She is also her de facto agent and does all of the business side of things like a manager would do.  For example, she hired and fired three people in the past few months.  She is currently actively searching for a new agent.  She is also a part-time coach, fitness trainer, hair stylist, travel agent, media advisor and stylist shopper.  She explains that she does all of this free of charge because Z wants her to be there for her.

[62]        Mrs. B says that she is not paid a salary for her services but that Z pays all of her expenses and credit cards.

[63]        The evidence in respect to this is threadbare.  It does show, however, that Z has wire transferred some $70,000 in Mrs. B’s bank account during the past six months to pay, among other things, the overdue real estate taxes and the mortgage of [Avenue A].[7]

3.         DIVORCE

[64]        Section 8 of the Divorce Act stipulates that the Court may grant a divorce on the grounds that there has been a breakdown of the marriage.[8]

[65]        Such a breakdown is established, among other ways, when spouses have lived separate and apart for at least one year, as it is in this case.

[66]        The Court will, therefore, pronounce the divorce of the parties.

4.         CUSTODY OF X, ACCESS RIGHTS AND COMMUNICATIONS

4.1       Custody

[67]        The parties both agree that Mr. C is to obtain the custody of X as he has been his primary caregiver for the past few years and Mrs. B is most often away from Town B.

[68]        X is currently 14 years old.  He is an exceptional student.

[69]        Given these circumstances, the Court will award custody to Mr. C.

4.2       Access rights

[70]        A word here about access rights and priorities of life is merited.

[71]        Section 16 (10) of the Divorce Act provides that in making an order in respect of the custody or access of a child, the Court should give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interest of the child.[9]

[72]        Two years ago, in March 2012, when he was 12 years old, X expressed his wish to spend half of his time with his mother and the other half with his father.[10]  It should also be noted that at the same time, both Y and A indicated that they would like to live primarily with Mrs. B once she fixed the house.[11]

[73]        This has not been possible given the state of the [Avenue A] home and the fact that Mrs. B travels with Z nearly all year long.  Despite her undertaking to fix the house two years ago and the steep cost of owning a home that remains underutilized, Mrs. B has not attended to this.  Nor has she sought the professional help she requires to deal with her destructive and harmful hoarding disorder.  She is too busy to do so.

[74]        During the past few years, Mrs. B’s near total focus has been on the welfare of Z.  She has thus become a virtual mother for Y (20 years old), A (18 years old) and X.

[75]        It should be noted that the right of access of a child to a parent belongs to the child. Article 32 of the Civil Code of Quebec (“C.C.Q.”) provides as follows:

32. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are able to give to him.”

[76]        Too often, one looks at the perspective of access rights from the point of view of a parent to a child when, in fact, the right of access is the entitlement of a child to benefit from his parent.

[77]        X in his most formative years. He is being deprived of his right to be with Mrs. B on an equal basis with his father.

[78]        Mrs. B has made choices that are hers to make.

[79]        With all respect, however, the Court considers that Mrs. B’s first priority should be to obtain the necessary professional help required to treat her hoarding disorder.  She should clean up the house so she can receive Y, A and X in order to provide them with the maternal care they deserve when she is in Town B.

[80]        In light of this, Mrs. B will be granted access rights in accordance with X’s wishes.  These may have evolved since he expressed his wishes in 2012.

[81]        She will, however, have to provide Mr. C with a two week prior written notice of any scheduled access rights outside of Town B.

4.3       Communication

[82]        As the old adage goes, it takes two people to communicate.  Dialogue is an essential element when raising children.

[83]        Mrs. B has not spoken to Mr. C since he moved out of the house.  She never replied to any of his emails except on one rare occasion in January 2014.  Nor has she ever called him to address the wellbeing of the children. She refuses to speak or write to him.

[84]        Given this situation, Mr. C learned from X that he would spend his 2014 spring break in California with Mrs. B and Z.

[85]        Faced with serious issues relating to the [Avenue A] property on three occasions, she asked Z to call her father “so he would stop jerking us around”, thereby placing her directly in the conflict and creating harmful parental alienation.

[86]        Quite simply, this has to stop.

[87]        To start, the Court will require Mrs. B to communicate and discuss any travel plans beforehand with Mr. C before she announces same to X in the future.

[88]        The children of this marriage deserve much better than the high level of conflict between their parents, who both have their fair share of qualities and flaws.  More than anyone, the children can perceive the dislike that exists between their parents and the influence being exerted on them to pick sides thus, splitting the family in two.

[89]        This behavior may well be self-centered (not to say selfish).  It is certainly not sensitive to the children’s needs or desire to have parents who get along.  It is also unjust, harmful and destructive.  There are serious risks of lasting psychological consequences for the children.

[90]        Nevertheless, both parties are intelligent.  They have the capacity to change their ways if they commit themselves to an adequate co-parenting relationship free of conflict in the best interest of their children.  The Court suggests that they take a co-parenting course or that they obtain a coach to help them reach that objective.  The children deserve it.  Their wellbeing requires it.

5.         ALIMENTARY SUPPORT FOR Y, A AND X

[91]        Mr. C foregoes his right to claim an alimentary pension for Y, A and X from Mrs. B.  Mr. C explains that he does not seek a pension for the children that reside with him because he fears this would displease Z and he does not want to further tax his relationship with her.

[92]        Article 15 (1) of the Divorce Act provides that the Court may make an order requiring a spouse to pay for the support of the children of the marriage.[12]

[93]        Mrs. B offers no support given that she earns no revenues.  She explains that she does not need to be paid as she assumes her role with Z as a mother not an employee.  It is what she has done for years.

[94]        The Court notes that this might not be in Z’s best interest.

[95]        If a salary was paid to Mrs. B commensurate with her tasks, Z could surely deduct this as an expense from the revenues she is generating instead of paying for an open buffet of expenses.  Currently, it is Z who is paying the running costs of the [Avenue A] property.  It should have been cleaned and readied for sale or occupancy many years ago. This is a waste of hard earned money.  Empty, it costs $50,000 to $60,000 a year (of after tax money) to pay its mortgage, real estate taxes and heating.

[96]        This situation also deprives Mrs. B from gaining her financial independence and from contributing to the care and sustenance of the rest of the children.  It also prevents her from seeking professional help for her hoarding disorder or other forms of employment she is clearly qualified for.

[97]        The Court considers that it has the authority to adjudicate, ultra petita, an alimentary obligation on Mrs. B pursuant to Article 825.12 of the Code of Civil Procedure (“C.C.P.”).[13]

[98]        The Civil Code imposes a duty on parents to support their children.  Article 599 C.C.Q. stipulates that :

The father and mother have the rights and duties of custody, supervision and education of their children.

They shall maintain their children.

[our underlining]

[99]        Children have the right to obtain the financial help of their parents until they acquire sufficient financial autonomy. Y and A fall into that category given that they are still studying.  The alimentary obligation of a parent is of public order.  One cannot renounce to it for a child.[14]

[100]     In the case of M.(M.) c. B.(B.)[15], Mr. Justice Jean-Pierre Sénécal, indicated as follows:

[200]  Peu importe le type de dossier, un parent ne peut jamais valablement renoncer au droit de réclamer une pension alimentaire au profit d’un enfant.

[201]  Les tribunaux, y compris la Cour Suprême, ont confirmé à plusieurs reprises l’impossibilité pour un parent de renoncer au droit d’exercer un recours alimentaire pour les aliments d’un enfant puisque ce doit appartient en propre à l’enfant. […]

[101]     Judge Sénécal explains that a certain nuance can be made:

[204]  Un parent peut, dans les faits, renoncer à demander des aliments pour un enfant pendant un certain temps, alors qu’il pourrait les demander, ou renoncer à percevoir ceux qui ont été accordés par jugement.  Il ne peut toutefois jamais renoncer au droit de s’adresser au Tribunal et de présenter une demande. […]“

[our underlining]

[102]     Having stated this, given the circumstances, the Court will respect the choice made by Mr. C not to seek support from Mrs. B.  It will, nevertheless, reserve his right to do so should circumstances merit it in due course.

6.         FAMILY PATRIMONY

6.1       Value of the family residence

6.1.1    Position of the parties

[103]     Mr. C argues that the family residence is worth $1.7M in its current state.

[104]     He files into evidence the most recent municipal evaluation of the property showing a market value as of July 2012 for the 2014, 2015 and 2016 real estate evaluation roll of $1.9M.[16]  He also shows that their neighbours’ smaller house situated at [Address 1], was sold for $1.68M in May 2012.[17]  He estimates that the sum of $200,000 should be deducted to take into consideration the repairs that would be necessary to sell the property.

[105]     Mrs. B’s intentions about whether she wishes to keep or sell it remained unknown until she testified at the hearing.  She says she would like to keep it if she can. She explains that perhaps her father will buy it or lend her the funds necessary to keep it.  In any event, she estimates that the property is worth $1.4M.

[106]     She explains that [Address 1] was in a pristine condition when it was sold.  In contrast, the family residence is in disrepair having received no attention during the past 18 years. The gutters and plaster are falling, the paint is pealing, the bathroom pipes are leaking, the stone steps are crumbling and the retaining wall of the driveway is collapsing.  Just that last item alone will cost in the range of $20,000 to repair.  As the house was not heated during the winter of 2014, she has concerns that there are broken pipes that will need to be repaired.  It is currently uninhabitable.

6.1.2    Analysis and decision

[107]     Given the lack of expert evidence, the Court will arbitrate the issue.  It concludes that the most likely value of the property is $1.6M in its current state and condition.

[108]     There is a presumption that the $1.9M real estate evaluation is accurate for the neighbourhood.  No evidence was submitted to show that the real estate evaluation has been contested prior to the deadline of April 30, 2014.  A sum of $300,000 is deducted to clean it up and improve its appearance for sale without defects.

[109]     The property’s $600,000 mortgage will be deducted from the value of the home.  Its net value of $1M will be shared equally by the parties.

6.2       Registered Retirement Savings Plan (“RRSP”)

[110]     The parties agree that Mrs. B has $60,000 of RRSPs.  The Court will order her to transfer to Mr. C (Form T-2220) the amount of $30,000, with interest accrued thereon since the institution of the action.

6.3       Car

[111]     The parties agree that Mrs. B’s 2008 Chevrolet Suburdan was worth $20,000 in February 2012.  The Court will declare her to be the owner of this vehicle subject to her paying Mr. C the sum of $10,000.

[112]     Mr. C currently uses a leased car.

6.4       Art and furniture

[113]     The parties have agreed amicably to split the following art contained in the family residence as follows:

 

Mr. C

Mrs. B

Rousseau

Breton

Richard Tremblay

Half of the still-life reproductions or lithographs

Piché

American Artist Landscape

Abstract painting in playroom

Half of the still-life reproductions or lithographs

[114]     Both parties wish to keep the three Dina Podolski’s paintings.  Apparently, they go well together and should not be split as Solomon surely would have done.

[115]     The Court holds that these three paintings are to be awarded to Mr. C in exchange of all the furniture and the movable effects garnishing the family residence, save and except for a green cupboard, a hutch (vaisselier) and the dinning room table that will go to Mr. C.

7.         THE PARTNERSHIP OF ACQUESTS

[116]     The parties ask the Court to dissolve their legal regime, the partnership of acquests.  There are no assets therein.

[117]     There is a disagreement about how the debts are to be divided.

7.1       Tax debts

7.1.1    Position of the parties

[118]     Mr. C would like to split the following unpaid income taxes owed by him evenly:

a)            Revenue Canada                                            $78,927.32

b)            Revenue Quebec                                            $207,202.74

[119]     He also offers to assume half the taxes owing by Mrs. B that she has established as follows:

a)            Revenue Canada                                            $15.92

b)            Revenue Quebec                                            $280,821.07

[120]     In addition, he points out that Mrs. B has not filed her 2011 and 2012 income taxes.  He estimates that her taxes will be the same as his:

a)            2011 - Federal = $24,039.34 / Provincial = $34,261.47

b)            2012 - Federal = $26,017.86 / Provincial = $31,662.97

[121]     He offers to pay half of these taxes in the future when and if Mrs. B files her 2011 and 2012 income taxes.  Conversely, he asks her to pay half of his taxes if he is re-assessed for those years.

[122]     Mrs. B argues that she should not assume any of the tax debts.

[123]     She explains that Mr. C is the mastermind behind an illegal income splitting tax strategy.  He issued false management fees on her behalf, making her liable for GST and QST thereon.  She argues that he should have declared dividends instead if he wanted to respect tax laws.  She also says that she was kept in the dark about these matters.  In short, all of the unpaid income taxes are his debts.

7.1.2    Analysis and decision

[124]     There is no doubt that Mr. C did not properly administer the family finances.

[125]     Looking back on the accumulation of nearly $1.5M of debt since 2000, it is evident that he acted irrationally and that he may very well need professional quidance to help him deal with his recurrent inability to budget and live in accordance with his revenues.  He tried to keep up appearances and to maintain the illusion of success.  He wanted to keep Y, A and X in private schools and their Town B environment.  He assumed the responsibility of a Town C condominium and the expenses relating to Z’s [Sport A] career when the family could not afford to do so.

[126]     He was clearly thinking with his heart, not his head.

[127]     He was not, however, alone in making the financial decisions in this family.  For example, there are numerous financial consequences to the untreated hoarding disorder.

[128]     The Court is of the view that the tax indebtedness should be shared by the parties equally.  It is but one aspect of the family’s financial recklessness.  Mrs. B was involved in the income splitting strategy since 2000.  Any sum saved or not paid in taxes was spent on family needs.

7.2       Money due to H... M...

7.2.1    Position of the parties

[129]     Mr. C wishes to include in the debts to be shared equally the sum of $50,000 that he borrowed from his mother, Mrs. H... M....  He says that he undertook to repay her this sum and the monthly interest thereon.

[130]     Mrs. B does not want to assume half of this debt.  She says that there is insufficient proof that this sum was borrowed from her mother-in-law even though she does recall her assistance in the summer of 2006 to pay certain credit card debts.

7.2.2    Analysis and decision

[131]     Exhibit P-29 shows that Mrs. M... borrowed $50,000 in July 2006 from her local Caisse populaire Desjardins.  She granted a mortgage on her condominium as security for the line of credit.  It contains a handmade chart showing that the sum of $50,000 was remitted to Mr. C in June and July 2006 and the monthly interest thereon that he has from time to time.

[132]     The Court is satisfied from this evidence that this money was used by the couple and spent for the benefit of the family.  It is to be shared equally.

7.3       Money owed to Z

7.3.1    Position of the parties

[133]     As mentioned, Mr. C and Mrs. B took approximately $130,000 from Z’s bank account between 2009 and 2012 to pay family expenditures.[18]

[134]     Mrs. B wishes to include this amount in the family debts.  She points out quite correctly that pursuant to the C.C.Q. it was illegal to do so without a family tutorship council approval.[19]  These provisions cannot be ignored given that they are of public order.

[135]     Mr. C is not willing to include this amount as a family debt.  He points out that he spent much more than that to promote Z’s [Sport A] career. Among other things, he points out that she spent approximately $30,000 per year on his credit card until 2012.

[136]     He recalls that when Z was old enough to discuss the issue, it was talked through with her.  He says that she has never claimed the sum from him.

7.3.2    Analysis and decision

[137]     The Court determines that this sum should not be included in the debts to be shared by her parents.

[138]     Z has not made a claim to recover the sum from her parents.

[139]     In her motion for interim and provisional measures of February 2012, Mrs. B acknowledged that hundreds of thousands of dollars have been spent towards the advancement of her career.  There is no doubt that the sacrifice made by the whole family in time, effort and resource have helped her develop into the talented player she is and has given her the opportunity to earn a comfortable living today.

[140]     Z will eventually decide whether she wishes to claim this sum from her parents.

7.4       Common family debts

[141]     The parties agree to share the following common family debts:

a)            RBC line of credit                                            $100,000[20]

b)            TD line of credit                                               $  50,000[21]

c)            MGB line of credit                                           $  50,000[22]

d)            RBC line of credit (in Mrs. B’s name)           $    4,000[23]

Total:                                                                $204,000

7.5       Conclusion

[142]     The debts total in round numbers $820,967 ($78,927.32, $207,202.74, $15,92, $50,000 and $204,000).  They are to be shared equally ($410,483.50) by each party.

8.         ALIMENTARY PENSION

8.1       Position of the parties

[143]     Mrs. B asks the Court to order Mr. C to pay her spousal support in the amount of $4,000 per month.

[144]     Mr. C does not agree to do so.  He says that he cannot afford it and that Mrs. B has made no effort to seek employment as she is working and travelling fulltime with Z.

8.2       The law

[145]     A Court has a certain degree of discretion when it pronounces a decision with respect to spousal support.  In its determination, the Court must attempt to maintain the standard of living enjoyed during the marriage where it is possible.

[146]     In making such an order, 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 spouses.[24]

[147]     Further, in reaching a decision, the Court is not to take into consideration the misconduct of a spouse in relation to the marriage.[25]

[148]     The objective of spousal support should be to:

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.[26]

8.3       Analysis and decision

[149]     In the case at hand, the Court is convinced that no alimony is to be awarded for the time being.

[150]     This decision is made despite the fact that the parties had a traditional 20 year marriage and that the role of Mrs. B in the marriage was that of the primary caregiver of her children.

[151]     Both parties submitted budgets more than two years ago that illustrated that they were living beyond their means given their revenues.  Neither of these have been updated to reflect today’s reality.

[152]     Mrs. B does not have financial independence.  Her budget submitted in February 2012 illustrated a monthly deficit above $3,000 per month without taking into consideration the operating expenses of the [Avenue A] property.  Yet, she has shown no evidence of incurring any debts these past few years as all her travel and living expenses are paid by Z.

[153]     On the other hand, Mr. C had monthly expenses that well exceeded his revenues.  His March 2012 statement of income and expenditures showed a monthly deficit of $13,000 per month.  He says he has been making ends meet y not paying his income taxes, credit cards, lines of credit and advances from his employer.  He insists that he is currently completely tapped out and on the edge of bankruptcy.

[154]     Mr. C has the charge and the expenses for Y, A and X without any child support from Mrs. B.  The Supreme Court of Canada in the Willick case[27] reminds us that an absolute priority must be given to the alimentary pension for children before the one to be awarded to the parents.

[155]     The Court will reserve the rights of Mrs. B to seek same should circumstances change.

9.         PROVISION FOR LEGAL COSTS

9.1       Position of the parties

[156]     Mrs. B has asked that Mr. C pay her a provision for legal costs of $30,000 plus GST and QST.

[157]     She submits into evidence that she has or will incur some $36,000 to defend her rights in this matter.

[158]     Mr. C asks the Court to dismiss this claim.

9.2       The law

[159]     A provision for legal costs is meant to ensure that the least fortunate of the two parties has the means to be heard without financial constraint.[28]

[160]     According to professor Michel Tétrault, the Court has discretion in such matters:

Elle dépend des circonstances de l’espèce et le Tribunal a discretion en cette matière.  Il ne doit pas être accordée pour encourager et alimenter des procédures abusives et des débats futiles mais elle doit l’être en cas de disproportion des moyens des parties et des besoins réels et justifiés de faire valoir les droits de celui qui réclame des aliments en vue d’une solution juste et équitable du litige.[29]

[161]     The Court of appeal[30] has identified the criteria for granting a provision for costs as being the following:

a)            the nature and importance of the case;

b)            the means of the parties and the degree of disparity between them;

c)            the respective conduct of the parties;

d)            the amount of alimentary support; and

e)            the protection of the children’s rights.

9.3       Analysis and decision

[162]     The Court concludes that Mrs. B’s request for a provision for costs must be refused because there was neither justification nor any particular circumstances that justified her refusal to engage in a civilized discussion with respect to these matters.

[163]     She quite simply has not focussed on what needs to be done in this case until the very last minute.  She did not even bother to obtain her birth certificate.  She made Mr. C wait some two years to respond to his request to find out whether she would sell or keep the family residence while the family’s financial situation was quite critical.

[164]     Mr. C has shown that in his Introductory Motion he requested that the parties submit these issues to a settlement conference as he urgently wanted to settle matters to get the weight of all the debt off his shoulders.

[165]     In February 2013, Mrs. B made a motion to be relieved of her default to file a plea on time and to extend the legal delay to do so.  Her attorney indicated therein that he had been asked by Mrs. B not to continue further proceedings in order not to incur any additional costs.  He also stated that he wanted to explore the issue of settling this matter and of submitting this case to a settlement conference before incurring further costs.

[166]     In response, Madam Justice Nicole-M. Gibeau urged the parties to seek an amicable solution to their litigation by using the services offered by the Superior Court to hold a one day settlement conference.

[167]     Pursuant to the expressed wishes of Mrs. B’s attorney, Mr. C instructed his attorney to transmit to her attorney a request for a settlement conference on February 14, 2013.[31]

[168]     Asked to explain during the hearing why no such conference was ever held, Mrs. B indicated that she had not been made aware of this by her attorney at the time.  She says she should not be penalized because of this.

[169]     With respect, the Court disagrees.  Given the pressing financial needs of the parties, it was incumbent upon Mrs. B to stay on top of these matters and to discuss issues with her attorney or with Mr. C and to attempt settlement discussions, failing which, to proceed to a hearing as expeditiously as possible.  The parties could ill afford the expensive four day hearing that was held.

[170]     Instead, Mrs. B filed two motions to postpone the trial that had to be debated.

[171]     In her first one of March 18, 2014, her attorney indicates that Mrs. B “is presently out of Town B and […] [he] had great difficulty in communicating with her on a regular basis”.  This request was denied by the Honourable Eva Petras on March 21, 2014.

[172]     On the eve of the trial, Mrs. B dismissed her attorney and obtained the services of two new legal counsels.  One of them, a tax law specialist, charged $7,500 to explain to the Court that Mr. C’s tax planning schemes were not legal.

[173]     A further motion to postpone the trial was filed on April 7, 2014.  It was denied by the Honourable Guylène Beaugé on April 8, 2014, the day before the trial.

[174]     The Court considers that Mrs. B’s bad faith refusal to negotiate and/or mediate this matter has been unreasonable and irresponsible.  Negotiations and mediation are essential and vital elements for an effective and costs efficient judicial system.  This bad faith has caused Mr. C to incur significant legal fees of his own.

[175]     As a result, the Court considers that it is an appropriate sanction to deny her request for a provision for costs that she may well otherwise have been entitled to.

10.       EXECUTION NOTWITHSTANDING APPEAL

[176]     Mr. C requests that the present judgement be executory notwithstanding an eventual appeal.

[177]     Provisional execution is an exception to the rule of general application that stipulates that an appeal suspends the execution of a judgement.

[178]     Article 547 C.C.P dictates that the Court has the discretion to order the provisional execution of the whole or a part of a judgement in cases of exceptional urgency or “for any other reason deemed sufficient”, in particular, where the fact of bringing the case to appeal is likely to cause serious or irreparable injury.[32]

[179]     In the current case, there is an urgency to deal with the massive family debt that currently severely impacts the family’s wellbeing.  The Court will, therefore, grant this request.

FOR THESE REASONS, THE COURT:

[180]     GRANTS a divorce between the parties which marriage was solemnized on April 27, 1993 at Town A, in the [Country A], which divorce shall take effect on the 31st day following the date of the present judgement;

[181]     DECLARES that both parties will jointly exercise parental authority over their child X and ORDERS them to consult one and other before taking important decisions regarding him, particularly concerning his health and education;

[182]     GRANTS the sole custody of X to Mr. C;

[183]     DECLARES that the major children Y and A will continue to live with their father under his charge pursuant to the Divorce Act;

[184]     GRANTS Mrs. B access rights to X, to be fixed amicably between the parties and X;

[185]     ORDERS Mrs. B to communicate with Mr. C and obtain his prior written authorization (by email) a minimum of two weeks before arranging any trip that she wishes to take with X;

[186]     ORDERS both parties to promptly react to any request for authorization to travel that may be necessary in order to allow X to travel with one or the other of his parents;

[187]     ACKNOWLEDGES the agreement between the parties that they will have shared custody of X, once Mrs. B resides in an appropriate residence in Town B, so that he will be with his mother for one week, from Friday to the following Friday and will be with his father for one week, from Friday to the following Friday;

[188]     ORDERS the partition of the net value of the assets included in the family patrimony as of February 8, 2012;

[189]     ORDERS that there be an equal partition of the family patrimony;

[190]     DECLARES that the net value of the family patrimony is $1,100,000 (family residence, vehicle, furniture and RRSPs);

[191]     DECLARES that each party has the right to a value of $550,000;

[192]     ACKNOWLEDGES that Mrs. B will continue to be the sole and unique owner of the family residence situated at [Address 2], in Town B, subject to her assuming responsibility for the mortgage and all other expenses related thereto as of the date of this judgement and her obtaining the release of Mr. C from liability with respect to the mortgage and line of credit related thereto;

[193]     DECLARES that the $20,000 worth of furniture will be split as follows: Mrs. B is the sole and unique owner of all the furniture and other movable effects garnishing the family residence with the exception of the following, which shall be remitted to Mr. C within sixty (60) days of the present judgement, namely:

a)            the green cupboard (Mrs. B keeping the blue one);

b)            the dining room table;

c)            the hutch (vaisselier);

d)            the three (3) paintings of Dina Podolski, the painting by Tremblay, the painting by Rousseau, the painting by Breton, the Richard lithograph and half of the still-life reproductions and lithographs;

e)            his personal effects, such as diplomas, green bicycle, sporting equipment, the plates of P… and Mi… (gifts from his brother), etc;

[194]     ORDERS Mrs. B to pay Mr. C, within sixty (60) days of this judgement, the sum of $510,000 representing his portion of the net family patrimony;

[195]     ORDERS Mrs. B to transfer to Mr. C (Form T-2220) the sum of $30,000 from her RRSPs, with interest accrued thereon since February 8, 2012, within thirty (30) days of this judgement, failing which this judgement will enable Mr. C to effectuate the transfer directly with the administrator of the said RRSP;

[196]     ORDERS that the partition of the earnings registered at the Régie des rentes du Québec be established between April 27, 1993 and February 8, 2012;

[197]     DECLARES the partnership of acquests is dissolved as of February 8, 2012;

[198]     DECLARES that there are no acquests that are to be partitioned;

[199]     DECLARES that the debts, totalling $820,967, were incurred for the needs of the family and are to be assumed in the manner hereinafter set out;

[200]     DECLARES that the parties shall each assume half ($75,000 each) of the following common debts within thirty (30) days of receipt by Mr. C of his half of the family patrimony:

a)            RBC line of credit ($100,000);

b)            TD line of credit ($50,000);

[201]     DECLARES that from the balance of $670,967 ($820,967 - $150,000) of the family debts, Mr. C shall assume the following debts, totalling $386,130.06, on his own:

a)            the tax indebtedness registered in his name ($286,130.06);

b)            the loan of [Company D] ($50,000);

c)            the loan from his mother ($50,000);

[202]     DECLARES that from the balance of $670,967 ($820,967 - $150,000) of the family debts, Mrs. B shall assume the following debts, totalling $284,836.99, on her own:

a)            the tax indebtedness registered in her name ($280,836.99);

b)            the line of credit with RBC ($4,000);

[203]     ORDERS Mrs. B to pay Mr. C, the sum of $50,646.53 (paiement égalisateur) of the debts incurred for the needs of the family within sixty (60) days of this judgement;

[204]     ACKNOWLEGES the offer of Mr. C to assume half of the taxes owed by Mrs. B for the years 2011 and 2012 in the event that:

a)            she completes and files her income tax returns for those two years; and

b)            she owes sums to the fiscal authorities for those two (2) years;

and ORDERS him to abide by it;

[205]     ORDERS Mrs. B to pay half of the income taxes owed by Mr. C for the years 2011 and 2012 in the event that he is re-assessed for those two years;

[206]     DECLARES that any condemnations in the present judgement will bear interest and the additional indemnity as of February 8, 2012;

[207]     RESERVES the right of Mr. C to obtain alimentary support for the benefit of the three children that he presently has under his charge;

[208]     DISMISSES the request of Mrs. B for spousal support and a provision for costs;

[209]     RESERVES the right of Mrs. B to seek alimentary support for her benefit;

[210]     DECLARES the present judgement to be executory notwithstanding appeal;

[211]     WITHOUT COSTS.

 

 

__________________________________

Paul Mayer, j.s.c.

 

Mtre. Pascale Nolin

Robinson Sheppard Shapiro, s.e.n.c.r.l.

Attorneys for the Plaintiff

 

Mtre. Orna Hilberger

Mtre. Jacqueline Sanderson

Attorneys for the Defendant

 

Dates of hearing:  April 9th, 10th, 11th,14th and May 2, 2014

 



[1]     As permitted by the Court of Appeal case of Kellogg's Company of Canada v. P.G. du Québec [1978] (C.A.) 258, 259-260, the Court has developed, expanded and revised the oral motives of this Judgement in order to reshape and improve its presentation and comprehension.

[2]     Exhibit P-9.

[3]     Exhibit D-6.

[4]     Exhibit P-4.

[5]     Exhibit D-1 - see email from A who stated that as of May, she planned to live primarily with her mother.

[6]     Exhibit P-11.

[7]     Exhibit P-40.

[8]     R.S.C., 1985, c. 3 (2nd Supp.) - 8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding;

[9]     Id. - 16. […] (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[10]    Exhibit D-1.

[11]    Exhibit D-1.

[12]    Id. - 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.

[13]    825.12  If the information stated in the prescribed form or prescribed documents is contested or incomplete or if the court considers it necessary, it may make good the deficiency and, for instance, establish the income of a parent. In establishing the income of a parent, the court may have regard, among other things, to the assets held by the parent and attribute to those assets the production of such income as it sees fit.

[14]    Michel TÉTRAULT, Droit de la famille, 3rd Ed., Éditions Yvon Blais, Cowansville, 2005, p. 634-638.

[15]    REJB 2005-88554.

[16]    Exhibit P-31.

[17]    Exhibit P-31.

[18]    Exhibit D-8.

[19]    208.  In respect of the property of the minor, the tutor acts as an administrator entrusted with simple administration.

      213.  The tutor, before contracting a substantial loan in relation to the patrimony of the minor, offering property as security, alienating an important piece of family property, an immovable or an enterprise, or demanding the definitive partition of immovables held by the minor in undivided co-ownership, shall obtain the authorization of the tutorship council or, if the property or security is worth more than $25,000, of the court, which seeks the advice of the tutorship council.

      The tutorship council or the court does not allow the loan to be contracted, or property to be alienated by onerous title or offered as security, except where that is necessary to ensure the education and maintenance of the minor, to pay his debts or to maintain the property in good order or safeguard its value. The authorization then indicates the amount and terms and conditions of the loan, the property that may be alienated or offered as security, and sets forth the conditions under which it may be done.

[20]    Exhibit P-39.

[21]    Exhibit P-28.

[22]    Exhibits P-18 and P-39.

[23]    Exhibit P-40.

[24]    Supra note 8, Article 15.2 (4)

[25]    Id., Article 15.2 (5).

[26]    Id., Article 15.2 (6).

[27]    Willick v. Willick, [1994] 3 R.C.S. 670.

[28]    CQLR, c C-1991 - 502. The court may order either spouse to pay support to the other, and a provisional sum to cover the costs of the proceedings.

[29]    Michel TÉTRAULT, supra note 14, p. 250.

[30]    Droit de la famille - 1532, J.E. 98-618 (C.A.).

[31]    Exhibit P-8.

[32]    547.  Notwithstanding appeal, provisional execution applies in respect of all the following matters unless, by a decision giving reasons, execution is suspended by the court:

(a) possessory actions;

(b) liquidation of a succession, or making an inventory;

(c) urgent repairs;

(d) ejectment, when there is no lease or the lease has expired or has been cancelled or annulled;

(e) appointment, removal or replacement of tutors, curators or other administrators of the property of others, or revocation of the mandate given to a mandatary in anticipation of the mandator's incapacity;

(f) accounting;

(g) alimentary pension or allowance or custody of children;

(h) judgments of sequestration;

(i) (subparagraph repealed);

(j) judgments with regard to an improper use of procedure.

In addition, the court may, upon application, order provisional execution in case of exceptional urgency or for any other reason deemed sufficient in particular where the fact of bringing the case to appeal is likely to cause serious or irreparable injury, for the whole or for part only of a judgment.

In the cases provided for in this article, the court may, upon application, make provisional execution conditional upon the furnishing of security.

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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