2014 QCCA 193, 2014 QCCA 193

Unofficial English Translation Droit de la famille — 14146 2014 QCCA 193 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-023593-130 (540-12-015166-093) DATE: FEBRUARY 3, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. N. N. APPELLANT / INCIDENTAL RESPONDENT – Plaintiff v. G. P. RESPONDENT / INCIDENTAL APPELLANT – Defendant JUDGMENT I INTRODUCTION [ 1 ] The appellant, N.

N., appeals from several conclusions in the judgment of the Superior Court (the Honourable Madam Justice Guylène Beaugé) rendered on April 16, 2013, as corrected on May 13, 2013, granting his divorce from the respondent G. P., who has formed an incidental appeal and is also requesting a review of several conclusions. [ 2 ] At the appeal hearing, the parties agreed on two of the questions at issue. Before considering the other issues, a brief review of the relevant facts is necessary. II FACTS AND PROCEEDINGS [ 3 ] The respondent is now 58 years old, and the appellant is 50.

They started seeing each other in 1992 and began living together in 1994. At that time, the respondent was the mother of two children. The appellant insisted on her being a homemaker and having another child. Although she was initially hesitant, she agreed, on the condition that the appellant would look after her financial security and that of their future child. [ 4 ] The parties’ child was born on ..., 1996. [ 5 ] On September 19, 1997, the appellant and the respondent married.

Their union was governed by the rules of the regime of partnership of acquests. [ 6 ] When the parties met, the respondent was receiving social assistance and earned tips working at the coat check in a bar. She has a Secondary V education. During the marriage, she did not work outside the family residence. She did, however, receive a salary that the appellant paid her through a company.

She used this salary to buy food for the family, among other things. [ 7 ] The appellant was a self-employed chartered accountant, a profession he still practises. [ 8 ] When the parties wed, the appellant was the owner of the family residence located in City A. The home was encumbered by a $57,173 mortgage to secure a loan the appellant had taken out in 1995 before the marriage to buy shares in a company that were resold in 1996 to a second company he owned. The loan was repaid in full during the marriage. [ 9 ] The appellant also owned a life insurance policy at the time of the marriage.

[ 10 ] On November 8, 2007, the respondent brought proceedings for separation from bed and board, [1] arguing that the spouses had definitively ceased living together on October 20, 2007. The court ledger shows that no useful steps were taken to further the progress of the file and no judgment was rendered on the merits. [ 11 ] In the context of this action, the parties negotiated a settlement agreement regarding the division of family property.

They then decided to maintain the same family economics, whereby the appellant paid the expenses for the family residence and continued paying the respondent a salary. [ 12 ] In May of 2009, following a call to the police, the appellant was expelled from the residence where he had lived up to that point with the respondent. On this same occasion, the police seized some weapons. The appellant subsequently mandated an attorney to contest their destruction, an action that was successful. [ 13 ] On May 14, 2009, the appellant brought divorce proceedings on the basis that they had ceased to live together.

In his action, he sought the division of family property from the date alleged by the respondent in her proceedings for separation from bed and board, namely, October 20, 2007. He also requested joint custody of the child born from their union, to whom he offered to pay child support. [ 14 ] On October 23, 2009, Casgrain J. rendered judgment on interim relief in the divorce action. [2] He granted the respondent use of the family residence and ordered the payment of $6,034 annually in support for the parties’ child. Custody of this child was awarded to the respondent.

Finally, the appellant was ordered to pay $5,720 annually in support for the respondent. The appellant thereupon stopped paying the respondent a salary. [ 15 ] On October 27, 2009, in her defence and counterclaim, the respondent sought custody of the child and payment of support for herself. She also requested $5,000 for interim costs.

The division of property should, in her opinion, be established from the date that divorce proceedings were brought, that is, in May of 2009, not October 20, 2007, which is the date alleged to be when the spouses ceased living together in the proceedings for separation from bed and board. [ 16 ] On that same date, counsel for the parties came to an agreement and designated a joint expert whose task it was to assess the value of the shares held by the appellant in two companies: “[Company A]” and “[Company B]”.

According to that agreement, ratified by Fournier J., as he then was, of the Superior Court: [ translation] 5.

The accountant’s expert fees shall be paid by the plaintiff, and the defendant shall reimburse him in the proportion determined by the trial judge. [ 17 ] In fact, the appellant paid $4,486.78 for the preparation of the joint expert report. [ 18 ] On January 27, 2010, the appellant filed his reply and defence to counterclaim in which he claimed that he had no obligation to pay support to the respondent or interim costs. [ 19 ] On July 28, 2010, the parties agreed to vary custody, which was thenceforth assumed by the appellant.

The respondent agreed to leave the family residence no later than August 31, 2010. [ 20 ] On November 7, 2010, following a quarrel between the parties, the respondent called the police and filed a complaint for assault, claiming that the appellant had spit in her face. The appellant was prosecuted by

summary conviction (subsection 266 (

b) Cr. C. ), but was acquitted on December 21, 2011. [3] [ 21 ] On December 7, 2010, Caron J. rendered judgment from the bench, varying the interim relief and increasing the support due to the respondent to $16,200 annually, since she no longer had the use of the family residence.

III THE SUPERIOR COURT JUDGMENT [ 22 ] After a few postponements, including one at the appellant’s request on September 8, 2010, to which the respondent agreed, and another on November 14, 2011, because of a crowded trial calendar, the hearing on the merits took place on June 14 and 15, 2012, before Beaugé J., who reserved judgment in the matter. [ 23 ] On June 28, 2012, the judge wrote to the parties advising them that she intended to re-open the inquiry because she believed that the correct date for the division of property was the date on which divorce proceedings had been brought in May of 2009, whereas the property valuation submitted by the parties was done as at October 20, 2007, the date alleged by the respondent in her proceedings for separation from bed and board as being that on which the parties ceased living together. [ 24 ] After the re-opening of the inquiry, the attorneys wrote to the judge concerning the valuation of the property in the family patrimony and the partnership of acquests.

On November 14, 2012, the inquiry was re-opened and the parties then filed the requested evidence and argued in that regard. [ 25 ] On April 16, 2013, five months after the re-opening of the inquiry and 10 months after the end of the first part of the trial, the judge rendered judgment, granted the parties a divorce and ruled on their various other requests. [ 26 ] The judge began by accepting the respondent’s argument that the date for the division of the family patrimony and the partnership of acquests should be the date on which the divorce proceedings were brought, rather than the date on which the parties ceased living together. [ 27 ] The judge justified her choice because of the ties that were maintained between the parties up until divorce proceedings were

brought and the fact that they continued their social activities as a couple during that same period. As for the economic ties, the judge noted that the parties’ method of operating during their marriage remained the same until the 2009 judgment on interim relief. The appellant therefore continued to pay the respondent a salary, which she used to buy food for the whole family. She also did the household chores, as she had done throughout the time they lived together. [ 28 ] The judge awarded the respondent spousal support in the amount of $1,100 per month, indexed May 1 of each year, pursuant to

article 590 C.C.Q . After detailing the jobs the respondent had held since the parties met, and taking into account the agreement between the parties concerning each other’s contribution to family life, the judge found that there was an obvious relationship of economic dependence between the parties.

As for the claim for interim costs, it was found to be well founded, to a maximum of $7,000, [4] given the respondent’s limited financial resources and, inter alia , the appellant’s behaviour throughout the proceedings and the scope of these proceedings. [ 29 ] As for the family patrimony and the partnership of acquests, the judge sentenced the appellant to pay the respondent a total of $146,263.72.

This aspect of the dispute was rendered more complex on account of the mortgage taken out by the appellant before the marriage that encumbered the family residence – an asset included in the family patrimony – to buy shares in two companies related to the practice of his profession as an accountant, which companies constituted property included in the partnership of acquests. Regarding this last aspect, the judge did not take into account the respondent’s consent, during the pleadings, to considering the appellant’s shares as private property. [ 30 ] The judge also divided the appellant’s RRSP.

Following a technical error, the amount to be rolled into an RRSP was amended by corrigendum and set at $20,794.18. [ 31 ] The judge dismissed the claim for damages filed by the appellant against the respondent, [5] which was divided into three parts : (

i) the reimbursement of extrajudicial fees incurred as a result of the criminal complaint filed by the respondent, (ii) compensation for damage to the family residence caused by the respondent while she was using it and for the disappearance of certain pieces of furniture, and (iii) compensation for trouble and inconvenience suffered because of the respondent’s behaviour.

The judge found that there was insufficient evidence on the first two, and an absence of fault on the respondent’s part on the third. [ 32 ] Finally, the judge decided that the interest and additional indemnity would be calculated based on the amount due to the respondent by the appellant from the date on which the proceedings were brought.

IV PARTIES’ PARTIAL AGREEMENT [ 33 ] As stated in paragraph [2], the following questions are not really at issue: • The cash surrender value of an insurance policy, which the judge erroneously characterized as private, and which the appellant acknowledges as private property subject to compensation in the amount of $2,173.48; • The judge should not have allowed the appellant’s action with costs against him, and the Court should rule on the appeal and the incidental appeal without costs. [ 34 ] This leaves the remaining issues in dispute to be resolved. V ANALYSIS OF THE PARTIES’ OTHER GROUNDS OF APPEAL

(1) The date accepted for the division of the partnership of acquests and the family patrimony [ 35 ] The judge chose May 13, 2009, the date on which the divorce proceedings were brought, to calculate the division of family patrimony and partnership of acquests. The court ledger for the file, however, shows that the proceedings were in fact filed on May 14, 2009. Therefore, from the judge’s perspective, she should have chosen that date, and not the date that appeared on the motion.

That being said, the appellant asserts that the accepted date should have been the date alleged by the respondent in her proceedings for separation from bed and board to be when the parties ceased living together – October 20, 2007. In the appellant’s opinion, the judge erred by concluding otherwise because the parties, since that date, have maintained only an economic relationship because of a settlement agreement for corollary relief in the context of the proceedings for separation from bed and board.

The appellant’s position, if accepted, would have a major impact on the division of family patrimony and partnership of acquests. [ 36 ] Considering the economic relationship existing between the parties during the proceedings for separation from bed and board and when divorce proceedings were brought, the respondent submits that the judge properly exercised her discretionary power by accepting the date of the divorce proceedings to assess the value of the property being divided. [ 37 ]

Article 417 C.C.Q . provides the following concerning the determination of the net value of the property composing the family patrimony for purposes of effecting a division under

article 416 C.C.Q. :

417. La valeur nette du family patrimony est établie selon la valeur des biens qui constituent le patrimoine et des dettes contractées pour l'acquisition, l'amélioration, l'entretien ou la conservation des biens qui le constituent à la date du décès de l'époux ou à la date d'introduction de l'instance en vertu de laquelle il est statué sur la séparation du corps, le divorce ou la nullité du mariage, selon le cas; les biens sont évalués à leur valeur marchande.

Le tribunal peut, toutefois, à la demande de l'un ou l'autre des époux ou de leurs ayants cause, décider que la valeur nette du family patrimony sera établie selon la valeur de ces biens et de ces dettes à la date où les époux ont cessé de faire vie commune. 417.

The net value of the family patrimony is determined according to the value of the property composing the patrimony and the debts contracted for the acquisition, improvement, maintenance or preservation of the property composing it on the date of death of the spouse or on the date of the institution of the action in which separation from bed and board, divorce or nullity of the marriage, as the case may be, is decided; the property is valued at its market value.

The court may, however, upon the application of one or the other of the spouses or of their successors, decide that the net value of the family patrimony will be established according to the value of such property and such debts on the date when the spouses ceased living together. [ 38 ] In order to apply the exception in the second paragraph of

article 417 C.C.Q. , case law requires definitive, even irrevocable, [6] proof that the spouses have ceased living together, as well as settlement of the economic consequences of the marriage breakdown. [7] [ 39 ] The judge’s conclusion is based primarily on the spouses’ economic operating method after October 20, 2007.

She noted that the operating method that prevailed between the parties during their marriage remained unchanged until the judgment rendered on October 23, 2009, by Casgrain J. on interim relief in the context of the divorce proceedings. [8] The appellant thus paid the respondent a salary that she used to buy groceries for the whole family.

She also did the household chores, as she had done throughout the union. [ 40 ] The appellant maintains, for his part, that he agreed to keep the same economic relationship with the respondent only because he was negotiating an out-of-court settlement for corollary relief through his attorney.

In the Court’s opinion, however, ceasing to live together must be accompanied by a settlement of the economic consequences of the marriage breakdown, which was clearly not the case here, given the subsequent negotiations, their failure and the institution of divorce proceedings. [ 41 ] This ground of appeal must be rejected, except to substitute the date of May 14, 2009, for that of May 13, 2009, everywhere it appears in the Superior Court judgment.

(2) Division of property [ 42 ] The judge included the divisible value of the family residence, taking into account the balance of the mortgage ($109,065) among other things. Furthermore, she included the net value of the appellant’s two companies ($154,725) in the divisible acquests. [ 43 ] The appellant maintains that the judge thereby committed an error. Indeed, it was proved that the shares of the appellant’s companies had been purchased and paid for in full before the marriage.

It was also proved that the appellant was the sole owner of the family residence when the parties wed, but that this residence was encumbered by a mortgage at that time. [ 44 ] The main point at issue was concerning the inclusion of a portion of the net value of the shares in the companies, or a portion of the net value of the family residence, in the division of property. Only one of these two assets could be subject to division since the mortgage encumbering the residence was used to buy the shares. [ 45 ] This loan could not be considered a debt on both assets.

Either it was a debt affecting the family residence, in which case the shares were paid in full before the marriage and were the appellant’s private property and thus not subject to division, or it was a debt related to the purchase of the shares, in which case the family residence was paid for in full at the time of the marriage and therefore not subject to division. [ 46 ] During the hearing, the respondent informed the trial judge that she considered the shares in the appellant’s companies to be private property and no longer claimed their division in the context of the liquidation of the partnership of acquests. [ 47 ] The judge therefore committed a determinative error when she included the net value of the appellant’s companies in the divisible acquests while including the family residence in the family patrimony assets that were subject to division. [ 48 ] Consequently, the sum of $76,275.76 (namely $77,362.50 minus $1,086.74) should be deducted from the order to pay appearing in paragraph [70] of the judgment under appeal.

(3) Increase in spousal support and setting of a term [ 49 ] On appeal, the respondent claims spousal support in the amount of $1,680 per month, adding alternatively that this amount should mandatorily be awarded to her should the Court find that the retained earnings and value of the appellant’s companies are excluded from the division of the partnership of acquests since these large amounts would not then be paid to her and would remain in the appellant’s patrimony. [9]

[ 50 ] The appellant maintains that the respondent did not make any effort to find a job and support herself. He also claims that the evidence shows that the respondent had some income that the judge failed to take into account in determining spousal support. Finally, he argues that not even a decrease in the value of the partnership of acquests in appeal could justify an increase in spousal support. He requests that the Court cancel the spousal support or, alternatively, set a term. [ 51 ] The trial judge determined spousal support based on the criteria in

section 15.2 of the Divorce Act , stating the relevant facts. She recalled the needs of the respondent and the significant means of the appellant, who earns $78,000 annually. She cited the traditional nature of their union, its length, and the respondent’s lack of training to enter the work force, which are all factors that prevented the respondent from developing her financial independence.

She concluded that the respondent was entitled to support without a term . [ 52 ] That being said, it should be recalled that when the parties met in 1992, the respondent was receiving social assistance and earned tips working at the coat check in a bar. From their wedding in 1997 until the respondent left the family residence, she took care of their young child and kept house, with the appellant’s consent.

There is no convincing evidence that the marriage adversely affected or reduced the respondent’s possibility of acquiring financial independence. [ 53 ] The respondent does not raise any error in the trial judgment awarding her monthly support in the amount of $1,100, indexed annually.

Essentially, she argues that the spousal support should be adjusted if the Court varies the division of property. [ 54 ] Despite the reduction in her share resulting from the division of the family patrimony and partnership of acquests, the Court finds that, all things considered, the amount of support awarded by the judge is still valid.

Subject to the other adjustments to be analyzed, the total of $69,987.96, with interest and the additional indemnity that the respondent will receive is a large sum that she can put to good use to adequately meet her needs. [ 55 ] The appellant contends that the judge should have imposed a term on spousal support in order to prompt the respondent to take more steps to find employment, emphasizing her testimony before the judge on June 15, 2012: [ translation ] Q. O.K.

Now, Madam, you said earlier in your testimony that: [ translation ] “I would like to receive support for a reasonable time so that I can find something,” Alright, or words to that effect… I do not want to misquote you. How long do you expect it would take you to actually do that since you are taking active steps? A. Hmm, hmm. Q. … then how much time would it take you to find something, to find more cleaning jobs? Because I think that this is your objective, to find houses to clean. A. Well, I think that it is … Q. O.K., yes. A. … what is easiest for me. Q. But how do you see things?

How much time would it take for you to be able to find enough cleaning jobs to meet your needs ? A. I could find something in less than three maybe four months . [Emphasis added.] [ 56 ] The respondent argues that a term is imposed on spousal support only in rare circumstances and that the Court should not intervene given the deference required in such cases.

In this regard, the Court shares the judge’s opinion that in the circumstances that she described, there was no need to impose a term for the time being. [ 57 ] While it is true that a term is rarely imposed, it is nevertheless also true that more than 19 months have passed since June 15, 2012, and, despite the above-quoted statement, the respondent is still unemployed today and there is nothing to suggest that she is seriously trying to find a job. In fact, she claims that she is entitled to spousal support until she dies.

Should the judge have considered the possibility of imposing a term for review? [ 58 ] Regarding this matter, the Court has had the opportunity of analyzing the circumstances that could justify imposing a term for review in Droit de la famille -12103 : [10] [ translation ] [9] Recently our Court wrote the following in Droit de la famille — 122110 : [ translation ] [70] The solution selected by the Superior Court judge is consistent with the teachings of scholarly commentary and judicial legislation.

In Droit de la famille québécois , Mtre Dominique Goubau writes: [ translation ] In Quebec, the courts tend increasingly to resort to this solution, which seems, in fact, to be particularly apt when it is a matter of prompting a party to take specific steps (in the area of education or employment, for instance) or when one wishes to verify progress in an uncertain situation . [Footnote omitted]

[71] Author Michel Tétrault concurs: [ translation ] The Court may provide for a review period when it considers that the efforts of the recipient of spousal support are not sufficient . [Footnote omitted] [72] The author adds: [ translation ] An aging population, a shortage of workers in some areas, droves of baby-boomers retiring, their presence on the full-time and part-time job market are all elements that might lead one to conclude that it is possible to enter the job market at a mature age, which would allow the recipient of spousal support to acquire full or partial financial independence through training, where possible. [Footnote omitted] [73] Depending on circumstances, the Superior Court will impose a term for review to verify the efforts of the recipient of spousal support and to review, if need be, the resulting situation [Footnote omitted]. [10] In other words, without purporting to provide a complete picture, setting a term for review or reassessment is possible in situations that are transitory in nature or contain undetermined or uncertain elements or even when the idea is to encourage a person to take certain steps. [Citations omitted, emphasis added.] [ 59 ] The Court is of the opinion that the respondent needs to be encouraged to make serious efforts to see her statement before the judge (quoted in paragraph [55]) through to the end.

In such circumstances, it is appropriate to set September 1, 2014 as the term for review, to allow the respondent to determine if she still needs the spousal support of $1,100, with annual indexing, taking into account, among other things, her serious efforts until then to find a job that pays a living wage.

(4) Judge’s omission to rule on the division of the fees for the joint expert report and an increase in interim costs [ 60 ] The appellant argues that the judge erred by remaining silent concerning the division of the fees for the joint expert report because an interlocutory judgment rendered on October 28, 2009, had postponed its outcome. As a result, he proposes to share the expenses equally. The purpose of this expertise is described in the agreement between the parties and reads as follows: [ translation ] 2.

The accountant is mandated to prepare a report determining the value of the shares held personally by N. N. in “[Company A]” and “[Company B]” as at October 20, 2007, (the date when the spouses ceased living together, as stated in the motion for separation from bed and board) and as at May 14, 2009, (the date when the divorce proceedings were brought). [ 61 ] The respondent claims that this issue was settled incidentally by the judge when she awarded interim costs.

She therefore does not think that she should pay any part of these fees. [ 62 ] Of course, the trial judge did not rule expressly on the matter of sharing the fees for the expert. [ 63 ] The appellant is right in this regard. [ 64 ] First, both parties benefited from the preparation of this expert report, the accuracy of which was never challenged. [ 65 ] Furthermore, the judge analyzed the respondent’s application for interim costs and awarded her $7,000.

Contrary to the respondent’s argument, the judge did not mention the agreement entered into between the parties or the fact that the division of the joint expert fees was postponed by Fournier J., as he then was, of the Superior Court.

There is therefore no indication that the judge took the expert fees into account when assessing the amount of interim costs. [ 66 ] At the time of the trial, the appellant had already paid the cost of these services amounting to $4,486.78, in accordance with paragraph 5 of the agreement reproduced in paragraph [16] of this judgment. [ 67 ] There is no reason why the respondent should not pay half of these fees ($2,243.39).

The respondent’s only serious argument is that if the Court concurs with the appellant on the matter, it should increase the interim costs by the same amount so as not to reduce the aggregate amount that the appellant owes her. [ 68 ] That brings us to the respondent’s incidental action to increase the interim costs to $ 14,220.23. Since the application for interim costs was not appended to her statement, the Court is not aware of the grounds submitted in first instance by the respondent in support thereof. In appeal, the appellant does not dispute the order to pay $7,000.

In fact, he has paid this amount since the Superior Court judgment was rendered. [ 69 ] The respondent has not submitted any argument showing that the judge erred in principle or made a palpable and overriding error in her assessment of the evidence, which led her not to award the respondent $14, 220.23 for interim costs.

[ 70 ] Consequently, the respondent must reimburse the appellant the sum of $2,243.39, with interest from the date of the payment by the appellant of $4,486.78, and the incidental appeal should be dismissed.

(5) The appellant’s claim for damages [ 71 ] The judge heard contradictory evidence concerning the three parts of the appellant’s claim. [ 72 ] Regarding the claim for reimbursement of expenses incurred as a result of the criminal charge, we note first that despite the fact that the respondent’s complaint ended in an acquittal, the Crown took over this case in the Court of Quebec, Criminal and Penal Division. Before the appellant was charged, the file was necessarily reviewed, leading the Crown to believe that there was a possibility of proving beyond a reasonable doubt that the appellant was guilty of assault.

The frivolity of the respondent’s complaint is not established based merely on the fact that there was an acquittal. [ 73 ] The claim regarding damages to the family residence that the appellant found as soon as the respondent left was the subject of documentary evidence filed into the record by the appellant. It was completed by detailed testimonial evidence.

Each witness heard addressed the damages to the building and furniture as well as the disappearance of some pieces of furniture. [ 74 ] The judge preferred the testimony of the parties’ child to that of the appellant, who, in the judge’s opinion, had not discharged his burden of proof. Contrary to the appellant’s submissions, the child’s testimony is consistent in every respect with what the judge reported in her judgment.

He has not shown any palpable and overriding error in the assessment of the evidence, which could provide a basis for the Court to intervene. [ 75 ] The third claim concerns the trouble and inconvenience related to the respondent’s behaviour during the proceedings, i.e., his expulsion from the family residence following the criminal charge, which led him to live with his mother, and the inconvenience related to his involuntary departure. The judge dismissed his claims by writing that the appellant had failed to establish any wrongdoing on the part of the respondent at the time of the charges.

There is no error in this determination as the judge was in a better position than this Court to assess the evidence with regard to the matter. [ 76 ] That being said, in this type of family law case, where relations between the parties are obviously strained, counsel have the responsibility of not yielding readily to the demands of their clients and refraining from submitting damage claims that adversely affect the orderly progress of the case and minimize the possibility of an amicable settlement regarding corollary relief. [ 77 ] The appellant’s ground is dismissed.

(6) Starting date of order to pay interest and the additional indemnity [ 78 ] The appellant claims that he should not have been ordered to pay interest and the additional indemnity from the date on which divorce proceedings were brought given the prejudice he suffered due to the unusually long delay in the conduct of the proceedings, which he attributes to the respondent’s behaviour.

As an alternative, he seeks an order to pay from the final judgment only. [ 79 ] According to the respondent, nothing justifies departing from the principle that interest is added at the legal rate as well as the additional indemnity from the date on which proceedings are commenced. [ 80 ] Certainly, this case has been highly judicial.

Apart from the agreement on the joint appointment of an expert to assess the value of the shares held by the appellant in two companies, and the respondent’s consent to the appellant’s request for a postponement, everything else seems to have been contested. [ 81 ] A few years ago, the Court dealt with a similar issue in Droit de la famille – 10907 , [11] a case where the wife alleged, inter alia , that the trial judge had awarded interest and the additional indemnity to the husband as of September 8, 2004, on amounts that she had to pay him as a result of the division of family patrimony and partnership of acquests, that is, almost five years before the date of the judgment appealed on September 2, 2009. [ 82 ] In dismissing the wife’s claim, the Court (Chamberland, Rochette and Doyon JJ.A.) wrote: [translation] [25] The starting point for calculating interest is left up to the trial judge because damages bear interest “from the date of default or from any other later date which the court considers appropriate, having regard to the nature of the injury and the circumstances” (art. 1618 C.C.Q .).

The same is true for the additional indemnity set out under

article 1619 C.C.Q . [26] Our colleague Gendreau J. wrote the following: Family patrimony is a claim that arises with marriage and crystallizes upon its dissolution. This claim is civil in nature and, as a general rule, it should bear interest like any other claim. Indeed, this is only logical and fair. In fact, given that the value of the claim is determined on the date of institution of the proceedings or on the date when the spouses cease living together (art. 417 C.C.Q.), it follows that the debtor could have paid his or her debt or offered and recorded payment thereof from that point on.

This means that the creditor is thenceforth entitled to his or her capital and the proceeds that it may produce while, conversely, the debtor who benefited therefrom in his or her place without being entitled thereto. Therefore, I concur with the Superior Court on this issue. [27] The additional indemnity is generally awarded in accordance with this rule. [Emphasis added, citations omitted.] [ 83 ] According to the judge, the appellant applied to be exempted from paying any interest on the amount of the judgment because

[translation] “G. P. was late in perfecting her record and appealed the judgment on interim relief.” (para. [62] of the judgment). The judge ruled as follows: [translation] [63] These arguments do not justify departing from the rule that interest and the additional indemnity are added to the amount of any order to pay.

Moreover, it seems that the hearing on the merits of this case was supposed to be held in September of 2010, but that it was postponed at the husband’s request. [ 84 ] It does not appear that the judge analyzed the possibility of establishing the starting date for payment of the interest and the additional indemnity from the judgment date.

That being said, she followed the practice advocated by Gendreau J. in the excerpt cited from Droit de la famille – 10907 . [12] Of course, another judge could have given reasons for imposing interest and the additional indemnity from the judgment date, but that does not mean that the trial judge in this case improperly exercised her discretion in the matter. [ 85 ] This ground is dismissed.

VI DISPOSITION FOR THESE REASONS, THE COURT: [ 86 ] ALLOWS the appeal in part, without costs; [ 87 ] SETS ASIDE the judgment in part and amends the formal judgment of the Superior Court in the manner set out below in detail; [ 88 ] SUBSTITUTES the date of May 14, 2009, for the date of May 13, 2009 in paragraphs [69], [70], [71] and [72] of the disposition; [ 89 ] ADDS the phrase “with a term for review on September 1, 2014” at the end of paragraph [67] of the disposition; [ 90 ] SUBSTITUTES the amount of $69,987.96 for the amount of $146,263.72 in paragraph [70] of the disposition; [ 91 ] SUBSTITUTES the words “WITHOUT COSTS” for the words “WITH COSTS” in paragraph [77] of the disposition; [ 92 ] ORDERS the respondent to pay the appellant the sum of $2,243.39, with interest from the date on which the appellant paid the sum of $4,486.78 for the joint accounting expert report mentioned in paragraph 5 of the agreement entered into by the parties, which was confirmed by a justice of the Superior Court on October 28, 2009; [ 93 ] DISMISSES the incidental appeal, without costs.

JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. Mtre Carole Tremblay DUFOUR, MOTTET, AVOCATS For the appellant Mtre Robert Desmarais DESMARAIS & HARGREAVES For the respondent Date of hearing: November 28, 2013