2019 QCCA 443, 2019 QCCA 443

Fuelscher c. Fuelscher 2019 QCCA 443 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027333-186 (540-17-011522-157) MINUTES OF THE HEARING DATE: March 14, 2019. CORAM: THE HONOURABLE Allan R. hilton , J.A. geneviève marcotte , J.A. mark Schrager , J.A. APPELLANT COUNSEL kayla fuelscher anthony maitland m tre Mark E. Wener RESPONDENT COUNSEL Georg Fuelscher Mtre Katherine-Anne MacLeod IMPLEADED PARTY COUNSEL THE ESTATE OF THE LATE JUNE-ALLISON MAITLAND ABSENT

On appeal from a judgment rendered on January 26 2018 by the Honourable Justice Johanne Mainville of the Quebec Superior Court, district of Laval. Deferred Application for Permission to Present New Indispensable Evidence. DESCRIPTION : Family Law – Family Patrimony – Succession. Clerk: Stephane Robinson Courtroom: Pierre-Basile-Mignault (RC.08) HEARING 11:08 Commencement of the hearing.

Identification of counsel. 11:09 Commentary by the Court. 11:10 Exchanges between Justice Hilton and Mtre Wener . 11:11 Mtre Wener submits to the Court three copies of his Appellant’s outline of pleadings. 11:42 Submissions by Mtre Macleod. 11:52 Reply by Mtre Wener. 11:53 Suspension of the hearing. 12:19 Resumption of the hearing. 12:19 BY THE COURT: The Court’s judgment will be rendered on the minutes of the hearing by the end of the day or at the Court’s earliest convenience next week. 12:19 Conclusion of the hearing. (

s) Stephane Robinson Clerk BY THE COURT JUDGMENT [ 1 ] The motion to present new evidence does not disclose any document that could not have been brought before the Court of first instance with the appropriate diligence. As such, the evidence is not new and its production will not be allowed so that the motion will be denied. [ 2 ] On the merits of the appeal, our intervention is required on one matter that may not have been properly presented to the judge at trial. [ 3 ] At paragraph 45, the judge correctly determined that as at the death of his late wife (November 21, 2011), Respondent would be

entitled to $70,396 (his increased interest in the house from the date of the marriage) and $7,306 as his half of the net value of the house at said date. [ 4 ] The judge went on to determine that Appellants owed Respondent $10,749.50 for expenses (e.g. taxes, mortgage etc…) as co- owner of the house.

However, her analysis did not continue so as to take into account the increase in value of the house after death which increase should be shared equally by the Appellants and the Respondent as co-owners. [ 5 ] The available evidence indicates a value at trial of $302,000 (per the tax bill) less the value at the wife’s death of $255,000 yielding an increase of $47,000 to be shared by the parties.

The mortgage payments by the Respondent were already taken into consideration by the judge. [ 6 ] Thus, rather than the Appellants owing the Respondent $3,443.00, the Respondent who keeps the house owes the Appellant $20,057 ($23,500 - $3,443). [ 7 ] Paragraph 108 of the conclusions of the judgment will be modified accordingly.

FOR THESE REASONS, THE COURT: [ 8 ] DISMISSES the motion to introduce new evidence; [ 9 ] ALLOWS the appeal in part for the sole purpose of striking paragraph 108 of the judgment to be replaced by the following: [108] ORDERS Plaintiff to pay Defendants the sum of $20,057.00, with interest at the legal rate commencing 30 days from judgment. [ 10 ] DECLARES that each party assumes its legal costs in appeal. Allan R. hilton , J.A . geneviève marcotte, J.A. mark Schrager, J.A.