2014 QCCA 2068, 2014 QCCA 2068

Bouchard c. Liu (Succession de) 2014 QCCA 2068 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-023236-136 (500-17-063097-110) PROCÈS-VERBAL D'AUDIENCE DATE : Le 5 novembre 2014 CORAM : LES HONORABLES françois doyon , J.C.A. marie st-pierre , J.C.A. mark schrager , J.C.A. APPELANTS AVOCATS FRANCIS BOUCHARD JÉRÉMY BOUCHARD Me MATHIEU DELBUGUET M e irving handelman ( Handelman Handelman Schiller ) INTIMÉS AVOCAT SUCCESSION DE FEUE CONSTANCE LIU DANY ROY M e MARC-B. BILODEAU En appel d'un jugement rendu le 29 novembre 2012 par l'honorable Roger E. Baker de la Cour supérieure, district de Montréal

NATURE DE L'APPEL : Libéralités – testament – indignité Greffière d’audience : Linda Côté Salle : Pierre-Basile-Mignault AUDITION 11h26 Début de l'audience – identification des procureurs. Plaidoirie de Me Mathieu Delbuguet. La Cour interroge Me Delbuguet. 12h09 Me Handelman répond à la Cour. 12h10 Plaidoirie de Me Marc-B. Bilodeau. 12h42 Réplique de Me Delbuguet. 12h43 Suspension de l'audience. 12h55 Reprise de l'audience. Arrêt unanime prononcé par l'honorable François Doyon – voir page suivante. 12h56 Fin de l'audience.

Greffière d’audience BY THE COURT JUDGMENT [ 1 ] This is an appeal of the judgment of the Superior Court of November 29, 2012 (the Honourable Roger E. Baker), which granted in part Appellants’ action, ordered Respondent to pay certain amounts to Appellants and dismissed the conclusions seeking to declare Respondent unworthy as universal legatee of his wife, the late Constance Liu, and to have him removed as testamentary liquidator. [ 2 ] Constance Liu, the mother of Appellants and the wife of Respondent, died on August 4 th , 2010. She began living with Respondent in 2002 and they married in August of 2004.

The Appellants, Mrs. Liu’s children from a first marriage, lived with the couple until they were ordered to leave the house by Respondent shortly after Mrs. Liu’s death. [ 3 ] By 2005, Respondent’s children by a previous union, the Appellants and Mrs. Liu formed a combined family but by 2008 or 2009, (according to the testimony of one witness) the marriage was no longer on solid ground. [ 4 ] Unfortunately, Mrs. Liu’s health began to deteriorate in 2009.

She was eventually diagnosed with a tumour and she died as mentioned above on August 4, 2010. [ 5 ] During her hospitalization, the Respondent’s care for the Appellants was lacking and the relationship was at best strained. This continued after Mrs. Liu’s death and indeed deteriorated. [ 6 ] During Mrs. Liu’s hospitalization, Respondent cashed a certain GST refund cheque made to the order of Appellant Francis Bouchard. Respondent, while denying cashing the cheque, consented to judgment for the amount of $ 225 at first instance. [ 7 ] On the day following Mrs. Liu’s death, the Respondent, together with Mrs.

Liu’s sister, Jennifer Chan, attended at the bank to open Mrs. Liu’s safety deposit box wherein they found her will, a bracelet and pendant.

[ 8 ] Mrs. Liu’s will instituted Respondent as universal legatee and testamentary liquidator. She bequeathed as particular legacies to the Appellants:

i) all of her jewellery in equal shares; ii) her car to one of the Appellants and a sum equal to the value of the car to the other Appellant. [ 9 ] In the days following Mrs. Liu’s death, Respondent gave notice to Appellant Jeremy Bouchard to leave the house within six weeks because he disobeyed the rules. Appellant Francis Bouchard testified to a violent episode whereby Respondent struck his computer. Clearly, the atmosphere in the home was tense and unpleasant. [ 10 ] On September 14, 2010, Appellant Francis Bouchard wrote by registered mail to Respondent demanding a copy of Mrs.

Liu’s will, which he received the next day. [ 11 ] Shortly thereafter, both Appellants were ordered out of the house by Respondent. [ 12 ] Appellants instituted proceedings against Respondent in January 2011. The proceedings sought a declaration that Respondent was unworthy of inheriting so that Appellants be declared sole beneficiaries of their mother’s estate and that Respondent be removed as testamentary liquidator. [ 13 ] Appellants also sought various monetary condemnations. Those relevant at this juncture are:

i) payment of $ 225 (the GST refund referred to above) to Appellant Francis Bouchard; ii) payment of $ 1040 to Appellant Francis Bouchard, withdrawn from a registered education savings account (RESP) held by Mrs. Liu for her sons. A cheque was cashed in such an amount; iii) payment of $ 4000 to Appellant Jeremy Bouchard, representing the value of Mrs. Liu’s car delivered by Respondent to Appellant Francis Bouchard; iv) payment of $ 33 675 being the alleged value of Mrs.

Liu’s jewellery bequeathed by her to the Appellants. [ 14 ] Appellants also sought an order of transfer of the RESP account to them by Respondent in his quality as testamentary liquidator. [ 15 ] Despite initial denials, by the end of the trial in first instance, Respondent had agreed to or admitted liability for all of the above conclusions except with respect to the jewellery.

He contested the declaration of unworthiness to inherit as well as his removal as testamentary liquidator. [ 16 ] Respondent eventually admitted that his wife had owned jewellery but stated that at her death all of the jewellery, both in the safety deposit box and at the house, was taken by her sister. As for his wife’s wedding ring, he admitted a value of $644 and that he had thrown the ring into the coffin to be cremated with his wife. [ 17 ] The sister, Mrs.

Chan, who was considered credible by the trial judge and whose testimony was corroborated by a friend (Laurie Abbot) testified to the presence of specific items of jewellery enumerated on the list, exhibit P-6. [ 18 ] However, the trial judge would not accept her evidence with respect to the value of any of the jewellery. [ 19 ] Appellants did not seek to have the expert engaged by them heard at trial. The expert who had ascribed values to the list of jewellery, exhibit P-6, prepared by Mrs.

Chan and based on her descriptions as well as certain photos provided to him, apparently came to certain conclusions concerning values. However, as stated, this expert did not testify at the trial. [ 20 ] The judgment appealed from condemned Respondent to the monetary amount of $ 225 (for the GST reimbursement), $ 1 040 (for the RESP cheque) and $ 4000 (for the car). The judgment also ordered the transfer of the “RESP failing which Respondent would be ordered to pay $ 8000”.

However, the judgment dismissed all the other conclusions regarding the unworthiness of Respondent as a testamentary beneficiary, his removal as liquidator and the $ 33 675 sought as compensation for the jewellery. [ 21 ] Appellants inform this Court that Respondent paid the $ 225 plus the $ 1040 plus the $ 4000 and transferred the RESP, following the judgment in first instance. [ 22 ] Before this Court, Appellants invoke the following grounds:

i) The trial judge committed a “manifest error of fact and law” in disallowing evidence of the existence in value of the jewellery and holding that the Appellants did not prove the existence or the value of the jewellery. ii) Respondent should be declared unworthy as an heir in virtue of

Article 621 CCQ given his behaviour and be deemed to have renounced the estate pursuant to

Article 651 CCQ because of concealing estate property. iii) Lastly, Appellants seek the removal of Respondent as estate liquidator. ANALYSIS 1.- First ground [ 23 ] Appellants did succeed in proving through the testimony of Mrs. Chan, the presence at the time of death of a large number of items of jewellery on the list, exhibit P-6. Her testimony was deemed credible by the trial judge and it was corroborated by another witness. However, the trial judge did not permit Appellants to prove the value of that jewellery through Mrs.

Chan’s testimony and Appellants made no attempt at trial to call their expert as a witness so as to prove the values inscribed on the list, exhibit P-6. Though the expert was examined on discovery by Respondent in first instance, the transcript is not part of the appeal record. [ 24 ] Based on this dearth of evidence on the value of the jewellery, it is not possible to make a finding in favour of the Appellants. It does appear on the balance of probabilities, given Respondent’s denials followed by an admission as to the existence of jewellery and the evidence of Mrs. Chan and Laurie Abbot, that Mrs.

Liu did possess jewellery at the time of her death. Even accepting Respondent’s

explanation that Mrs. Chan, the sister, took the jewellery, as testamentary liquidator, he failed to take possession of the jewellery and deliver it to Appellants in performance of his duties as a liquidator. Nevertheless, the value of the jewellery is simply not in evidence, given that Appellants did not attempt to have their expert testify at trial. [ 25 ] However, Respondent did admit that he threw the wedding ring into the coffin and he admitted the value at $ 644. This ring is part of Mrs. Liu’s jewellery and was bequeathed to the Appellants.

No mention was made of this by the judge in first instance and this omission constitutes a palpable error of fact and accordingly Respondent will be condemned to pay $ 644 with interest and special indemnity since the institution of proceedings in first instance. [ 26 ] No interest or special indemnity was awarded on the other monetary sums and this error will also be corrected by the award of interest and special indemnity on the aggregate of the foregoing amounts of $ 5 265 from the institution of proceedings until thirty days following the judgment in first instance (i.e.

December 30, 2012). 2.- Second ground [ 27 ] Concerning the second ground, Justice Baker determined that though Respondent treated his step-sons in a “less than exemplary manner”, Respondent’s behaviour was directed at the Appellants following Mrs. Liu’s death; there was no evidence of such behaviour directed to Mrs. Liu during her life time and as such the factual basis of Article 621 (1) CCQ was not proved. [ 28 ] There appears no error of fact or law arising from this conclusion that would merit intervention by this Court. [ 29 ] The ground arising from the application of

Article 651 CCQ i.e. that Respondent be deemed to have renounced as a beneficiary because of his concealing or appropriating property was not sought as a conclusion to the proceedings in first instance and so cannot be granted in appeal even if raised in the inscription. In any event, the record does not disclose in a preponderant manner the bad faith required for a finding under

Article 651 CCQ . 3. - Third ground [ 30 ] Although much of Respondent’s reprehensible conduct was manifested in the context of his duties as testamentary liquidator, given that the administration of the estate is essentially terminated and the other findings herein, his removal is largely academic and would serve no useful purpose.

Accordingly, this ground must also be dismissed. [ 31 ] FOR THESE REASONS , the Appeal is GRANTED IN PART only in order to add the following conclusions to the judgment in first instance: CONDEMNS the Defendant, Dany Roy, to pay to Plaintiff, Francis Bouchard, interest and the special indemnity foreseen by the Quebec Civil Code on the sum of $ 1265 from the date of the institution of proceedings until December 30, 2012; CONDEMNS the Defendant, Dany Roy, to pay to Plaintiff, Jeremy Bouchard, interest and the special indemnity foreseen by the Quebec Civil Code on the sum of $ 4000 from the date of the institution of proceedings until December 30, 2012; CONDEMNS the Defendant, Dany Roy, to pay to Plaintiffs, jointly, the sum of $ 644 plus interest and the special indemnity foreseen by the Quebec Civil Code from the date of the institution of proceedings; THE WHOLE without costs, given the outcome of the appeal.

FRANÇOIS DOYON, J.A. MARIE ST-PIERRE, J.A. MARK SCHRAGER, J.A.