2023 QCCA 1575, 2023 QCCA 1575

Unofficial English Translation of the Judgment of the Court Droit de la famille — 232101 2023 QCCA 1575 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030594-238 ( 760-12-026107-197 ) MINUTES OF THE HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“CCP”) provides that, unless authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 CCP).

DATE: November 24, 2023 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. GUY COURNOYER, J.A. LORI RENÉE WEITZMAN, J.A. APPELLANT COUNSEL A. L. Mtre Pamela O’Reilly Absent RESPONDENT COUNSEL S. H. Mtre Jacqueline Sanderson Absent On appeal from a judgment rendered on May 15, 2023, by the Honourable François P. Duprat of the Superior Court, District of Beauharnois. DESCRIPTION: Application to extend the time limit to file the notice of appeal and memorandum, for a postponement, to adduce new evidence, and for a safeguard order ( s. 21(3)

(4) Divorce Act and arts. 373, 379 and 380 CCP). Application to dismiss an appeal (art. 365(3) CCP). Clerk at the hearing: René Gutknecht Room: Pierre-Basile-Mignault

HEARING Continuation of hearing of November 20, 2023. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page X. René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] The appellant appeals from the divorce judgment rendered on May 15, 2023, by the Superior Court, District of Beauharnois (the Honourable François P.

Duprat). [1] Informed by the office of the Court of Appeal that his notice of appeal was filed with the office of the Court of Appeal one day late, that is, on June 15, 2023, he then filed an application to extend the time limit to appeal the divorce judgment, to extend the time limit for his memorandum, to postpone the hearing on the appeal, for permission to present indispensable new evidence, and a safeguard order. [ 2 ] For her part, the respondent filed an application for dismissal of the appeal raising the late filing of the notice of appeal and the lack of a reasonable chance of success of the grounds raised.

The respondent stated that she intends to discontinue her incidental appeal if the Court dismisses the appeal. [ 3 ] As part of his application to extend the time limit, the appellant acknowledged that the notice of appeal was filed late.

The Court recalls in this regard that in Droit de la famille — 222215 , [2] per Mainville J.A., the Court confirmed that, under s. 21 of the Divorce Act , the starting point for calculating the time limit to appeal from a divorce judgment is the date of the judgment and not the date of the notice of judgment, as provided by art. 360 CCP. [ 4 ] The appellant submits, however, that this delay occurred due to inaccurate instructions from the publisher Multifactum and the time required to serve the proceeding on the respondent in Florida.

He asks that, in any event, he be granted an extension, especially since the delay of one day does not cause the respondent prejudice and neither does extending the time limit to file his memorandum or postponing the hearing scheduled on January 24, 2023. [ 5 ] At the hearing, he stated that he managed to have an expert report completed on the value of the parties’ secondary residence in Florida, thereby rendering the application for a safeguard order moot.

He asks, however, to postpone his application to adduce new evidence so he can amend it and attach the new expert report to it and to present this application once the extension of the time limit to appeal has been authorized. * * * [ 6 ] Even assuming that the ground raised can be qualified as “special grounds” within the meaning of section 21(4) of the Divorce Act , the Court considers that it cannot authorize the extension of the time limit to appeal sought because the appellant has not demonstrated that his grounds of appeal have a reasonable chance of success. [ 7 ] First, the Court notes that the only issue on appeal of the divorce judgment concerns the determination of the value of the parties’ secondary residence for the purposes of partitioning the family patrimony.

The appellant claims that the trial judge erred in law by arbitrating the value of the secondary residence based on a date that was close to the date when the parties ceased sharing a community of life, thereby disregarding the rules of indivision. He further faults the judge for arbitrating this value instead of accepting the one proposed by his own expert and for reducing this value by the estimated cost of the repair work for the immovable. [ 8 ] The Court recalls that in the judgment under appeal, the judge first established that the community of life ceased on the date November 30, 2018.

Next, exercising his discretionary power, [3] he chose to determine the partitionable value of the secondary residence based on that date. Because he did not have an assessment dated November 30, 2018, he accepted, as the partitionable value, the median (US$466,000) of the only two contemporary expert reports validly filed by the parties, dated respectively May 27, 2019, (US$420,000) and April 17, 2019 (US$472,000). In doing so, he rejected the assessment completed by the second expert dated March 23, 2022, without returning to the premises, who assumed that the property was in the same state as in April 2019.

Given the evidence that the state of the immovable had considerably deteriorated since then, the judge deducted from the partitionable value thus determined the cost of the repair work in connection with the presence of termites (US$210,000) based on the estimate of the work as filed in evidence by the respondent. [ 9 ] This Court has recognized many times that the provisions applicable with respect to the partition of the family patrimony take precedence over the modalities of ownership of the property included in it, [4] such that demonstrating that the judge erred in law because he accepted the date the community of life ceased to establish the value of the secondary residence, rather than the date of the judgement, is doomed to fail.

The judge also did not err in arbitrating the value of the residence by relying on the evidence that had been

adduced before him, as this Court recognized in Droit de la famille — 15256 . [5] [ 10 ] The appellant’s attempt to file a new expert report on appeal speaks to the incomplete nature of the evidence he adduced at trial. The appeal stage is not the time to strengthen or compensate for evidence that was not adduced in a timely manner in first instance. [ 11 ] Ultimately, because the appeal has no reasonable chance of success, there is no need to extend the time limit to appeal or to grant the various accessory applications that are now moot.

It is also appropriate to grant the dismissal of the appeal, which was not validly brought, and to take note of the discontinuance of the incidental appeal. FOR THESE REASONS, THE COURT: [ 12 ] DISMISSES the application for leave to appeal after the expiry of the time limit; [ 13 ] DECLARES moot all the other accessory conclusions included in that application; [ 14 ] GRANTS the respondent’s application to dismiss the appeal; [ 15 ] DISMISSES the appeal; [ 16 ] TAKES NOTE of the respondent’s discontinuance of the incidental appeal; [ 17 ] WITHOUT COSTS , given the nature of the dispute. GENEVIÈVE MARCOTTE, J.A.

GUY COURNOYER, J.A. LORI RENÉE WEITZMAN, J.A.