2021 QCCA 758, 2021 QCCA 758

Kliger (Succession de Heath) c. Bourret (Succession de Heath) 2021 QCCA 758 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028492-197 ( 500-17-107223-193 ) MINUTES OF HEARING DATE: May 7, 2021 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A.

APPELLANT COUNSEL LIlLian kliger, in her capacity as liquidator of the estate of Donald Heath Mtre MAO CHAMBERS Absent RESPONDENTS COUNSEL ANDRÉ BOURRET, in his capacity as liquidator of the estate of Marie Bernadette Veyrat Heath TONY MASTROGIOVANNI, in his capacity as liquidator of the estate of Marie Bernadette Veyrat Heath Mtre ALAIN MONGEAU ( Alain Mongeau, Avocats ) Absent On appeal from a judgment rendered on June 21, 2019 by the Honourable Mr. Justice Benoît Emery of the Superior Court , District of Montreal .

NATURE OF THE APPEAL: Homologation of an agreement – Liquidation of a succession – Partition of the family patrimony. Clerk at the hearing : Anne Dumont Courtroom: Antonio-Lamer HEARING Continuation of the hearing held on May 6, 2021. The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 3.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] Considering that the judgment of the Superior Court was rendered by default, following the appellant’s failure to answer the summons, file a defence or exercise his right to cross-examination (art. 182 para. 2 C.C.P. ); [1] [ 2 ] Considering that the appellant has not demonstrated (or alleged) that the homologation proceedings were tainted by a procedural defect that would affect the validity of the judgment and could be redressed in appeal; [2] [ 3 ] Considering that the appellant’s grounds of appeal rest on facts that were not established before the Superior Court, and considering that evidence of such facts could not have been led by the appellant in the context of default proceedings; [ 4 ] Considering, in particular, that the appellant has not established the content or value of the family patrimony (including that of the family residence, which was the main object of the transaction homologated by the judgment under appeal), and considering that the evidence thereof cannot be led in appeal; [ 5 ] Considering also that, apart from the question of his own rights and those of his late wife in the family patrimony, [3] the appellant has not demonstrated that he has any right in his late wife’s property, as they were married in 1957 under the regime of separation as to property, according to the laws of England, whose content was not alleged or established before the Superior Court (art. 2809 C.C.Q. ) or properly established before this Court; [ 6 ] Considering that, as a matter of principle, the value of the family patrimony of the spouses is equally divided between them (art. 416 C.C.Q. ), such that the trial judge could legitimately conclude that the transaction submitted for homologation by the respondents substantially complied with the law in that said transaction provided for an equal partition of the net profit from the sale of the Belgrave property (which housed the family residence); [ 7 ] Considering that the trial judge could not infer from the evidence led by the respondents, in the absence of any contradictory evidence, that the appellant had, by this transaction, renounced his rights in the family patrimony or in his late wife’s will; [4] [ 8 ] Considering that counsel for the appellant, and now the appellant in continuance of suit, indicated that he does not contest the existence of the transaction but only its validity with regards to arts. 423, 646, 1385 and 1416 C.C.Q. ; THE COURT: [ 9 ] DISMISSES the appeal, with legal costs.

MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A.