2015 QCCA 2015, 2015 QCCA 2015

Droit de la famille — 153088 2015 QCCA 2015 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025200-155 (500-12-226218-950) MINUTES OF THE HEARING DATE: December 4, 2015 CORAM: THE HONOURABLE MARIE-FRANCE BICH , J.A. MARIE ST-PIERRE , J.A. JEAN-FRANÇOIS ÉMOND , J.A. APPELLANT ATTORNEY W. L. Mtre SAMY STALTARI (present) ( Hammerschmid & associé

s) RESPONDENT ATTORNEY S. S. Mtre ASHER NEUDORFER (present) ( Sarna Neudorfer) IMPLEADED PARTY AGENCE DU REVENU DU QUÉBEC

On appeal from a judgment rendered on March 25, 2015, by the Honourable Justice François P. Duprat, of the Superior Court, District of Montreal. DESCRIPTION : Family – Motion to Cancel Spousal Support. Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9:30 Continuation of the hearing of December 3, 2015. BY THE COURT: Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from the judgment rendered on March 25, 2015 by the Honourable Justice François P.

Duprat of the Superior Court, District of Montreal (« the trial judge ») and dismissing appellant’s motion to cancel spousal support. [1] [ 2 ] Fifteen years having elapsed since the signature of the « consent to judgment » by the parties, their agreement on accessory measures (« the agreement »), and its homologation by the court, appellant submitted that he should no longer pay spousal support. The

trial judge did not agree. [ 3 ] Whether the agreement was limited in time was the only issue before the trial judge; the appellant admitted his ability to continue payment and it was not argued that respondent’s circumstances had changed so that an interruption of spousal support would be justified. [ 4 ] Appellant argues there is a maximum time limit of fifteen years built into the agreement; respondent says there is no such limit until the following conditions are met: 1° appellant manages the portfolio, 2° said portfolio has reached $624,000 in capital or has started generating monthly revenues of $3,500 net of taxes. [ 5 ] Summarily, the trial judge concluded as follows: ➢ The agreement is clear and, without the portfolio reaching a certain value ($624,000) or generating a certain income ($3,500, per month, net of taxes), appellant’s obligation to make-up the difference between what the portfolio is generating and the $3,500 per month, net of taxes, has not come to an end. ➢ Assuming that the agreement is unclear or ambiguous, the analysis of the common intention of the parties, applying articles 1425- 1432 C.C.Q., leads to the same answer. [ 6 ] The trial judge wrote: [41] It is not denied the portfolio never produced the $ 3 500 per month income.

The 5 year period may not run without that condition being met. The Court notes the agreement underlines the word and; surely it signifies the parties wanted to place emphasis on the two conditions which follow. The husband manages the portfolio and it must produce the amount of revenue needed for the support to end. [42] The argument that support ends, no matter what after a period of 15 years, fails to take into account the target the parties negotiated.

The husband’s view of the agreement neglects the undertaking that he must supplement the income for 5 additional years once the portfolio first produced $ 3 500. This eventuality has not yet materialized. [43] In the eyes of the Court, the words are clear and do not require further

interpretation. There is no ambiguity. [44] Should the Court take a step further and analyse the common intention of the parties, then the conclusion would be the same. [45] This intention is illustrated in the letters exchanged between the attorneys for the parties. First, the July 10, 1998 letter. At that time the parties contemplated a portfolio of $ 135 000 and an income of $ 3 000. [46] The husband’s handwritten notes, which were forwarded to the wife, read: if the portfolio doesn’t provide $ 3 000/mo net I would continue to pay $ 3 000/ mo until it did generate $ 3 000/mo net.

This is a no lose situation for you and it ensures I will manage it well. If you do not want me to manage it then that would be OK but at the end of 10 years I wouldn’t be responsible for the value of the portfolio or for the $ 3 000 net. [47] The letter does contain a mention that the husband does not wish to provide support to the wife until she is 65 years of age as he then would be 74 years old. [48] The second letter, dated September 22, 1998, proposed a $ 200 000 portfolio, and a $ 3 500 monthly net income. It contains the following: It is obvious that Mr.

L. should manage these funds since it is in his interest to ensure that they compound adequately to ensure Mrs. S.’s future revenue (if the portfolio does not provide an income of $3 500 net per month at the end of the ten (10) year period, our client would pay $ 3 500 per month until said portfolio did generate the requisite $ 3 500 net payment (or he would make up the difference). [49] The five (5) year period found in the Consent does not appear in the letters which only refer to a ten (10) year period.

The five (5) year period provides an additional advantage to the husband as it puts a time limit on his obligation to pay support once the target income has first been reached. [50] The husband was confident the portfolio would grow and reach the $3500 goal and, if that level could not be maintained right up to the end of the 10 years, then he wanted to end support at 5 additional years from the first successful month. This is the

interpretation to be given. [References omitted] [ 7 ] Appellant submits we should intervene given that the judge erred in: ➢ Allowing two letters exchanged between the parties and their counsel, prior to the signature of the agreement, into evidence; ➢ Discarding the expert reports as well as their testimony; ➢ Applying an incorrect

interpretation of the agreement. [ 8 ] We disagree and the appeal will be dismissed. Allowing two letters in evidence [ 9 ] The judge made no error in allowing the two letters in evidence. [ 10 ] Firstly, appellant was allowed to testify (under reserve of counsel’s objection) as to his understanding of the agreement at the

time it was signed. Counsel for the respondent used these letters as tools in cross-examination to challenge this testimony. In his judgment, the trial judge dismissed respondent’s counsel objection.

Appellant’s argument that the production of the said letters into the court record constitutes inadmissible self-serving evidence of respondent is totally without merit. [ 11 ] Secondly, being contemporaneous documents to the agreement and setting out views of the parties at the time it was negotiated and reached, they were relevant [2] . [ 12 ] Thirdly, as the negotiations led to an agreement (consent on accessory measures) eventually homologated by a judgment, the objection raised on the basis of settlement privilege was, in the circumstances of the present file, unfounded [3] . The

interpretation of the agreement being itself in issue, they were admissible and could be tendered in evidence. Discarding the expert reports and testimonies [ 13 ] Finally, since the respondent never advanced a claim of negligence against the appellant for his management of the portfolio, the expert reports and their testimonies were irrelevant to the case at bar; the sole issue was the meaning of paragraph 6 of the agreement and the expert reports were of no assistance to that inquiry.

Interpretation of the agreement [ 14 ] Whether a judge correctly interpreted a contract (or a consent agreement homologated by a court) is a question of fact or, at best, a mixed question of fact and law. As the Court recently reiterated, deference must be accorded to the trial judge’s finding and the judgment should neither be reversed nor modified unless it is vitiated by a palpable and overriding error: [9] L’interprétation de la clause d’exclusivité est une question de fait ou, au mieux, une question mixte de droit et de fait. La Cour doit ici tenir compte du récent arrêt Sattva Capital Corp. c.

Creston Moly Corp. , où une formation de sept juges de la Cour suprême du Canada s’est prononcée sur ce point. De nos jours, a-t-elle souligné, est erronée la proposition selon laquelle tout jugement qui tranche une difficulté d’interprétation dans un contrat est par le fait même un jugement qui tranche une question de droit.

Le juge Rothstein, auteur des motifs unanimes de la Cour, écrit notamment à ce sujet : [52] De même, la Cour dans l'arrêt Housen conclut que la retenue à l'égard du juge des faits contribue à réduire le nombre, la durée et le coût des appels tout en favorisant l'autonomie du procès et son intégrité (par. 16-17). Ces principes militent également en faveur de la déférence à l'endroit des décideurs de première instance en matière d'interprétation contractuelle . Les obligations juridiques issues d'un contrat se limitent, dans la plupart des cas, aux intérêts des parties au litige.

Le vaste pouvoir de trancher les questions d'application limitée que notre système judiciaire confère aux tribunaux de première instance appuie la proposition selon laquelle l'interprétation contractuelle est une question mixte de fait et de droit .

La norme d’intervention en appel sur une question d’interprétation comme celle que soulève ce pourvoi est donc celle de l’erreur manifeste (ou évidente) et dominante (ou déterminante) […] [4] . [ Our underlining ] [ 15 ] Finding that “[t]he court must give effect to the wording of the agreement and to the notion that the portfolio must generate a certain income before support is terminated” is a logical reading of paragraph 6 of the agreement leading to the conclusion that the appellant is required to make-up the difference between what the portfolio is generating and the $3,500 figure until the portfolio generates $3,500 by itself.

It is at this moment, and not before, that the five (5) year term begins to run. [ 16 ] It was not enough for the appellant to argue that the judge could have or should have construed the agreement otherwise. To succeed, he bears the burden of showing that the judge’s

interpretation rested on a palpable and overriding error, which he has failed to demonstrate. [ 17 ] For these reasons, THE COURT: [ 18 ] DISMISSES the appeal with costs. MARIE-FRANCE BICH, J.A. MARIE ST-PIERRE, J.A. JEAN-FRANÇOIS ÉMOND, J.A. [4] Corbeil Électrique inc . v . Groupe Opex inc. (Ashley Meubles Homestore) , 2015 QCCA 1955 . See also : René Corriveau & Fils inc. v. 9201-0958 Québec inc. , 2014 QCCA 1765 , para. 10 ; Samen Investments Inc. v . Monit Management Ltd . , 2014 QCCA 826 , paras. 40-

52 and Compagnie de chemin de fer du littoral nord de Québec et du Labrador inc. v. Sodexho Québec ltée , 2010 QCCA 2408 , para. 211 .