Jugements à Montréal

COUR SUPÉRIEURE (Chambre de la famille)

CANADA

PROVINCE DE QUÉBEC

DISTRICT de Laval


 

DATE :  4 janvier 2018

EN PRÉSENCE DE : STEPHEN W. HAMILTON, J.C.S.

(Droit de la famille - 182)
P. C. 
Partie demanderesse 
c. 
A. G. 
Partie défenderesse

OVERVIEW

[1]           The main issues in this matter are the recognition in Québec of a divorce obtained by default in Abu Dhabi and the reduction of child support payable by the father because of the cost to him of exercising his access rights in Australia.

CONTEXT

[2]           The parties were married on November 23, 2008 in Abu Dhabi.[1] They did not sign a marriage contract. The father is Canadian, from Mission, British Columbia,[2] and the mother is Australian.[3] Both were domiciled in Abu Dhabi at the time of the marriage.

[3]           Their daughter X was born in Australia on [...], 2011.[4] She is now 6 years old.

[4]           The parties separated in January 2011. The father attended X’s birth in Australia and the parties attempted a reconciliation in Abu Dhabi in October or November 2011, but it lasted only one month.

[5]           The father left Abu Dhabi in April 2013. He told the mother that he could be reached at his parents’ address in Mission, B.C.[5]He moved to City A for a new job in July 2013.

[6]           On May 1, 2013, the mother filed a divorce application in Abu Dhabi. She was authorized to serve the father through the newspapers because she stated that she did not know his address abroad. He did not appear and the matter proceeded by default. Judgment was rendered on May 5, 2014.[6] The father was advised of the proceedings only after judgment was rendered.

[7]           The father instituted divorce proceedings in Québec on July 29, 2015. He requested the following:

•        That the mother have custody of X;

•        That he have the following access rights: (1) by Skype weekly and on other special occasions, (2) in Australia for 10 days once a year, with no overnights and the mother present on the first four days, and (3) in British Columbia every second year at Christmas;

•        That he pay child support of $1,005 per month, in accordance with the Federal Child Support Guidelines[7] for Québec residents, indexed annually; and

•        That he be authorized to sign alone applications for Canadian citizenship and a Canadian passport for X.

[8]           The wife appeared through an attorney and the parties agreed on September 28, 2015 to the following provisional measures :

•        The mother continues to have sole custody;

•        The father has access by Skype and at other times as agreed on an amicable basis;

•        The father pays $1,008.27 per month child support and $12,099.24 in arrears, calculated in accordance with the Federal Guidelines for Québec residents; and

•        The mother signs the application for Canadian citizenship.

[9]           The father paid the arrears and has paid child support in full and on a regular basis since that time.[8]

[10]        The mother moved to Australia in January 2016.

[11]        The father amended the Québec application on July 19, 2016 to add a request that he have access at his residence for two months during X’s summer vacation. On July 26, 2016, the father requested that the present matter be set down for trial.

[12]        On August 5, 2016, the mother’s attorneys ceased representing her in the Québec proceedings. On August 30, 2016, the mother filed an Initiating Application in Australia in which she sought:

•        That she have sole parental responsibility for X;

•        That X live with her;

•        That the father have access by mutual agreement; and

•        That each party be restrained from removing X from Australia and that X’s name be placed on the Family Law Watchlist in force at all points of arrival and departure in Australia.[9]

[13]        In April 2017, the father visited X in Australia and spent eight days with her.

[14]        The father moved from Québec back to Mission, B.C. in May 2017 to take up a new job with [Company A].[10] That job requires him to work in Moses Lake, Washington.

[15]        On May 12, 2017, the father served on the mother by email, as authorized by the court, (1) a notice that she appoint a new attorney or file a notice that she is representing herself and (2) the notice of the calling of the provisional roll scheduled for May 25, 2017. The mother did not appoint a new attorney or file a notice that she was representing herself, and she did not attend the calling of the roll. The matter was set down for December 8, 2017.

[16]        On November 17, 2017, the father re-amended his application for divorce. He removed all conclusions relating to custody and access and asked the court to decline jurisdiction on these issues in favour of the Australian courts. He asked that child support be increased to reflect his current salary and his B.C. residence and then reduced by $5,000 given the cost of exercising his access rights in Australia. Finally, he removed the request for authorization to sign for a Canadian passport for X. He sent the re-amended application to the mother by email even though she was in default to appoint a new attorney or file a notice that she was representing herself.

[17]        The mother was not present on December 8, 2017 and the matter proceeded by default.

ISSUES IN DISPUTE

[18]        The Court must decide the following issues:

1.   Does the Court have jurisdiction to issue a divorce judgment given that (1) a divorce judgment was pronounced by the court in Abu Dhabi, (2) the father is domiciled in British Columbia and the mother is domiciled in Australia and (3) the mother has instituted proceedings in Australia?

2.   What orders should the Court issue with respect to property matters?

3.   Should the Court reduce the child support otherwise payable because of the cost of exercising access rights in Australia?

4.   Should the Court make an order with respect to the signature of the application for Canadian citizenship for X?

ANALYSIS

1.   Jurisdiction

[19]        Three issues arise with respect to the jurisdiction of the Court:

•        Should the Court recognize the Abu Dhabi judgment? If the Court recognizes the Abu Dhabi judgment, it does not have jurisdiction to divorce the parties again;

•        Does the Court have jurisdiction when one party is domiciled in Australia and the other in British Columbia?

•        What is the impact of the parallel proceedings in Australia?

a.   Recognition of the Abu Dhabi judgment

[20]        The court in Abu Dhabi rendered a judgment on May 5, 2014 in which it pronounced the divorce of the parties.[11]

[21]        Section 22 of the Divorce Act[12] determines when a Canadian court recognizes a foreign divorce:

22 (1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

[Emphasis added]

[22]        The jurisdiction rule set out in Section 22(1) is met: the mother was ordinarily resident in Abu Dhabi for at least one year prior to May 1, 2013.

[23]        Section 22(3) incorporates by reference the general rules on the recognition of foreign judgments other than rules on jurisdiction. In Québec, this means the rules set out in Article 3155 of the Civil Code of Québec:

3155. A decision rendered outside Québec is recognized and, where applicable, declared enforceable by the Québec authority, except in the following cases:

(1)  the authority of the State where the decision was rendered had no jurisdiction under the provisions of this Title;

(2)  the decision, at the place where it was rendered, is subject to an ordinary remedy or is not final or enforceable;

(3)  the decision was rendered in contravention of the fundamental principles of procedure;

(4)  a dispute between the same parties, based on the same facts and having the same subject has given rise to a decision rendered in Québec, whether or not it has become final, is pending before a Québec authority, first seized of the dispute, or has been decided in a third State and the decision meets the conditions necessary for it to be recognized in Québec;

(5)  the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations;

(6)  the decision enforces obligations arising from the taxation laws of a foreign State.

[Emphasis added]

[24]        The issue in the present matter is whether the Abu Dhabi judgment “was rendered in contravention of the fundamental principles of procedure”.

[25]        The Abu Dhabi application was served on the father through the newspapers. He did not appear and the matter proceeded by default in his absence. He testified that the proceedings did not come to his attention until after judgment was rendered.

[26]        Service in the newspapers was authorized because the father “is outside the state as of 09/04/2013” and the mother “does not know his destination”.[13]

[27]        The father produced correspondence by email with the mother between March 24, 2013 and April 14, 2013.[14] They remained in contact by email after May 1, 2013.[15] The mother clearly knew his email address and he told her that she could use his parents’ address as his mailing address.

[28]        In these circumstances, it was highly inappropriate for the mother to serve him in the newspapers and to proceed by default. She misled the court in Abu Dhabi by saying that she did not know his destination. She knew how to reach him and could easily have done so, but she chose not to.

[29]        As a result, he was deprived of the opportunity to contest the Abu Dhabi proceedings. This is a clear breach of audi alteram partem, which is a fundamental principle of procedure.

[30]        The Abu Dhabi judgment therefore is not recognized in Québec.[16]

b.   Domicile of the parties

[31]        At the time of the hearing, the father was domiciled in British Columbia and the mother was domiciled in Australia.

[32]        However, under Section 3(1) of the Divorce Act, the relevant date for assessing the jurisdiction of the Court is not the date of the hearing but rather the date of commencement of the proceeding:

3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.[17]

[Emphasis added]

[33]        When the proceedings were commenced in Québec on July 29, 2015, the father was domiciled in Québec and had been domiciled in Québec for over two years. This is sufficient to give the Québec courts jurisdiction with respect to the divorce. The fact that the father moved to British Columbia before the trial is not relevant.

c.   Proceedings in Australia

[34]        After the institution of the Québec proceedings, the mother instituted proceedings in Australia.[18]

[35]        The Australian proceedings deal only with the issues of custody and access.

[36]        The father amended the Québec application to remove all conclusions relating to custody and access and asked the Court to decline jurisdiction on these issues in favour of the Australian courts. Both Section 6 of the Divorce Act and Article 3142 C.C.Q. provide that custody issues should be resolved by the court where the child is domiciled. The Court will therefore give effect to the father’s request and decline jurisdiction in favour of the Australian courts on any matters related to custody or access.

[37]        Given that the Australian proceedings deal only with custody and access matters and that the present proceedings do not deal with those matters, there is no lis pendens.

d.   Conclusion

[38]        As a result of all of the foregoing, the Court concludes that it has jurisdiction to pronounce a divorce in this matter and to deal with the property issues and the question of child support.

[39]        Further, the mother clearly aware of the present proceedings. She initially appeared through attorneys in Québec and entered into an agreement on provisional measures, she produced as an exhibit in support of her proceedings in Australia the amended application that was served on her attorneys on July 26, 2016 shortly before they ceased representing her, and the re-amended application was sent to her on November 24, 2017 at an email address that she used as recently as April 18, 2017.[19] She never contested the jurisdiction of the Québec courts and did not attend the hearing on December 8, 2017 to contest the conclusions requested by the father.

[40]        On the merits of the divorce, given that the Court has jurisdiction and that the parties have been separated for over six years with no possibility of reconciliation, the Court will pronounce the divorce.

2.   Property issues

[41]        The parties were domiciled in Abu Dhabi at the time of their marriage and there was no marriage contract. Their matrimonial regime is therefore the legal regime under the law of Abu Dhabi.[20]

[42]        The father filed a legal opinion issued by Al Rowaad, a law firm licensed to practice law before the courts of the United Arab Emirates, which include Abu Dhabi.[21] The law firm states its opinion that “independent assets and liabilities of either spouse shall remain independent.” This is equivalent to the regime of separation as to property under Québec law.

[43]        Further, the family patrimony under Articles 414 and following C.C.Q. only applies if the spouses are domiciled in Québec, if their common residence or last common residence is Québec, or if the marriage was solemnized in Québec.[22] None of these apply in the present matter. As a result, the rules on the family patrimony do not apply.

[44]        The father testified that the parties rented an apartment during the marriage and did not own any immoveable property. When he left the parties’ common residence in 2011, all that he took with him were his clothes. He left everything else for the mother and he makes no claim for anything now. He testified that he purchased a vehicle for the mother after the separation and that he makes no claim with respect to that vehicle. He testified that there were no joint bank accounts.

[45]        As a result, the Court will declare that each party remains the sole and absolute owner of all property, moveable and immoveable, registered in his or her name or in his or her possession.

3.   Child support

[46]        The father is currently paying child support in the amount of $1,034.66 per month. This is the amount of $1,008.27 fixed by the parties by consent on September 28, 2015 based on the father’s then salary of $120,453.90 and the application of the Federal Guidelinesto a resident of Québec, as indexed annually.

[47]        In May 2017, the father moved to British Columbia for a new job with a salary of approximately $145,000.[23] Based on the Federal Guidelines, he should be paying $1,284 per month.

[48]        The father asks the Court to use its discretion to reduce that amount given that it cost him at least $5,179 to exercise his access rights in Australia in March and April 2017,[24] and that it will likely cost him a similar amount each year.

[49]        Section 10 of the Federal Guidelines provides in part as follows:

10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

 (2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

(b) the spouse has unusually high expenses in relation to exercising access to a child;

...

 (3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

[Emphasis added]

[50]        The Court is satisfied that the father has unusually high expenses in relation to exercising access to X.

[51]        However, that is not sufficient to justify a reduction in child support. Section 10 of the Federal Guidelines requires two additional elements:

1.   The father must prove that, given his income and his expenses, he would “suffer undue hardship” if he paid full child support;[25] and

2.   The Court must dismiss the application if the household of the father, after paying full child support, would have a higher standard of living than the household of the mother.

[52]        The burden is on the father to prove undue hardship.

[53]        He is earning $145,000 per year. However, he testified that his living expenses in British Columbia are unusually high:

•        He commutes between Mission, B.C. and Moses Lake, Washington, for his work, and he maintains a second apartment in Moses Lake, Washington at a cost of $1,500 per month; and

•        He travels back to City B once a month to visit his girlfriend.

[54]        Because he had to move to British Columbia to earn the salary on which the child support payments are based, it is appropriate to consider those additional expenses in fixing child support.

[55]        Further, he testified that he is incurring legal expenses defending the proceedings taken by the mother in Australia. He testified that those legal expenses are double what he is paying in the present proceedings.

[56]        He testified that it is difficult for him to save any money, in particular in a trust account he has set up for X. He said that he feels like he is sliding backwards instead of moving ahead.

[57]        The Court is satisfied that given all of the circumstances, the additional amount of $5,000 to exercise his access rights results in an undue hardship.

[58]        The second issue involves comparing the standards of living of the father and the mother. The proof on this issue is very limited, given the mother’s absence in court and the lack of cooperation and communication between the parties. The father testified that the mother has a master’s degree in education and that he believes that she is working full-time, but he does not know where she is working or how much she is earning. She did not disclose her residential address on the Australian proceedings. When he visited X in Australia, he was not invited to see where she is living. Based on what he has seen in their Skype calls, he believes that she is living in a two storey gated house. Her playroom is loaded full of toys. X is attending a private school with a tuition of $4,500 per year.

[59]        As a result, the Court has some evidence that the mother is living comfortably, but not enough evidence to conclude which household has a higher standard of living. In those circumstances, it cannot form “the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.” If the mother had contested the application and had presented evidence, the Court might have come to a different conclusion.

[60]        The Court therefore has the discretion to reduce the child support payments from $1,284 per month. The father asks the Court to reduce child support by $5,000 per year or $416.67 per month, which would reduce child support below the current level of $1,034.66 per month. The Court is not prepared to do that. The father’s fall-back position is that the Court should maintain child support at the current level, which is $250 per month or $3,000 per year less than the Federal Guidelines. The Court accepts that suggestion as reasonable and will maintain child support at the current level.

4.   Citizenship application

[61]        The father initially asked for authorization to sign alone applications for Canadian citizenship and a Canadian passport for X.

[62]        In the consent on provisional measures, the mother agreed and undertook to sign the application for Canadian citizenship. The issue of the Canadian passport was left for another day. The mother has not signed the application for Canadian citizenship.

[63]        The proceedings instituted by the mother in Australia express her concern about the father traveling back to Canada with X without the mother’s consent.

[64]        While there does not appear to be any factual basis for that concern, the father re-amended the present proceedings to remove the request for authorization to sign alone the application for a Canadian passport for X.

[65]        Given that (1) the mother previously agreed to sign the application for Canadian citizenship and that she has not done so, (2) it appears to be in X’s interest that she have Canadian citizenship, and (3) there does not appear to be any ground for refusing the request, the Court will authorize the father to sign alone the application for Canadian citizenship for X.

FOR THESE REASONS, THE COURT:

[66]        PRONOUNCES the divorce of the parties whose marriage was solemnized on November 23, 2008, in Abu Dhabi, United Arab Emirates, which takes effect on the thirty-first day following the date of the present judgment;

[67]        DECLINES jurisdiction in favor of the Australian court pertaining to the question of custody of X and access rights;

[68]        ORDERS the father to pay child support for the benefit of X in the amount of CAD$1,034.66 per month, in accordance with the Federal Child Support Guidelines, as adjusted by the Court;

[69]        ORDERS the child support to be indexed on the 1st of January of each year starting January 1, 2018, in conformity with Article 590 of the Civil Code of Quebec;

[70]        DECLARES that each party remains the sole and absolute owner of all property, moveable and immoveable, registered in his or her name or in his or her possession;

[71]        DECLARES that no spousal support shall be payable by either party;

[72]        AUTHORIZES the father to sign alone any and all documentation required in order to obtain proof of Canadian citizenship for the benefit of the minor child X and DECLARES that the father’s signature shall be sufficient in order to obtain said citizenship;

THE WHOLE WITHOUT COSTS.

 

STEPHEN W. HAMILTON, J.S.C.

Mtre Philippe Duplantie

FSD AVOCATS INC.

For the Applicant

 

Hearing date:

December 8, 2017

 

 

[1]    Exhibit P-2.

[2]    Exhibit P-1.

[3]    Exhibit P-2.

[4]    Exhibit P-3.

[5]    Exhibit P-4.

[6]    Exhibit P-7.

[7]    SOR/97-175.

[8]    Exhibit P-11.

[9]    Exhibit P-10.

[10]    Exhibit P-13.

[11]    Exhibit P-7.

[13]    Exhibit P-7, translation of the Abu Dhabi judgment, p. 3.

[14]    Exhibit P-4.

[15]    Exhibit P-8.

[16]    See Droit de la famille - 0724642007 QCCS 4822 (CanLII) (appeal granted for sole purpose of correcting a date, 2008 QCCA 549 (CanLII)).

[17]    See also Droit de la famille - 0821802008 QCCA 1672 (CanLII) (motion for leave to appeal to the Supreme Court of Canada dismissed, February 12, 2009, case number 32879).

[18]    Exhibit P-10.

[19]    Exhibit R-2 in support of the Motion for special mode of service by email dated May 11, 2017.

[20]    Art. 3123 C.C.Q.

[21]    Exhibit P-9.

[22]    Art. 3089 C.C.Q.

[23]    Exhibit P-13.

[24]    Exhibit P-14.

[25]    See Droit de la famille - 162402016 QCCS 431 (CanLII), par. 51-52.