2018 QCCA 161, 2018 QCCA 161

Droit de la famille — 18201 2018 QCCA 161 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500- 09-026913-178 ( 540-12-018941-146 ) MINUTES OF THE HEARING DATE: February 2, 2018 CORAM: THE HONOURABLE NICHOLAS KASIRER , J.A. MANON SAVARD , J.A. MARTIN VAUCLAIR , J.A. APPELLANT COUNSEL P… A... Mtre JOSEPH NEUDORFER ( Absent ) RESPONDENT COUNSEL A… U... Mtre LORIANNE RAPOSO ( Absent ) On appeal from a judgment rendered on June 19, 2017 by the Honourable Justice Mark G. Peacock of the Superior Court , District of Laval . DESCRIPTION : Family - Divorce - Family patrimony - Access rights - Partnership of Acquests.

Clerk: David Champigny Courtroom: Antonio-Lamer HEARING 2:08 PM Continuation of the hearing from February 1, 2018. The presence of Counsel is not required. BY THE COURT: Judgment – see page 3.

(

s) David Champigny Clerk BY THE COURT JUDGMENT FOR REASONS TO FOLLOW, THE COURT : [ 1 ] ALLOWS the appeal, for the sole purpose of striking paragraphs [139] and [144] and replacing them with the following paragraphs: [139] DECLARES the partition of the family patrimony as of January 27, 2014 (the date of the institution of the divorce application and the same date as for […] the partition of acquests) and ORDERS the Mother [ i.e . the appellant] to pay the Father [ i.e . the respondent] the sum of $76,303.95 (representing his 50% share of the net value of the family patrimony ( $96,303.95 ) less an amount of $20,000 to account for an unequal partition thereof), on or before April 2, 2018 at 17:00 hours ; [144] DECLARES that the Mother owes to the Father the amount of $164,729.00 by way of division of the partnership of acquests but, operating compensation with the amount of the compensatory allowance owed to the Mother, ORDERS the Mother to pay to the Father the amount of $124,729.00 ($164,729.00-$40,000.00) as a balance owed to the Father and to pay this on or before April 2, 2018 at 17:00 hours ; [ 2 ] CONFIRMS the judgment of the Superior Court in all other respects; [ 3 ] WITHOUT legal costs given the nature of the appeal.

NICHOLAS KASIRER, J.A. MANON SAVARD, J.A. MARTIN VAUCLAIR, J.A. Droit de la famille — 18201 2018 QCCA 161 COURT OF APPEAL CANADA PROVINCE OF QUEBEC

REGISTRY OF MONTREAL No: 500-09-026913-178 (540-12-018941-146) DATE: February 8, 2018 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MANON SAVARD, J.A. MARTIN VAUCLAIR, J.A. P. A. APPELLANT - Plaintiff v. A. U.

RESPONDENT - Defendant REASONS FOR JUDGMENT RENDERED AT THE HEARING [1] At the hearing of the present appeal on February 2, 2018, the Court rendered the following judgment: [2] FOR REASONS TO FOLLOW, THE COURT : [3] ALLOWS the appeal, for the sole purpose of striking paragraphs [139] and [144] and replacing them with the following paragraphs: [139] DECLARES the partition of the family patrimony as of January 27, 2014 (the date of the institution of the divorce application and the same date as for the […] partition of acquests) and ORDERS the Mother [ i.e . the appellant] to pay the Father [ i.e . the respondent] the sum of $ 76,303.95 (representing his 50% share of the net value of the family patrimony ( $96,303.95 ) less an amount of $20,000 to account for an unequal partition thereof), on or before April 2, 2018 at 17:00 hours ; [144] DECLARES that the Mother owes to the Father the amount of $164,729.00 by way of division of the partnership of acquests but, operating compensation with the amount of the compensatory allowance owed to the Mother, ORDERS the Mother to pay to the Father the amount of $124,729 ($164,729.00 - $40,000.00) as a balance owed to the Father and to pay this on or before April 2, 2018 at 17:00 hours ; [ 4 ] CONFIRMS the judgment of the Superior Court in all other respects; [ 5 ] WITHOUT legal costs given the nature of the appeal. [ 6 ] What follows are the reasons for judgment on the appeal. *** [ 7 ] P.

A. has appealed a judgment of the Superior Court, District of Laval (the Honourable Mark G. Peacock), rendered on June 19, 2017, which pronounced the divorce between the parties and rendered certain orders for corollary relief. [1] The judge granted custody of the couple’s six-year old daughter to the appellant and supervised access rights, to the respondent A. U., with the cost thereof to be shared. He ordered child support for two of the children.

The judge refused the appellant’s request for an unequal partition of the family patrimony, granted her demand for a compensatory allowance and refused a similar request made by the respondent.

The judge refused to declare that the respondent had forfeited his right to demand partition of the appellant’s acquests upon dissolution of the applicable matrimonial regime, the partnership of acquests. [ 8 ] On appeal, only matters relating to the family patrimony, the compensatory allowance, the matrimonial regime and the cost of supervised access remain in dispute. *** [ 9 ] The trial lasted two days, during which the judge considered nearly 100 exhibits. He heard conflicting testimony from the two spouses on the manner in which they shared financial and child-care responsibilities during the marriage.

The judgment extends to 146 paragraphs, much of which is devoted to deciding matters of credibility. [ 10 ] The parties both immigrated to Canada in the late 1980s. They met in Quebec and were married here in 1992. Their marriage was subject to the matrimonial regime of the partnership of acquests. They have three children, one of whom is a minor. The eldest child is financially independent.

[ 11 ] The appellant has some post-secondary education and she had what the judge described as a “head for figures”. She worked for most of the marriage as a receptionist. The judge described her as intelligent and explained that she took on the tasks of administering family finances. The main assets in dispute – the family residence and a small multiple-dwelling revenue property – are held in her name, and the hypothecary debts to finance their acquisition were contracted by her, although the respondent signed one as a guarantor. [ 12 ] The respondent, by his own account, is less well-educated.

During the marriage, he was employed as a cook. For a period, he worked in a restaurant run by the parties and held in the appellant’s name. [ 13 ] In her petition for divorce, the appellant alleged that her husband had subjected her to physical and psychological abuse. She claimed that he had made little or no contribution to the expenses of the marriage over the years and that she had undertaken most, if not all, of the household and child-care tasks. She said further that the respondent concealed his assets and sent money to relatives in his country of origin rather than contribute to family finances.

In particular, she alleged, he did not contribute to the acquisition or upkeep of the family residences or the revenue property. [ 14 ] The respondent contested the picture his wife gave of the family’s finances. He said that he had contributed materially and otherwise to the marriage. He denied the allegations of abuse.

He asked for equal partition of the family patrimony, for a compensatory allowance to be awarded to him based on her alleged misuse of family allowance payments, and he opposed the demand for forfeiture under the rules of the partnership of acquests. [ 15 ] Over the life of the marriage, money was a bone of contention between the parties, although the extent and character of the appellant’s complaints were disputed. In 2002, the respondent signed a hand-written document in which he purported to waive his rights in property held by the appellant.

Several years later, when the appellant insisted that he execute this document before a notary, the respondent refused to do so. [ 16 ] As reflected in the trial record, the state of the family’s finances was unruly. The appellant used multiple credit cards for short- term and long-term financing; some of the respondent’s income was paid in cash.

The parties did not produce a complete set of bank records, and several of the bank accounts to which they referred in their testimony are absent from the record. [ 17 ] Amongst the relevant conclusions sought in Superior Court, the appellant asked for the unequal partition of the family patrimony, in particular that she be awarded outright ownership of the family home.

She requested a compensatory allowance by reason of the respondent’s failure to contribute to family finances, and asked the judge to declare that the respondent’s conduct justified forfeiture of his right to the partition of her acquests. *** [ 18 ] The judge described the dispute as acrimonious. In the course of his reasons for judgment, he was harsh with both parties, finding that they both had failed to disclose assets they had acquired over the marriage.

He decided as well that they had both misstated their income available for child support. [ 19 ] The appellant’s request for an unequal partition of the family patrimony was rejected. The judge found the appellant’s proof of her husband’s alleged “economic fault” to be insufficient to meet the applicable standard under

article 422 C.C.Q . He did order a compensatory allowance in the appellant’s favour on the basis of what he described as unjust enrichment of the respondent at her expense resulting from his failure to contribute to family finances and household chores. While he characterized the respondent’s refusal to execute the 2002 hand-written waiver before a notary as a reflection of his bad faith, he decided that the renunciation was invalid both in respect of property in the family patrimony and acquest property.

The judge then refused the appellant’s demand for an order that the respondent’s right to a share of her acquests was forfeited. In ordering supervised access for the respondent in respect of the parties’ minor child, the judge directed the costs of supervised access should be shared equally. *** [ 20 ] The appeal raises four questions, the first three by the appellant: (

i) Did the judge err in the amount he ordered for the division of the family patrimony, in particular, in his calculation of the net value thereof and by refusing the appellant’s request for unequal partition?; (ii) Did the judge err in refusing to order the forfeiture of the respondent’s share in the appellant’s acquest property?; and (iii) Did the judge err in deciding that the parties should share the costs of the respondent’s supervised access of the minor child? [ 21 ] The respondent says the judge made no reviewable error.

In response to the appellant’s arguments, he raises a fourth question: (iv) In the event that this Court orders the forfeiture of acquests in favour of the appellant, should the compensatory allowance be annulled insofar as it would reward her twice for the same supposed unjust enrichment? [ 22 ] Each of these four questions shall be treated in turn. [ 23 ] It should be noted, as a preliminary point, that both parties on appeal acknowledged the imperfect, indeed “chaotic” character of the evidence administered before the first judge in respect of the family finances.

The Court makes particular note of the fact that the records of only one of the parties’ various bank accounts referred to in their oral testimony is reproduced in the evidence, and only partially at that. I The partition of the family patrimony [ 24 ] The appellant submits the judge erred in his calculation of the net value of the family patrimony, which he fixed at $252,300,

and was mistaken in refusing to order an unequal partition in favour of the appellant pursuant to

article 422 C.C.Q . I A The alleged error in the calculation of the net value of the family patrimony [ 25 ] There is no dispute regarding the value the judge attributed to the family furniture subject to partition ($1,000) or his decision to allow each of the spouses to keep one of the two cars used by the family. The date for partition, which had been the subject matter of disagreement, was fixed by the judge at the date of the institution of the divorce proceedings on January 27, 2014.

This is no longer in dispute. [ 26 ] The appellant submits however that the judge erred in his calculation of the net value of the family patrimony in two respects.

First, the appellant says he used an evaluation of the family residence that was not contemporaneous and was too high and, second, he failed to attribute the appropriate deduction for a portion of its value originating as a gift to the appellant from her parents. [ 27 ] On the first point, the appellant says the judge should have used a figure of $480,033 to evaluate the second family residence, taken from her “Personal Balance Sheet” dated July 31, 2014, as more contemporaneous. This amount relates to a school tax bill, in the record, that is the closest reliable evidence of value to the partition date in 2014.

The appellant relied on this same amount in the “Statement of Family Patrimony”. [ 28 ] The appellant has failed to show that the judge erred in a manner that would justify an intervention on this point. [ 29 ] The judge was entitled to prefer the amount of $513,000 which finds support in the evidence. He plainly considered the personal financial statements prepared for the appellant by her brother to be less than fully reliable; it initially had errors as to the dates and was unaudited.

The $513,000 figure was actually marginally less than the municipal evaluation, but consonant with an amount declared by the appellant herself in an ALIFORM statement she prepared for child support purposes and sworn by her to be true.

No error has been shown. [ 30 ] As to the value attributed to a gift made to the appellant, however, we are of the respectful view that a mistake was made that had a material impact on the judge’s calculation of the net value of the family patrimony. [ 31 ] The judge noted that the appellant made the down-payment on the first family residence in 1994 with gold given to her by her parents. This finding finds adequate support in the evidence. He accepted that the gold was valued at $20,700 at the time of the purchase of the first family residence for an amount of $112,277.65. Citing

article 415, para. 4 C.C.Q ., the judge considered the $20,700 to be a gift that should be excluded from the family patrimony (para. [38]). The residence was sold in 2003 for $170,000. That year, the appellant purchased a second family residence for $200,000.

When the judge calculated the net value of that residence at the date of the institution of the proceedings in 2014 for the purposes of calculating the net value of the family patrimony, he deducted an amount of $20,700 from the $513,000 valuation dated 2014 (para. [41]). [ 32 ] Respectfully stated, the judge should have made a deduction of the increase in value of the 1994 down-payment, as reinvested, when he arrived at the value subject to partition pursuant to

article 418, paras. 1 and 2 C.C.Q . [ 33 ] The calculation should have proceeded as follows: - first, the judge should have deducted an amount of $20,700 representing the net value of the initial contribution to the first family residence originating from the gift in 1994 (article 418, para. 1 C.C.Q. ); - second, the increase in value associated with that contribution at the time of the sale of the first family residence should have been deducted (article 418, para. 2 C.C.Q .), which was $10,641.95 in 2003; [2] - third, because the initial contribution ($20,700) and its increase in value to 2003 ($10,641.95) were reinvested in the second family residence, he should have added the further increase in value of these amounts for the period between 2003 and 2014, the latter being the date at which he calculated the net value of the family patrimony (article 418, paras. 1 and 2 C.C.Q .).

This increase in value was $49,050.15. [3] [ 34 ] Thus the total deduction associated with the initial contribution from the gift in 1994, in light of its increase in value down to 2014 when the second family residence was evaluated at $513,000, is $80,392.10: ($20,700 + $10,641.95 + $49,050.15). [ 35 ] As a result, the net value of the family patrimony prior to any consideration of the appellant’s request for unequal partition is $192,607.90, calculated as follows: $513,000 [the value of the second family residence] - $241,000 [the hypothecary loans outstanding for its acquisition] - $80,392.10 [the present value of her initial contribution from the gift] + $1,000 [the value of the furniture].

From this total of $192,607.90, one-half is owed by the appellant to the respondent, should equal partition be ordered: $96,303.95. The judge had erroneously set the net value at $252,300 and the one-half share the appellant owed at $126,150. [ 36 ] This amount should be corrected, subject to the request for unequal partition. I B The refusal to grant unequal partition of the family patrimony [ 37 ] After reviewing the law applicable under

article 422 C.C.Q ., the judge concluded that the respondent may well have contributed less than his wife to the value of the property in the family patrimony but, on the balance of probabilities, the appellant had not shown such a fundamental lack of contribution that it would constitute an “economic fault” in the circumstances. On this point he wrote: [72] The Father says that he paid bills as well as the Mother and he says, contrary to the Mother’s evidence, that she was saving her money and not paying the bills, although he admits that she paid the telephone, hydro and taxes on the first family residence.

[73] However, again to prove a claim for unequal division of family property, there must be economic fault. The Mother would have the Court believe that throughout the course of this 19 year marriage, she controlled all of the family’s finances and at no time did the Father make any contribution.

The Father says he deposited his salary in the Royal Bank of Canada account to which the Court understands both he and the Mother had access. [74] The Court determines that whatever the level of the Father’s contributions may have been, this became an accepted norm between the couple and so despite any inequality in contributions, such a situation did not constitute economic fault of the type required for unequal division of the family assets. [75] In Court, the Mother appears as a confident, articulate and no nonsense person who would not be pushed around. The Father said as much in his evidence.

The Mother had her two brothers in City A, one of whom was in car sales and the other in accounting. The Mother herself testified that she did not ask the Father for any financial contributions. [76] The couple were married for 19 years.

While the son, because of his age, may not have known much about the financial situation, the Court is perplexed as to why the eldest daughter was not called as a witness on behalf of the Mother, nor did any evidence come from either of the brothers on this issue of economic fault. [77] In these circumstances, where the Mother both controlled all of the finances and herself alleges that she did not ask for any contributions from the Father, while the Father at the same time contradicts her and says he made contributions, the Court cannot determine on the balance of probabilities that the Mother’s assertions are proven for economic fault. [78] Accordingly, her claim for unequal division of family property cannot be maintained. [Emphasis in original] [ 38 ] The appellant asks that the judge’s order for equal partition be overturned and that the Court declare that she be entitled to outright ownership of the family residence. [ 39 ] She advances three broad arguments in support of her contention that the judge erred in refusing to grant her unequal partition: first, that the judge failed to recognize that the respondent’s physical and psychological mistreatment of her, that she characterizes as abusive, is grounds here for unequal partition; second, that the judge erred in law when he wrote that the appellant had accepted his low level of contribution and could not now raise it as grounds for unequal partition; and third, that he erred in fact in the measure of the respondent’s contributions to the family patrimony, which were negligible. [ 40 ] On the first point, the Court rejects the argument that the judge erred in law by failing to consider the husband’s abusive conduct under

article 422 C.C.Q . [ 41 ] The judge was not wrong to insist on the economic character of the fault that justifies unequal partition of the family patrimony: see M.T. v. J.-Y.T. [4] That said, it is not wrong to say that economic fault relevant to

article 422 C.C.Q. should not be cast too narrowly. While unequal partition is not a remedy for physical or psychological abuse in marriage per se , “economic fault” may well result from physically abusive conduct when an aggressor spouse takes advantage of power wielded over his or her spouse to avoid financial and other responsibilities relevant to marriage as a joint economic endeavour.

Where a relationship is marred by the fundamental inequality reflected in on-going physical or psychological abuse, it is possible that that same imbalance will find expression in the spouses’ financial lives and thus be relevant for the purposes of determining whether unequal partition of the family patrimony should be ordered under

article 422 C.C.Q . [ 42 ] In this case, however, the judge found that the appellant controlled family finances completely, and was able to arrange the family’s affairs to her own apparent advantage by registering property in her name and the like. This suggested to the judge, who had the advantage of hearing all of the evidence on point, that there were no grounds from ordering unequal partition.

His determination as to the appellant’s preeminent role in managing the finances did not preclude the possibility that she paid most of the bills because her husband mistreated her, as she has alleged, and that he left her to fend for the financial needs of the family on her own as part of that alleged mistreatment. But the judge did not find this to be the case. [ 43 ] Indeed, it bears mentioning that the judge was careful not to make direct findings of fact on the allegations of spousal abuse levelled at the respondent.

In his account of the facts, he limited himself to describing the allegations made by the appellant in her testimony. The judge did find the respondent to be in bad faith when he refused to execute the waiver of his rights before the notary, but on its own, this did not constitute economic fault for the judge and we see no reviewable error on this narrow point. This Court is not in a position to go further, giving the state of the record on appeal and the conflicting testimony on whether abuse occurred. [ 44 ] But however serious the allegations of abuse may be, the matter is not decisive here.

With respect, the Court is of the view that the judgment reflects an error of law that meant the judge misread the importance of the unequal contributions the spouses made to the family patrimony. [ 45 ] The judge wrongly suggested, in paragraph [74] quoted above, that the parties could arrange their financial affairs in a manner contrary to the requirement that both spouses contribute to the expenses of the marriage in proportion to their respective means.

The Court is respectfully of the view that the judge erred when he suggested that the wife had accepted her husband’s low levels of contribution and, as a result, she could not raise the matter in support of her demand for unequal partition. [ 46 ] The judge recognized that the spouses’ contributions were not identical, and rightly decided that identity of contribution is not the measure required by the Civil Code of Québec . [ 47 ] The comment in paragraph [74] suggests however that an “accepted norm between the couple” can settle the amount of a spouse’s contribution to marriage as a joint economic endeavour.

Spouses do not of course have to make rigorously equal contributions, and are of course free to arrange the manner in which, together, they take in hand the “moral and material direction of the family” inside

and outside the home. But a spouse cannot bargain away the right to share these financial and non-financial responsibilities with his or her spouse. [5]

Article 396 C.C.Q. – a rule of public order – requires them both to “contribute towards the expenses of the marriage in proportion to their respective means / contribuent aux charges du mariage à proportion de leurs facultés respectives”. [ 48 ] In the same way, the judge’s comment in paragraph [75] to the effect that the appellant did not ask her husband to pay the bills – contested as a matter of fact – can have no bearing on measuring the consequences of the respondent’s failure to contribute to the expenses of the marriage as the basis for a claim under

article 422 C.C.Q . [ 49 ] Did the respondent fail to contribute to the “expenses of the marriage / les charges du marriage” in a manner that would justify the unequal partition of the family patrimony?

Was the “accepted norm between the couple” so exceptionally out of step with the respondent’s public order duty to contribute financially and otherwise in proportion to his means that it constitutes an “economic fault” as that concept was explained by the Supreme Court in M.T .? [ 50 ] The appellant submits that the judge committed a palpable and overriding error of fact in concluding at paragraph [77] that there was insufficient evidence that the respondent failed to contribute to the marriage as a joint economic endeavour in a manner that constitutes an economic fault under

article 422 C.C.Q. She points to the judge’s own findings of fact in relation to his award of a compensatory allowance that indicate that “the Mother has proven an exceptional effort both on the home front and working outside the home” (para. [87]). He found further that if it had not been for the mother’s exceptional efforts, the family would not have acquired property, including the family residence (para. [88]). [ 51 ] These are the very same contributions that the appellant cites and ties to the acquisition and upkeep of the first and second family residences. [ 52 ] We agree with the appellant.

The judge’s view that the parties could fix acceptable norms for contribution between them meant that evidence of the disproportionately weak contribution by the respondent to the family patrimony was wrongly discounted by the judge under

article 422 C.C.Q. [ 53 ] In respect of the compensatory allowance, the judge did recognize a significant imbalance in contributions. The judge wrote: [86] For the following reasons, the Court determines that the Mother is entitled to a compensatory allowance for the reasons given. [87] The evidence in the present case is very particular.

On the issue of contributions of both spouses, the Court is satisfied that the Mother has proven an exceptional effort both on the home front and working outside the home : at the parents’ restaurant as well as on the revenue property. [88] At the same time, the evidence demonstrates the Father’s lack of transparency in disclosing his true financial affairs to the Court. It is clear that had it not been for the Mother’s exceptional efforts both practically and because of her financial acumen, the parents would never have acquired the family residence nor the revenue property.

However, and more particularly for the purposes of compensatory allowance, the Court is satisfied that the Father has accumulated assets which he has not disclosed and for which the Court has no way of determining the exact amount.

Accordingly, such assets are not accounted for either in family patrimony nor in partnership of acquests. [89] The evidence is clear that because of all the responsibility taken on by the Mother the Father has been able to work outside the home and acquire assets which he has not disclosed. [Emphasis added] [ 54 ] These findings, while they formally relate to the compensatory allowance, speak explicitly as well to contributions made to the acquisition and upkeep of the family residence. In our view, in light of the public order duty in

article 396 C.C.Q. that the judge wrongly discounted, these findings justified the demand by the appellant for unequal partition of the family patrimony. [ 55 ] In sum, and with respect for the contrary view, an order of unequal partition of the family patrimony is justified by the combination of the judge’s error of law in respect of the public order requirement of the respondent’s contribution to the family patrimony and of the contradictory findings of fact as to his failure to contribute thereto in accordance with his means. [ 56 ] Noting that the judge ordered an amount of $40,000 as a compensatory allowance in respect of the spouses’ respective contributions to the matrimonial regime, and mindful that the Court must arbitrate based on the file as constituted, we hold that an additional amount of $20,000 should be awarded to the appellant under

article 422 C.C.Q . II Forfeiture of acquest property [ 57 ] The judge rejected the appellant’s demand that her husband’s share of her acquests be forfeited pursuant to

article 471 C.C.Q . She had made two arguments in support of her request: first, forfeiture was justified by his alleged “complete absence of contribution to the revenue property” and, second, that the respondent had intentionally concealed his own acquest property with a view to avoiding partition with his wife. [ 58 ] The judge wrote:

[120] In these circumstances, the Court determines that the Father’s contributions in regard to the revenue property were of the most minor nature. However, the evidence does not disclose any misappropriations, wastage or bad faith administration by him of the revenue property sufficient to warrant the exceptional penalty of forfeiture . Hence, this claim by the Mother cannot succeed. [Emphasis added] [ 59 ] With respect for the judge, this was an incomplete answer to the appellant’s request to impose the sanction of forfeiture of the right to a share of acquest property. [ 60 ]

Article 471 C.C.Q. provides: 471. A spouse who has misappropriated or concealed acquests, wasted his or her acquests or administered them in bad faith forfeits his or her share of the acquests of the other spouse. 471.

Un époux est privé de sa part dans les acquêts de son conjoint s’il a diverti ou recelé des acquêts, s’il a dilapidé ses acquêts ou s’il les a administrés de mauvaise foi. [ 61 ] The Code imposes forfeiture not only in circumstances in which a spouse misappropriates, wastes or mismanages the acquests of the other spouse as the judge suggested, but also when that spouse wilfully conceals his or her own acquests. [6] [ 62 ] That is what the appellant alleged, at least in part, in the circumstances.

She claimed that the respondent had hidden his acquest property from her, by sending it to his relatives abroad or by otherwise concealing it from her view. [ 63 ] Did the respondent conceal his own acquest property within the meaning of

article 471 C.C.Q . such that he should be considered to have forfeited his right to a share of the acquest property of the appellant? [ 64 ] It may be recalled that the judge was harsh with the respondent. He described him as having shown a “lack of transparency in disclosing his true financial affairs to the Court” (para. [88] quoted above). The judge wrote that there was no way of knowing what the respondent’s assets actually were. The matter is rightly viewed as a serious one.

Indeed, the judge was similarly harsh with the appellant, noting that she too lacked transparency in failing to disclose an amount of $30,000 of jewelry in her statement of the partnership of acquests (para. [107]). [ 65 ] The authorities are clear, however, that the failure to disclose acquests must be done with proof that it was done with fraudulent intent to remove property from the partition of the mass of acquests. [7] It is not enough that non-disclosure result from sloppiness or error. [8] A disinclination to share is not consonant with fraudulent intent. [ 66 ] The Court notes that the judge, who was ready to chastise the parties for their lack of transparency both in respect of their stated income and their assets, did not characterize their conduct as fraudulent.

The evidence in the record is insufficiently detailed to allow the Court to determine whether one – or both – of the spouses had the intent required by the cases decided under

article 471 C.C.Q. in the circumstances. The highly imperfect account of this 19-year marriage as evinced by the record on appeal, and the fact that both spouses appear to have conducted themselves in less than a forthright manner, the Court feels it prudent not to disturb the judge’s decision to reject the appellant’s demand for forfeiture. III The costs of supervised access [ 67 ] The appellant says the judge erred in holding that the costs associated with the exercise of the respondent’s access rights to their daughter should be shared between the ex-spouses equally.

She states that the matter had been aired at the hearing and that the judge had took note that the respondent agreed to pay these costs himself. [ 68 ] On this point, the judge wrote: [9] To ensure that both parents work toward improving this relationship, the Court will require that the costs for this supervised access be borne: one half by the [respondent] and one half by the [appellant].

This way, there is an incentive for both parents not to denigrate the other parent but rather for each to promote the parental relationship of the minor daughter with the [respondent]. [ 69 ] The judge made no reviewable error here.

Matters relating to the custody of children are inherently discretionary, and appellate courts must show deference to the judge who heard the parties and considered the impact of custody arrangements on a child’s best interest. [9] In the present circumstances, the judge was by no means bound by the respondent’s undertaking to pay these costs if he thought shared costs might encourage the parties to improve their relationship as parents and was of benefit to the child.

IV The compensatory allowance [ 70 ] At the hearing on appeal, both parties recognized that the outcome of their respective positions relating to the family patrimony and the partnership of acquests might have an impact on the judge’s order that the respondent pay a compensatory allowance of $40,000. [ 71 ] The judge expressly wrote that the compensatory allowance could not be ordered in respect of the acquisition of property that is already subject to the rules of the family patrimony (para. [84]).

This is indeed the case: as Beauregard, J.A. wrote in Droit de la famille – 3415 , where a court orders unequal partition of the family patrimony it cannot, as a general rule, order payment of a compensatory allowance if the claimant seeks compensation for unjust enrichment in respect of property in the family patrimony. [10] That is more properly attended to as a claim for unequal partition under

article 422 C.C.Q .

[ 72 ] The judge did, however, order a compensatory allowance in favour of the appellant based on the respondent’s unjust enrichment in respect of the revenue property, which stood outside the family patrimony.

This was consonant with his determination elsewhere that the respondent’s contributions to the revenue property were of a “most minor nature” (para. [120]) and the doubt he expressed in respect of the respondent’s credibility as to the contributions he claimed to have made to this main asset in the mass of the appellant’s acquests (para. [118]). [ 73 ] In that sense, his decision to order a compensatory allowance in the appellant’s favour as it bore upon the cost and upkeep of the revenue property was well founded. [ 74 ] As noted above, the appellant’s request for forfeiture of this property was refused by the judge and this Court has confirmed that conclusion, albeit for different reasons. [ 75 ] In the circumstances, the partition of the acquest property in favour of the respondent, as non-owner of the revenue property, creates a circumstance of unjust enrichment to which

article 427 C.C.Q . applies. Indeed, the legislature expressly provides in that provision that the court should take into account the “advantages of the matrimonial regime / des avantages que procur[e] le régime matrimonial”.

In the present case, without a compensatory allowance, the respondent’s right to 50% of the net value of the revenue property under the matrimonial regime would wrongly reward him for failing to make proper contributions to the marriage as a joint economic endeavour. [ 76 ] On that basis, the Court confirms the judge’s order of a compensatory allowance in the amount of $40,000, even recognizing that the amount awarded for unequal partition of the family patrimony resulted from his failure to contribute to the family residences, not the acquest property.

That amount finds ample support in the evidence. [ 77 ] The forgoing are the reasons for judgment rendered at the hearing on February 2, 2018. NICHOLAS KASIRER, J.A. MANON SAVARD, J.A. MARTIN VAUCLAIR, J.A.

Mtre Joseph Neudorfer Sarna Neudorfer For Appelant Mtre Lorianne Raposo For Respondent Dates of hearings: February 1 and 2, 2018 [2] The increase in value of the $20,700 down-payment between 1994 and 2003 is calculated as follows (art. 418 para. 2 C.C.Q. ): [3] The increase in value of the reinvestment of the original contribution and of its increase in value to 2003 between 2003 and 2014 is calculated as follows (art. 418, paras. 1 and 2 C.C.Q. ):