Respondent R.-C - Cour suprême du Canada

Transcription

File No. 33698
SUPREME COURT OF CANADA
(ON APPEAL FROM A JUDGMENT OF THE QUÉBEC COURT OF APPEAL)
BETWEEN:
R. P.
APPELLANT
(Respondent)
- and R. C.
RESPONDENT
(Appellant)
RESPONDENT’S FACTUM
Mr. Julius H. Grey
Gray, Casgrain
Suite 1715
1155 René-Lévesque Blvd West
Montréal, Québec
H3B 2K8
Mr. Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
Suite 2600
160 Elgin Street
Ottawa, Ontario
K1P 1C3
Tel.: 514 288-6180 ext. 229
Fax: 514 288-8908
[email protected]
Tel.: 613 786-0107
Fax: 613 563-9869
[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-3422-11
-2Mr. Robert Teitelbaum
Suite 1800
1 Wesmount Square
Wesmount, Québec
H3Z 2P9
Mr. Eduard J. Van Bemmel
Gowling Lafleur Henderson LLP
Suite 2600
160 Elgin Street
Ottawa, Ontario
K1P 1C3
Tel.: 514 931-1788 ext. 237
Fax: 514 931-3061
[email protected]
Tel.: 613 786-0210
Fax: 613 788-3500
email
Counsel for the Respondent
Agent for the Respondent
TABLE OF CONTENTS
Page
PART I
–
STATEMENT OF FACTS
......................................... 1
PART II
–
STATEMENT OF QUESTIONS IN ISSUE
......................................... 4
PART III
– STATEMENT OF ARGUMENT
Argument I:
......................................... 5
Does the Respondent who has been paying
alimony for two times longer than the
duration of the union have an ongoing
obligation to continue to do so years after
his retirement?
........................................ 5
Is the Appellant obliged to encroach on
capital?
........................................ 8
Argument III: Where under these circumstances is there
an injustice?
...................................... 15
Respondent’s final comment
submitted by the appellant
...................................... 17
Argument II:
PART IV –
on
the
jurisprudence
ORDER SOUGHT CONCERNING COSTS
....................................... 19
PART V
– ORDER SOUGHT
PART VI
– ALPHABETICAL TABLE OF AUTHORITIES ....................................... 21
PART VII –
....................................... 20
STATUTES, REGULATIONS, RULES
Rules of practice of the Superior Court of Québec in family
matters, c. C-25, r. 9, Rule 28
...................................... 22
-1Respondent’s Factum
Statement of Facts
PART I – STATEMENT OF FACTS
1.
Many of the Appellant’s characterizations under the heading of “THE FACTS” are
inaccurate. This begins with the pretention outlined in paragraph 3 (page 4 of
Appellant’s factum). The Appellant states that the alimentary pension was fixed in
1991 by “consent”. That is not the case. This Court is referred to Appellant’s
Record (hereinafter referred to as A.R., vol. II, p. 28-33). The Consent Agreement
that was signed by the parties related to a Motion to Change Sureties, not the
determination of alimony.
2.
Furthermore, there are many misrepresentations. Contrary to the pretention
outlined in number 11 under the heading “THE FACTS”, it was never established
that the Appellant was “gravely ill” or that she underwent several surgeries. In fact
her testimony in that regard is to be found at page 133 of Volume III of Appellant’s
Record (A.R., vol. III, p. 133) where at trial she stated that she had hip replacement
one month prior and that even at the time of trial she stated “je peux fonctionner
assez normalement”.
3.
The Appellant states in paragraph 5 that when the Respondent retired, he sold his
residence, Appellant going on to state in paragraph 13 that he voluntarily gave his
wife 2/3 of their savings and kept only 1/3. Firstly, it was the Respondent’s wife
who sold the home that was in her name. At no time did the Respondent say that
he gave his wife 2/3 of their savings. What he did say was that she kept 2/3 of the
net proceeds of the sale of the home, that is to say, 16.6% of the sale price that
would have otherwise inured to his benefit in order to equalize their respective net
worths (A.R., vol. III, p. 17).
4.
Statement of Facts
Equally inaccurate is the statement at number 10 (page 5 of Appellant’s factum)
wherein their pretention is that it was never suggested that the Appellant had the
means to make up for the reduction in alimony. The Appellant has been putting
away savings from this alimony for the past 26 years. Has the time not arrived for
her to be using it (A.R., Vol. II, p. 6)?
5.
Furthermore, the Respondent’s argument from the outset was that the Appellant
(who never entertained the possibility of selling her home) do so exactly as the
Respondent and his wife were obliged to do when they closed the doors to their
business in 2006 (A.R., vol. III, p. 16). That is to say that it was no longer
necessary for her to reside alone in an 8-room home with 4 bedrooms and a
two-car garage (A.R., vol. II, p. 107). At the time of trial, Respondent and his wife
were renting an apartment on the 4th floor of a walk-up.
6.
In relation to the allegation that the Respondent alone supports the entirety of the
cost of the household expenses, it is true to say that originally, that was the plan.
Inasmuch as his second wife is 15 years younger than the Respondent, the idea
was for her to build her retirement base. The Respondent anticipated a 7% rate of
return on the $1,000,000 that he accumulated after the sale of the family residence
(A.R., vol. III, p. 17).
7.
At number 24 (page 9 of Appellant’s Factum) Appellant states that it is surprising
that the Court of Appeal did not follow the trial Judge’s findings of fact which
determined that the Respondent could still afford to pay the pension. That
statement is made in a vacuum when one considers the error in law made by the
trial Judge in first instance in refusing to accept that the Appellant’s income or
assets were to be considered when she rendered her Judgment. That is to say the
trial Judge’s findings were based only on having taken into consideration “half the
equation”. More specifically at paragraph 33 of her Judgment (A.R., vol. I, p. 9) the
trial Judge stated: “le tribunal conclut qu’il ne peut s’appuyer sur un changement
Statement of Facts
survenu dans les ressources ou l’actif de l’intimée pour déterminer s’il y a un
changement“.
8.
Clearly the Appellant no longer asserts the premise that her assets or the ability of
those assets to generate income are not to be considered in the equation. That
aspect of the finding of the Court of Appeal that Madame Justice Samoisette erred
in that regard is not raised as a question in dispute by the Appellant.
9.
On page 9 of its factum, Appellant outlines the premise that the Court of Appeal
erred in refusing to allow the Appellant to induce new evidence.
10. Numbers 24-28 of Appellant’s factum (pages 9-10) appears to be an argument.
The argument being that the Court of Appeal erred by refusing to grant the
Appellant permission to adduce new evidence. That request could easily have
been submitted long before the hearing which took place before the Court of
Appeal on the 3rd of December, 2010. Furthermore, at the time of the hearing, the
Court was able to take the necessary judicial cognizance of the state of the
economy at the time that the matter was heard and to also induce that to whatever
degree the economy did rebound, it would have had the same impact on the
Appellant’s assets.
-----------
Statement of Questions in Issue
PART II – STATEMENT OF QUESTIONS IN ISSUE
Does the Respondent who has been paying alimony for 2 times longer than the duration
of the union have an ongoing obligation to continue to do so years after his retirement?
Is the Appellant obliged to encroach on capital?
Where exactly under these circumstances is there an injustice?
----------
Statement of Argument
PART III – STATEMENT OF ARGUMENT
Argument I: Does the Respondent who has been paying alimony for two times longer
than the duration of the union have an ongoing obligation to continue to do
so years after his retirement?
11. As to the manner in which argument 1 is formulated by the Appellant, it is
respectfully submitted that in view of the facts of this particular case, the other
possibility for the formulation of the question is the following:
“Should a man, who has faithfully fulfilled his alimentary
obligations since the time of his departure in 1972 (after having
resided with the Appellant for 14 years), and who continued to
effect payment to his ex-wife into his 70s, years after he was
obliged to close his business and after which time he no longer
had any revenue from employment, be required to continue to
effect payment to an ex-wife who is in her 80s, and the value of
whose assets exceeds those of the Respondent?”
12. At number 32 (page 12) of the Appellant’s Factum, it is stated that:
“it is to be noted that the 1991 agreement specified that any
increase in Respondent’s means should not be a ground to
diminish the pension”.
Respondent reiterates that the Appellant did not contest those findings of the Court
of Appeal in that regard, the Court having found that the Judge in first instance
erred when she determined that the Appellant’s means should not be taken into
consideration and therefore the statement postulated at numbers 32 and 39 of its
Factum should not be considered.
13. The thrust behind Plaintiff’s first argument is that Respondent’s second wife is
being favored over the interest of the first. This premise forms part of their second
argument as well at paragraphs 64 and 65 of their argument (page 21 of
Appellant’s Factum). This is simply inaccurate. Nicole Lachapelle testified that she
has worked throughout her life in common with the Respondent (which life they
shared together since 1973) and that she was working side by side with the
Respondent - six days a week for a ten-year span in their antiques business, until
the doors were closed in 2006 (A.R., vol. III, p. 145).
14. Nicole Lachapelle played a very significant role in the accumulation of the assets
between herself and her husband, buying, renovating and selling homes, the last
home in which they resided for ten years having been purchased in her name and
sold in 2006 (A.R., vol. III, p. 147).
15. Under these circumstances and seeing that his wife is 15 years younger than
himself, the fact that they decided that when she sold the home that was registered
in her name, that as opposed to splitting the net proceeds, that Nicole Lachappelle
would retain 16.6% of what would otherwise have been his interest of the proceeds
of sale in order to equalize the values of their respective net worths, is perfectly
reasonable. Furthermore, after their net worths were equalized, it is true that the
initial game plan was to live only off the revenues of the Respondent but as a result
of the drastic change to his net worth, this objective was not attainable.
16. Equally difficult to absorb is the statement at number 36 (page 13) of Appellant’s
Factum that the effect of the Judgment is of very little benefit to the Respondent,
when one considers that he no longer has an income stream from employment and
he has to continue to pay alimony. What is the basis for this statement? There is
none.
17. In number 51 (page 17 of Appellant’s Factum), the Appellant’s attorney begins its
argument by stating that it will assume (for the sake of that argument), without
conceding, that there has been a diminution of the Respondent’s means. Appellant
then goes on to state that the Respondent never proved that there was a
diminution of his income since it was established by the Court in 1991 (p. 25 to 27
of Appellant’s Factum). Firstly, his income was not “established” in 1991. The 1991
decision by the Court of Appeal was from the decision of Mr. Justice Durand which
was rendered in 1989. Therefore, Judge Maurice Jacques of the Court of Appeal
stated:
“les moyens de l’intimé ne sont pas en litige; il a réclamé avoir
les moyens de payer la pension demandée”.
Secondly, before the Respondent was obliged to retire, on those occasions that the
parties were before the Court of first instance, the Respondent took the position,
for the sake of trial, that his resources were “limitless”. This is to say that he
acknowledged his capacity to pay the amount that was being claimed (Rule 28 of
the rules of practice in family matters). This rule states that a party is not
required to provide all of the detailed financial information necessary on a
statement of revenues and expenses if they acknowledge their capacity to pay
(unless the Court decides otherwise). The effect of exercising that option shortens
the length of the debate that would have otherwise taken place before the Court.
The Appellant is now suggesting that the Respondent should be penalized for
having exercised an option explicitly provided by law (Respondent’s factum
hereinafter referred to as R.F., p. 22). It is very rare indeed in family law that the
debtor of the alimentary obligation reduces the question in dispute to half the
equation in acknowledging the capacity to pay. What the Appellant is now arguing
is that it is specifically because of having exercised that option, that the Court now
has no point of reference in order to ascertain whether or not there has been any
change in circumstance since the Respondent’s retirement. What kind of logic is
that exactly? This is more than “catch 22”. Respondent no longer has any income
from employment! This is the “raison d’être” for the initial motion that is now being
debated here.
18. In the argument at number 87-89, Appellant tries to manipulate the answers to fit
with the questions that were asked. This is disingenuous. It is “slight of hand”.
More specifically, when the Appellant formulated this argument before the Court of
Appeal, it was done so in the following manner:
“62. Respondent had an opportunity to explain if he felt or was
poorer than in 1991; he did not say so even after it was clearly
explained to him why the question was asked;” (A.R., vol. II,
p. 89).
19. If one looks carefully at the exchange between the Respondent and Me Julius
Grey, Respondent was never asked if he felt he was poorer now than he was in
1991. The question that was asked by Appellant’s counsel was whether or not he
remembered what his revenue was in 1991. The Respondent answered the
question asked by saying that he did not know – it was 18 years ago.
20. It is undisputed that he was working and generating an income that was handsome
enough over the years of the marriage that he felt that he could acknowledge his
capacity to pay what was being asked of him. Indeed, when a direct question was
asked to the Respondent about his present capacity to pay, he clearly answered
that he was unable to do so (A.R., vol. III, p. 5).
21. The Respondent was obliged to close the doors to his business. He was no longer
in a position to continue to pay alimony. That being the case, what is the basis for
the statement made in paragraph 54 regarding the Respondent’s evident ability to
continue to pay that support?
Argument II: Is the Appellant obliged to encroach on capital?
22. Appellant’s argument has also been reformulated (from the first Appeal) to now ask
if she is “forced to use” her capital when the payment of the pension is “not
impossible” for her ex-husband. Once again, the question iterated is difficult to
absorb.
23. Although the jurisprudential pendulum may have swung far to the right in relation to
the ongoing obligation of support since the first decisions that were rendered by
the Superior Court following the Divorce Act of 1985, it is respectfully submitted
that in a situation such as the one in the present instance, when considering all of
the objectives of the Divorce Act, including the duration of the marriage, the
duration for which the alimentary support was paid, the fact that the Respondent
was obliged to close the doors of his business in 2006, not having generated any
income from employment thereafter and continued to pay alimony for the next
three years, he is entitled to retire with peace of mind and without an ongoing
obligation to pay an ex-wife who has reached the age of 81.
24. The Judgment in separation as to bed and board between the parties was
rendered 16 years after the marriage was celebrated and the alimentary pension
was paid faithfully for a period in excess of 34 years.
25. At the time of the legal separation of the parties in 1974, the Appellant was left with
the entirety of the family residence in Beaconsfield described by Mr. Justice
Durand as an eight-room home, four bedrooms and a two-car garage (page 5 of
the Honorable Mr. Justice Rolland Durand’s Judgment of the 23rd of January 1989)
(A.R., vol. II, p. 6). The Respondent maintained ownership of the sums
accumulated in his RRSP together with a 1968 Airstream Caravan and shares of
the company Data Repro Com (A.R., vol. IV, p. 111).
26. When the parties were before Mr. Justice Rolland Durand in 1989, the Appellant’s
assets consisted of the family residence as well as an RRSP with a value of
$29,000.
- 10 Respondent’s Factum
27. Mr. Justice Durand commented on the fact that she was living alone in that home
in Beaconsfield. In his decision, he also took note of the fact that she was able to
save $30,000 in the five years preceding his judgment (A.R., vol. II, p. 6).
28. Much more significant are those changes that occurred between the Judgment of
Mr. Justice Durand up to the present day. When the parties were before
Mme Justice Lamelin on the 3rd of August, 2005 on the Respondent’s motion to
change sureties, Mme Justice Lamelin mentioned that the income of the Appellant
was $4,129.05 a month whereas her monthly expenses were $2,462.93. She had
a net worth of $451,298.17 of which $350,000 was the amount that she claimed to
be the value of her residence. Her other investments amounted to $70,415.03
(A.R., vol. II, p. 43, 44). By the time the parties were before Mme. Justice
Samoisette, she had managed to accumulate another $140,000 (Appellant’s
statements of revenues and expenses of March 11, 2005 and November 10, 2008)
(A.R., vol. II, p. 37 and vol. II, p. 56). In view of this proof which emanates from the
Appellant herself, what is the basis for the statements outlined on page 24 of
Appellant’s argument, namely:
“Respondent never explained how the alleged saving was made
or was even mathematically possible;
It was not right to rely on such speculations to remove the
pension”.
29. In view of all of this, while the Respondent and his wife are renting an apartment,
the Appellant has never even considered placing her home on the open market for
sale (A.R., vol. III, p. 53). How is it that the home that was registered in the name
of the Respondent’s present wife had to be sold while the creditor of the alimentary
support does not consider placing her home on the open market for sale, expecting
all the while the Respondent to deplete his capital in order to continue paying
alimony long after the age of retirement at a time when he no longer has any
income stream from employment?
30. Allowing this state of affairs to continue is literally condemning the Respondent to
the payment of alimony for the benefit of the heirs of the alimentary creditor. This is
certainly not the purpose of alimony. Furthermore, in Boston v. Boston, this Court
has already envisaged this exact scenario:
“Each case depends on its own facts. Generally, the payee
spouse would not be expected to sell or leave the matrimonial
home, particularly if there are dependent children. However, in
cases where the support order is based mostly on need as
opposed to compensation, different considerations apply. It is
not impossible to envisage circumstances where the value of
the family home has become disproportionate to the means of
the parties so that equity requires that it be sold and replaced
appropriately. Such considerations do not arise in this appeal as
the support agreement was mainly compensatory”.
(ATTORNEY’S UNDERLINING).
Boston v. Boston (2001) SCC 43, Appellant’s Book of
Authorities, vol. I, p. 13.
31. It is only just and equitable that when an individual reaches the age of retirement, it
is necessary to commence encroaching on capital. In the decision rendred by
Mr. Justice Durand in 1989, he made reference to another judgment of Perreault v.
Sauvageau and in particular Mme Justice Zerbisias who stated:
“The right to support does not exist indefinitely. Marriage does
not create a right to a life rent or annuity to spousal support for
a former spouse at the expense and burden of the other.” (A.R.,
vol. II, p. 7):
Respondent refers to a decision in the matter of L. (R.) c. F. (J.), decision of 19th of
August 2003 wherein Mme Justice Pierrette Rayle stated: (Respondent’s Book of
Authorities, Tab 3, p. 25-26)
“19. Le fait de se prévaloir d’un droit à la retraite anticipée n’a
donc en soi, rien d’illégitime. Il faut plutôt, en des circonstances
normales, y voir un souci de repos bien mérité après de
longues années de service. Ainsi, dans le cas présent, et avec
égards pour l’opinion contraire, je ne vois pas de contradiction
entre le témoignage de l’appelant qu’il aspirait « depuis
toujours » à se retirer vers l’âge de 60 ans, d’une part et,
d’autre part, le fait que ce bénéfice n’ait été acquis à la table
des négociations qu’en 1999. Les aspirations de l’appelant
correspondent à un schème de valeurs personnelles qui existe
peu importe que l’individu sache, au moment où il exprime
telles aspirations, si elles pourront un jour se réaliser.
20. Le juge de première instance a vu dans la démarche de
l’appelant un geste irresponsable à cause du fait que, ce
faisant, il diminuerait ses ressources disponibles pour le
paiement de la pension alimentaire due à son ex-conjointe, dont
le taux a été fixé pendant ses années actives.
21. Avec égards, je ne suis pas de cet avis.
22. Rien dans l’institution du mariage ou dans la loi sur le
divorce qui en prolonge, en certaines conditions, l’obligation
inhérente de soutien, ne permet de conclure que l’un des
conjoints est au service de l’autre. L’intimée ne peut donc pas
exiger un soutien indéfini de l’appelant, tant que celui-ci est
capable de travailler et sans contribution de sa part, par le fruit
de son travail, si minime soit-il, ou de ses avoirs.
23. Tout être humain a l’obligation première de contribuer à sa
propre subsistance, de faire fructifier ses talents et moyens,
quels qu’ils soient. Cette obligation n’est en rien diminuée
pendant le mariage où chacun l’assumera en remplissant la
fonction et le rôle que le couple attend de ce partenaire.
25. Cette obligation n’est pas amoindrie par la prononciation
d’un jugement de divorce. Dans le célèbre arrêt Moge c. Moge,
avant d’analyser les tenants et aboutissants de l’obligation
alimentaire entre époux ou ex-époux en vertu de la Loi sur le
divorce, madame L’Heureux-Dubé rappelait que l’octroi d’une
ordonnance alimentaire demeure subordonnée à une première
obligation, celle de tout être humain de s’aider. […]
26. Si un conjoint a besoin d’assistance, l’autre devra, dans la
mesure de ses moyens, la lui fournir mais le sort de celui qui
fait vivre les deux ex-conjoints ne peut pas être dicté
uniquement par les impératifs de l’autre. Il en irait différemment
de l’obligation des parents à l’égard de leurs enfants mineurs.
27. Arrivée à la soixantaine, il n’est pas rare qu’une personne
toujours apte à travailler, quitte son emploi traditionnel pour
réorienter ses énergies vers d’autres activités rémunérées ou
non. Dans un couple, cette décision sera généralement prise
par les deux conjoints qui feront les ajustements nécessaires à
leur niveau de vie en fonction des revenus de retraite
disponibles.
28. Lorsque ne subsiste que l’obligation alimentaire, sans
l’entraide et le compagnonnage que procure la vie commune, il
incombera au tribunal de s’assurer que la démarche du débiteur
alimentaire n’est pas imprégnée de mauvaise foi et que, si elle
est impromptue, sa décision ne laisse pas le créancier
alimentaire dans une situation fâcheuse. Chaque cas en sera
un d’espèce qui devra être examiné en regard des
circonstances propres non seulement au créancier alimentaire,
ce que le premier juge a fait dans le cas présent, mais
également en regard des circonstances et aspiration légitimes
du débiteur alimentaire. Celui-ci doit être présumé comme étant
de bonne foi. Il ne doit pas être condamné à continuer à
travailler uniquement parce qu’il est capable de le faire pendant
quelques années encore.
29. Ainsi, le tribunal devra rechercher à l’aide de divers indice,
certains objectifs, d’autres subjectifs, si sa décision est motivée
par le désir d’esquiver ses obligations familiales ou légales.
30. Je vois une différence énorme entre la situation de celui qui
prend une retraite anticipée, après de longues années de vie
active sur le marché du travail pendant lesquelles il a assumé
fidèlement ses responsabilités, et celle du travailleur qui
abandonne prématurément un emploi rémunérateur, sur un
coup de tête, et sans égard à ses obligations familiales ou en
dépit de celles-ci.”
32. The Respondent refers to certain other decisions. A decision rendered by the
Honourable Mme Justice Alisa Soldevila of the 15th of March 2007 (Droit de la
famille 07723) (Respondent’s Book of Authorities, Tab 1, p. 8). In that case the
creditor of alimentary support was able to accumulate substantial savings from the
alimony that was paid to her over the years. Regarding the alimentary creditor,
madame Justice Soldevila stated:
“a donc l’obligation d’utiliser maintenant pour combler ses
besoins en raison du fait que les deux parties ont atteint l’âge
de la retraite.”
It is to be noted that in that case (Droit de la famille 07723) the creditor of support
was 65 years of age whereas the Appellant is 81 years of age. All the more reason
for her to be obliged to encroach upon her capital. In that decision Madam Justice
Soldevila quoted the case of Boston -vs- Boston and more particularly at
paragraph 59:
“Il est généralement inéquitable de permettre au conjoint
bénéficiaire de tirer avantage de la pension de retraite à la fois
comme un bien et par la suite comme une source de revenu.
C’est particulièrement vrai quand le conjoint bénéficiaire reçoit
des biens en capital qu’elle conserve ensuite pour augmenter
son patrimoine.” (Respondent’s Book of Authorities, Tab 1, p. 8)
33. In the case of Droit de la famille 2886, a judgement, the alimentary debtor was 67
years of age, had been paying support for 20 years and the creditor of support had
reached the age of 71. The debtor was in a much more advantageous position
financially that was his ex-wife. He had a net worth of $439,000 while she had a
net worth of approximately $260,000. In that instance, Mr. Justice Sénécal stated:
“Cela nous amène au point suivant. Le tribunal est d’avis que,
dans le présent cas, il y a lieu effectivement de tenir compte du
fait qu’au stade de sa vie où elle est rendue (65 – not 81!)
madame doit maintenant puiser dans son capital pour ses
besoins.” (Respondent’s Book of Authorities, Tab 2, p. 17)
Mr. Justice Sénécal stated in his summary at page 6 and 7: (Respondent’s Book
of Authorities, Tab 2, p. 17-18)
“… qu’à partir d’un certain âge ou à un certain stade de la vie,
le créancier alimentaire peut se voir appelé à puiser dans son
capital pour subvenir à ses besoins, précisément parce que ce
capital a été constitué pour sa sécurité pour ses vieux jours.
Quand les vieux jours arrivent, cela signifie que le temps de
puiser dans son capital arrive aussi.”
Judge Sénécal went on to state on page 8: (Respondent’s Book of Authorities,
Tab 2, p. 19)
“D’ailleurs même les autorités fiscales reconnaissent que ce
moment est arrivé puisqu’elles obligent madame, à 71 ans, à
commercer à sortir de l’argent de son régime d’épargne retraite.
Ce qui est vrai des sommes placées dans le Reer vaut pour le
reste du capital.”
Argument III: Where under these circumstances is there an injustice?
34. In paragraphs 7 to 9 of the Respondent’s factum, he has addressed the issues
raised on pages 25 to 27 of the Appellant’s argument.
35. In relation to its other arguments under this heading, the Respondent finds it
exceedingly curious indeed that the Appellant is insinuating that Mr. Justice
Dalfond, who was presented with the Appellant’s Motion to Suspend Provisional
Execution, would have been in a better position to adjudicate on the entire issue of
support than was the full bench many months later, who by then, had the benefit of
the entire Factum with all of the proceedings and exhibits, read the entirety of the
arguments and thoroughly questions both attorneys. At number 80 of the
Appellant’s Factum, it is argued that Mr. Justice Dalfond “increased the alimentary
payments to $2,000 per month… because… the transition would be needed”.
36. Let us look carefully at what it was exactly that transpired in the brief minutes
during which the attorneys appeared before Mr. Justice Dalfond. As mentioned, the
Appellant presented a Motion for Suspension of Provisional Execution.
Respondent argued before Mr. Justice Dalfond that Madame was able to
accumulate $120,000 between 2005 and 2008. Mr. Justice Dalfond did not have
the benefit of taking cognizance of the dossier nor any of the exhibits and thus, he
was obliged to rely on the representations of counsel to respond to his questions.
When he asked counsel for the Appellant if it was accurate that she was able to
save $120,000, counsel for the Appellant suggested that it was not accurate (A.R.,
vol. III, p. 157), more particularly:
« HONORABLE JUGE PIERRE J. DALPHOND
LA COUR :
Mais est-ce que c’est… est-il exact qu’elle ait mis cent
vingt mille dollars de côté…
Me JULIUS H. GREY
Non
LA COUR
… depuis trois (3) ans?
Me JULIUS H. GREY
Non Votre Seigneurie. Ça c’était une erreur de la
part…Elle… elle dit…C’est exact qu’elle avait fait une
erreur sur combien elle avait. Faites… Faites le calcul
Votre Seigneurie. Il aurait été impossible de mettre ce
montant-là. Elle a des… Son argent, elle la garde une
partie dans les comptes en banque. Si elle avait tout mis,
elle n’aurait pas augmenté. C’est faux.
C’est tout simplement une tentative avec une ténacité
remarquable, mon confrère prétend qu’elle a sauvé tout
cet argent-là. »
37. In view of those representations by Appellant’s counsel to a judge of the Court of
Appeal who had no file before him (representations that lasted minutes), this now
appears to be the platform on which Appellant’s attorney bolsters its argument
before the Supreme Court of Canada. It is respectfully submitted that there is
something disingenuous about all of this.
RESPONDENT’S FINAL COMMENT ON THE JURISPRUDENCE SUBMITTED BY
THE APPELLANT
38. Appellant referred to Scott v. Scott. Where is the analogy? Firstly, what is the age
of the husband and wife in this case? Secondly, the husband only began paying
spousal support on the 30th of April 2006 and the parties were separated after
27 years of marriage. As is stated in that case
“it has been many years since the separation. Ms. Scott has
taken great steps towards self-sufficiency. However, she should
not be forced at this early stage to encroach on her capital”.
The operative words are “at this early stage”. Firstly, in that case, the husband
continued to derive employment income for the foreseeable future. Secondly, at
paragraph 56 of that judgment it states that the wife shouldn’t have to encroach on
capital which is set aside for retirement. Clearly, after the Appellant has reached
the age of 81, the notion of the “retirement threshold” has been reached.
39. In the case of Walsh v. Walsh, the first decision was rendered in 2007 and the
second decision, which is the object of the appeal rendered on the 4th of February
2009. The parties are 51 and 53 years of age and Mr. Walsh generated $100,000
in 2008 and $115,000 employment income in 2009. How is this case analogous in
any way to the case before this Court? Similarly in the case of Krane vs Krane. In
that case at page 175 (volume I, page 175 of Appellant’s Book of Authorities)
Appellant curiously highlights paragraph 24. It is stated that Mr. Krane, who is
gainfully employed, maintained his ability to meet his expenses while continuing to
acquire rental properties as he also enjoyed a sizeable increase in employment
income since the date of the original order (earning $89,000 in 2006). How is this
case analogous to the case before this Court?
40. In conclusion, Respondent can safely say that for the first time in this argument,
they wholeheartedly agree with the reference that has been made by the
Appellant. Firstly, in the case of Reilly, the parties were divorced after 33 years of
marriage and Mr. Reilly was paying alimony for 16 of those years. In this decision
(Reilly v. Reilly, [2010] BCSC 543, tab 15, volume II of Appellant’s Book of
Authorities and page 127, paragraph 24) it states that Mrs. Reilly’s financial picture
is greatly improved since the last quarter. But she continues to live in the same
residence with no associated mortgage and her residence has significantly risen in
value. It is respectfully submitted that the operative paragraph of this decision that
is provided by the Appellant is number 28 which reads as follows
“While I appreciate Mrs. Reilly’s desire to maintain the status
quo, that is not fair or proper result. Mr. Reilly’s estate should
not be depleted while Mrs. Reilly’s continues to grow. If Mrs.
Reilly wishes to remain in her home, she has options by which
she can generate income. These include rental of the basement
suite, a reverse mortgage and possible deferral of her property
taxes. Alternatively, she could sell her home and invest the
proceeds.”
Mr. Reilly succeeded in his application. Spousal support was terminated on
July 1st, 2010.
-----------
Order Sought Concerning Costs
PART IV – ORDER SOUGHT CONCERNING COSTS
41. Respondent submits that the Appellant is in a better financial position than is he.
Her net worth is not only greater than his, but it is significant to mention that
whether it was her statement of revenues and expenses of March 2005 or that of
November 2008, she always took an old municipal evaluation for her home at
$350,000 (A.R., vol. II, p. 37 and 56). Not only is the figure highly inaccurate but
surely, if she liquidates this most significant asset, she is in a far better financial
position than the Respondent and should be ordered to absorb the costs of this
Appeal that was launched.
-----------
Order Sought
PART V – ORDER SOUGHT
Respondent asks that the judgment of the Court of Appeal be maintained.
Montreal, this March 22, 2011
Teitelbaum Librati
(Mr. Robert Teitelbaum)
Respondent’s Attorney
Alphabetical Table of Authorities
PART VI – ALPHABETICAL TABLE OF AUTHORITIES
Jurisprudence
Paragraph(s)
Boston v. Boston, [2001] 2 S.C.R 413
.................................... 30,32
Krane v. Krane, [2010] ONSC 1488
......................................... 39
Droit de la famille – 07723, 2007 QCCS 1559
......................................... 32
Droit de la famille – 2886, (1998) R.D.F. 56
L.(R). v. F.(J.), 2003 CanLII 47985 (QC C.A.)
......................................... 31
Perreault v. Sauvageau, C.S.M. 500-12-080451-788,
jugement inédit, 2 mars 1988
......................................... 31
Reilly v. Reilly, [2010] BCSC 543
......................................... 40
Scott v. Scott, 2010 MBQB 139
......................................... 38
Walsh v. Walsh, (2010) BCCS 1362
......................................... 39
PART VII
STATUTES, REGULATIONS, RULES
- 22 Rules of practice of the Superior Court of Québec in family matters, c. C-25, r. 9, Rule 28
© Éditeur officiel du Québec
Ce document n'a pas de valeur officielle.
À jour au 1er février 2011
c. C-25, r. 9
Règlement de procédure en matière familiale
Code de procédure civile
(L.R.Q., c. C-25, a. 47)
28. Admission de la capacité de payer. La partie qui admet, dans le formulaire III, sa
capacité de payer les sommes demandées par la partie adverse n'a pas à fournir les
détails de sa situation financière, à moins que le juge n'en décide autrement.
R.R.Q., 1981, c. C-25, r. 9, règle 21; Décision, 84-10-19, a. 3; Décision, 86-02-28, a. 10;
Décision, 94-06-23, a. 25; Décision, 98-10-16, a. 2.
© Éditeur officiel du Québec
This document has no official status.
Updated to 1 February 2011
c. C-25, r. 9
Rules of practice of the Superior Court of Québec in family matters
Code of Civil Procedure
(R.S.Q., c. C-25, a. 47)
28. Admission of ability to pay: A party that acknowledge in Form III being able to
pay the amounts claimed by the other party is not required to provide a detailed
financial statement, unless the Judge decides otherwise.
R.R.Q., 1981, c. C-25, r. 9, Rule 21; Decision, 84-10-19, s. 3; Decision, 86-02-28, s. 10;
Decision, 94-06-23, s. 25; Decision, 98-10-16, s. 2.

Respondent R.-C - Cour suprême du Canada

Transcription

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