2011 QCCA 980, 2011 QCCA 980

Droit de la famille — 111505 2011 QCCA 980 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020343-109 (450-12-024387-070) DATE: MAY 26, 2011 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. S. V. APPELLANT - Defendant v. J. D.

RESPONDENT - Plaintiff JUDGMENT [ 1 ] THE COURT: On appeal from a judgment of the Superior Court, District of Saint-François (the Honourable Madam Justice Suzanne Mireault), rendered on December 14, 2009, which granted a judgment of divorce between the parties and made various orders for corollary relief; [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Forget J.A., with which Bich and Kasirer JJ.A. agree; [ 4 ] ALLOWS the appeal for the sole purposes of: [ 5 ] DECLARING that Mr. S. V. is the owner of horse A; [ 6 ] DECLARING that Ms. J.

D. is the owner of horse B; [ 7 ] RESERVING Ms. J. D.’s rights to bring a claim for a balance of $3,850; [ 8 ] STRIKING paragraphs 217 and 218 of the judgment; [ 9 ] THE WHOLE WITHOUT COSTS in view of the circumstances. ANDRÉ FORGET, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. Mtre Louise Desautels For the appellant J. D. (absent) Respondent Date of hearing: March 24, 2011

REASONS OF FORGET, J.A. [ 10 ] Mr. S. V. appeals from a judgment of divorce rendered on December 14, 2009, which notably granted Ms. J. D.’s application for divorce, granted the parties shared custody of their children, ordered Mr. V. to pay child support, ordered the partition of the family patrimony, and dismissed the parties’ respective applications for compensatory allowance. [ 11 ] Mr. V. contests some of the trial judge’s orders for corollary relief. [ 12 ] Ms. D. did not file an appearance on appeal.

She did not file a factum and was not present for the appeal hearing, despite having been advised of its date, time, and place. She sent a letter indicating her intention not to attend. FACTS [ 13 ] Ms. D. was born on ..., 1964, and Mr. V. was born on ..., 1965. [ 14 ] On February 15, 1991, Mr. V. purchased a property located at ... Street A, City A, for $130,000. [ 15 ] In 1992, the parties began cohabitating. Ms. D. went to live with Mr. V. on Street A. At this time, Mr. V. owned two dogs, and Ms. D. owned two horses. [ 16 ] On May 1, 1995, the parties purchased in co-ownership a new residence located at ...

Street B, City B, for $128,000. [ 17 ] On the same day, Ms. D. signed a notarized promissory note pursuant to which she undertook to repay Mr. V. $16,500, at an annual interest rate of 7%. This amount corresponded to her share of the down payment for the property, for which Mr. V. made a payment of $33,000. [ 18 ] On May 3, 1995, Mr. V. sold his property on Street A for $119,500, incurring a loss in relation to the purchase price in order not to lose the opportunity to acquire the residence on Street B with Ms.

D. [ 19 ] The parties were married on June 17, 1995, in City C, under the regime of separation as to property. They signed a marriage contract on June 13, 1995, before Mtre Denis Tanguay, notary. [ 20 ] At this time, Ms. D. was employed as a nurse at Centre A, while Mr. V. was working as a veterinarian. [ 21 ] On ..., 1996, Ms. D. gave birth to their first child, X, who was born with Down syndrome. After a few months maternity leave, she returned to work at Centre A. [ 22 ] On ..., 1997, Ms. D. gave birth to a girl, Y. After her maternity leave, she was reinstated in her position. [ 23 ] In 2001, Ms.

D. left Centre A and began working as a nurse at Centre B. [ 24 ] In 2003, the parties moved their residence onto a new foundation on the same property, and from then on, it was used as a farm building. They built a new residence on the old foundation. Mr. V. spent $35,000 on materials to complete this project. [ 25 ] Mr. V. owned a dog kennel and attended dog shows in Canada and the United States with Ms. D.

Running the kennel also required the parties to perform several other tasks including artificial inseminations, birthing, recording pregnancies, meeting with potential buyers, sales, and maintenance. [ 26 ] The kennel is located on the same property as the family residence. Also located on the property are a stable housing three horses, the former house now used as a farm building, and a garage. An office was set up in the basement of the family residence so that Mr. V. could meet with clients of the kennel. [ 27 ] At a certain point, Mr. V. began chatting on the Internet with a man named Se.

Around March 2005, Ms. D. began to suspect that Mr. V. was having an extramarital affair with him. She questioned him unsuccessfully about this on several occasions. [ 28 ] On June 1, 2005, Ms. D., who suffers from an adjustment disorder, took a medical leave from her job. [ 29 ] On July 4, 2005, Mr. V. admitted to Ms. D. that he was in love with Se. The parties separated. Mr. V. found an apartment and moved in with his new spouse, Se. [ 30 ] In the fall of 2005, Ms. D. became depressed. She returned to work in July, 2006. [ 31 ] The parties came to an agreement in regard to custody of the children. Mr.

V. was responsible for picking up the children at Ms. D.’s residence and bringing them back the next morning. Mr. V. would go to the family residence almost daily as he was using a room in the basement as an office to meet with clients of his kennel and had to take care of the dogs and the horses. [ 32 ] Since April 2007, Ms. D. has been seeing Ju. L., who lives with his parents but spends most of his time at her house.

[ 33 ] On October 1, 2007, Ms. D. filed a motion to institute divorce proceedings. She sought custody of the children, child support payments, the right to use the family residence for a period of ten years, payment of expenses related to the residence by Mr. V, an order prohibiting Mr. V’s spouse from entering the residence, an order prohibiting Mr. V. from being within fifty metres of the residence, partition of the family patrimony, and a compensatory allowance of $ 25,000 for the time she spent raising Mr. V’s dogs. [ 34 ] On September 24, 2008, Mr. V. filed a defence and cross demand.

He sought shared custody of the children, partition of the family patrimony, partition of the undivided property, the uninterrupted renewal of the real estate agent’s mandate to sell the family residence, and the payment of a compensatory allowance of $64,500, which included the repayment of a $16,500 loan. [ 35 ] On October 1, 2008, Ms. D. amended her motion to institute proceedings in order to request the repayment of a loan of $21,550.12. [ 36 ] In January 2009, Ms. D. obtained a new management position at Centre B, with an annual salary of $77,136.80. For his part, Mr.

V. had a salary of $136,159 in 2008. [ 37 ] On April 2, 2009, Mr. V. amended his motion and cross demand. He sought an order that Ms. D. assume her part of the children’s special expenses, that he be granted exclusive use of the family residence, or subsidiarily, that Ms. D. assume entire responsibility for the expenses of the residence, and that she pay a rental allowance for having had the exclusive use of the residence since July 4, 2005. He also sought to be declared the co-owner of a Registered Education Savings Plan that was in Ms. D’s name for the benefit of X. [1] [ 38 ] On November 4, 2009, Mr.

V. served Ms. D. with a motion for permission to amend his defence and cross demand. This motion was granted. Rather than including his claim for payment of the $16,500 notarized promissory note in his claim for a compensatory allowance, he made a separate application for this amount. Most of the other amendments were made to provide particulars and updates. TRIAL JUDGMENT [ 39 ] I will set out the reasons of the trial judge as I examine each ground of appeal. CONCLUSIONS UNDER APPEAL [ 40 ] In his inscription in appeal, Mr.

V. contests the conclusions set out in the judgment in regard to twelve orders for corollary relief. At trial, his lawyer indicated that Mr. V. was withdrawing the twelfth application pertaining to child support. [ 41 ] Mr. V. alleges that the trial judge committed errors of fact [2] on the first nine issues and errors of law on the two others. It is worth reproducing these eleven grounds of appeal: [ translation] I – Palpable errors in the assessment of the documentary evidence and testimony (

A) The trial judge committed a palpable error of fact and law in dismissing the appellant’s claim for a compensatory allowance of $51,500, the whole as appears from paragraphs 157 to 190 of the judgment; (

B) The trial judge committed a palpable error of fact and law in refusing to acknowledge the agreement between the parties with respect to the partition of the horses they held in undivided co-ownership, the whole as appears from paragraphs 131 to 134 of the judgment; (

C) The trial judge committed a palpable error of fact and law in ordering the appellant to transport the children, custody of whom is shared, for custody exchanges; (

D) The trial judge committed a palpable error of fact and law in prohibiting the appellant from being assisted by his children in the care of the dogs at the kennel on school nights and prohibiting the children from attending dog shows if it means they must miss school, the whole as appears from paragraphs 84-85, 217, and 218 of the judgment; (

E) The trial judge committed a palpable error of fact and law in refusing the appellant’s application that the children’s Registered Education Savings Plan, which is in the respondent’s name, be in both parents’ names going forward, the whole as appears from paragraphs 113 and 144 of the judgment; (

F) The trial judge committed a palpable error of fact and law in ordering the appellant not to come within thirty metres of the family residence, on pain of legal sanction, except to pick up and drop off the children, the whole as appears from paragraphs 130 and 236 of the judgment, and ordering him to use a particular path (path B), which is impassable, as appears from paragraphs 127 and 244;

G) The trial judge committed a palpable error of fact and law in ordering the parties to exchange their income tax returns on June 1 of each year, the whole as appears from paragraph 231 of the judgment;

H) The trial judge committed a palpable error of fact and law in stating that access to the premises to care for the dogs would be provided to him alone or accompanied by the persons of his choice, the whole as appears from paragraphs 127 and 245;

I) The trial judge committed a palpable error in making vexatious, pointless, harmful, and unjustified comments in her judgment. II – The trial judge committed the following palpable errors of law in her judgment:

(

A) The trial judge committed a palpable error in ordering the appellant to pay the respondent $18,112.46 in repayment of what she characterized as a loan, the whole as appears from paragraphs 177 to 183 and 273 of the judgment;

B) The trial judge committed a palpable error in dismissing the appellant’s application for reimbursement of a loan granted to the respondent in the amount of $16,500, representing half of the down payment paid in full by the appellant for the purchase of the family residence, evidenced by a notarized promissory note, the whole as appears from paragraphs 184 to 189 and 276 of the judgment; ANALYSIS [ 42 ] Before I address the issues, in the order set out by the appellant, it is worth repeating that an appellate court must show significant deference in regard to a trial judge’s findings of fact, especially when the trial judge has exercised his or her discretion in regard to the terms of child custody and the exercise of parental authority. [3] Moreover, the Court must not substitute a solution that it considers superior for that which the trial judge accepted absent a palpable and overriding error or an error of law. [ 43 ] I note that some of the issues raised by the appeal can be characterized as [ translation] “ irritating situations”.

It is essential for the parties to negotiate and try to come to an agreement in this regard, as they must, to some extent, share the family residence, but first and foremost, they must cooperate in the best interests of their children. [ 44 ] I would add that some of these issues are temporary, as once the family residence is sold, there will no longer be any difficulty with respect to the common use of the premises, and the parties may need to reassess the issues related to the transportation of the children, depending on where Ms. D.’s new residence is located.

Compensatory allowance [ 45 ] In support of his claim for a compensatory allowance of $51,500, Mr. V. invokes four specific contributions to the enrichment of Ms. D.: [translation] 45.1. the payment of $35,000 for materials used in the renovation of the family residence; 45.2. his contribution to Ms. D.’s Registered Retirement Savings Plan (RRSP); 45.3. Ms. D.’s use of Air Miles for a trip with her daughter, Y; 45.4. the loss he sustained at the time of the sale of his house in City A. [ 46 ] During the hearing, counsel for Mr.

V. was told not to invoke the last two elements given that one occurred after the end of cohabitation and other occurred before the marriage. [ 47 ] In any event, these did not contribute to the enrichment of Ms. D. In the first case, Ms. D. used these Air Miles points for a trip with her daughter after the breakdown of cohabitation, just as Mr. V. had done during cohabitation.

With respect to the loss incurred on the sale of his house, this was a simple business decision made in order to take advantage of the opportunity to purchase the other residence. [ 48 ] While it is uncontested that the first two contributions were made, they do not give rise to the granting of a compensatory allowance. [ 49 ] Mr. V. criticizes the judge’s refusal to consider these contributions because [ translation ] “the evidence does not establish that these contributions were made out of property devolved by succession or gift, or its reinvestment” (para 167 of the judgment). [ 50 ] While it is true that

article 418 CCQ, invoked by the trial judge, pertains to the partition of the family patrimony rather than the granting of a compensatory allowance, this does not allow us to conclude that Mr.

V. established his entitlement to a compensatory allowance. [ 51 ] This Court has previously had the occasion to state that, in principle, unequal contributions of the spouses towards the purchase, maintenance, and improvement of property comprising the family patrimony should not be taken into consideration. [4] [ 52 ] The legislative provisions governing the family patrimony have the specific objective of remedying the difficulties arising from the evidence required to determine entitlement to a compensatory allowance, and if applicable, establish its quantum.

The intention of the legislator was to avoid requiring the parties to conduct an a postiori [ translation ] “accounting of their cohabitation” and avoid the problems and vagaries of proceeding in such manner. [ 53 ] In certain circumstances, which are not present in this case, the law allows for an unequal partition to counteract certain injustices (422 CCQ). [ 54 ] Counsel for Mr. V. argued that the circumstances of this case are exceptional in view of the situation of the parties after partition of the family patrimony. He claims that Mr. V. will have a significant amount of debt ($115,828), as opposed to Ms.

D., who will not be required to assume any debt. [ 55 ] The rules regarding the family patrimony, like those pertaining to compensatory allowances, are not intended to achieve perfect

financial balance between the ex-spouses. Moreover, the assertion of Mr. V.’s lawyer in regard to the indebtedness of his client must be nuanced. Taking into consideration the eventual sale of the family residence, it must be noted that this will result in a capital gain for Mr. V. of approximately $213,000 (asking price of $595 000, mortgage of $169,000). [ 56 ] In short, the trial judge’s conclusion contains no error that would justify the intervention of this Court. Agreement regarding ownership of the horses [ 57 ] According to Mr.

V., the trial judge refused to acknowledge an agreement entered into by the parties in regard to the ownership of the horses: [ translation ] [131] The parties appeared to have come to an agreement in regard to their horses. Mr. V. would keep A, which belonged to him before, and transfer his undivided part of B (worth $2,300) to J.D., who, for her part, would give him her undivided part of C (worth $10,000).

The costs of the transfers would be borne by the new owners of B and C. [132] Unfortunately, during Mtre Savoie’s oral arguments, the parties’ lawyers realized that they had both misunderstood the scope of this agreement. Mtre Désautels thought that the transfers would occur without monetary compensation, while Mtre Savoie believed the opposite. In the circumstances, the undersigned makes no ruling on this property, which is not part of the family patrimony. Consequently, the rules governing the parties’ matrimonial regime are applicable [ 58 ] For Mr.

V., the agreement clearly did not provide for the payment of any balance in regard of these transfers of property. This is apparent from a document prepared for the judge by his lawyer. This document lists only the property that was included in an agreement reached by the parties and the property at issue. No amount in respect of the horses is indicated in the document. [ 59 ] During the pleadings, counsel for Ms. D. indicated that the agreement set out who would be the owner of the horses but that the judge would still need to consider their value, as she would for the other property.

As the estimated value of horse C was $8,000, [5] that of horse B was $2,300, and that of horse A was $10,000, [6] counsel for Ms. D. sought a declaration that Mr. V. would owe Ms. D. the amount of $3,850 for this property. Mr.

V.’s view was that the scope of the agreement was clear, and there was no balance payable. [ 60 ] Considering the comments made by the judge and by the lawyers during their oral arguments, the Court notes that the judge also understood that a complete agreement had been reached by the parties on this issue: [ translation ] THE COURT Yes, but I was not told by anyone that I should consider ... What you told me was that C would remain with Mr. V., Ms. D. would keep one horse, and Mr. V. would keep the other, and that’s it. MTRE SAVOIE Yes. THE COURT You never told me that I had to calculate their value.

MTRE DESAUTELS Exactly. MTRE SAVOIE You are correct, but ... you are correct, but all those numbers were accepted by the clients. We are thus asking you to complete the process in terms of value and then establish which of the two (2) horses held in undivided co-ownership will go to whom. That would be an agreement. With respect to their value, there is consideration, and since one is worth ten thousand (10,000.00) and the other two thousand three hundred (2,300.00), I am asking you … I am asking you to rule that Mr.

V. has a debt of three thousand eight hundred and fifty (3,850.00) in respect of the horses … … THE COURT You do not agree on the content of the agreement?

MTRE DESAUTELS We agree on the content; what my colleague is saying is new. This has taken me by surprise. There was an agreement. My client did not even ask for such a large share of the horses; Ms. D. offered it to him. My client is the owner of one horse … … THE COURT You, you’re saying no, that is not the agreement? MTRE SAVOIE This does not make sense, your Honour. These amounts were accepted by … THE COURT In reality, there is no agreement? … MTRE SAVOIE I am ready to consider these amounts for the purposes of the agreement. Otherwise, we remain in indivision.

MTRE DESAUTELS I submit, your Honour, that there is an agreement. We were in a [ translation ] "cubicle". My colleague and I discussed this, and he never said to the Court, [ translation ] “it is up to the Court to rule and there is a balance payable by one or the other”. Moreover … … MTRE DESAUTELS My client did not ask for that much. It was Ms. D. who offered to transfer the other horse. He accepted it in order to achieve peace, so that we would not have to be here for a hundred (100) years. There was an agreement. And to come back today and attempt to change it, I submit that that is not how things are done.

MTRE SAVOIE Good, very good, very good. MTRE DESAUTELS There was an agreement. It was not part of the family patrimony, and the Court stated, [ translation ] “I need not partition what is held in indivision. If you want to institute proceedings, the horses will be sold at auction”. Ms. D. had little; she offered even more than my client wanted. He said, [ translation ] “I’ll take them”. So there was an agreement. THE COURT Very well. You will express your views on this, counsel.

MTRE SAVOIE Absolutely, your Honour. [ 61 ] Unfortunately, the agreement between the parties was not set out in writing nor recorded in the minutes of the proceedings. It is therefore possible that counsel for Mr. V. and counsel for Ms. D. understood something different than the content of the agreement. Mr. V. had the burden of demonstrating the scope of the agreement. He did not establish that the judge committed a palpable and overriding error in concluding that the parties were unable to reach a complete agreement on the partition of this property.

[ 62 ] It is, however, unfortunate that the judge did not reopen the hearing to obtain clarification in this regard. It was certainly not in the interests of the parties, nor in the interests of justice, nor was it consistent with the principle of proportionality to encourage the parties to institute another action before the courts.

Although the horses were not part of the family patrimony, this issue was properly before the judge, in the same manner as the respective loan claims. [ 63 ] Considering that the respondent did not appear and did not attend the hearing, the Court was unable to obtain her views or suggest mediation on this issue. [ 64 ] With regret, I am of the opinion that the Court is confined to upholding the uncontested portion of the agreement, and consequently, to declaring that Mr. V. is the owner of horse A and that Ms. D. is the owner of horse B, and to reserving Ms. D.’s rights to bring a claim for a balance of $3,850.

Transportation of the children [ 65 ] The parties have shared custody of the children, who spend two days alternatively with each parent. [ 66 ] In her judgment, the judge accepted Mr. V’s offer to transport the children to and from custody exchanges: [ translation ] [87] Finally, Mr. V. offered to continue transporting the children to and from the custody exchanges. His offer is accepted. … [196] ORDERS that the transfer of the children take place at 6 p.m., unless the parties agree otherwise; … [201] ORDERS the defendant/cross-plaintiff to transport the children to and from such custody exchanges; [ 67 ] Mr.

V. claims that, contrary to the trial judge’s assertion, he never [ translation ] “offered to continue transporting the children to and from the custody exchanges”. [ 68 ] During his testimony, Mr. V. made the following comments in regard to the transportation of the children: [ translation ] Obviously, I find it appalling that since 2007, I have been responsible for all the transportation in both directions. Ms.

D. makes no effort to come get the children or bring them back, but I’m prepared, I would say, to continue to endure this, I … … We could also agree on a place ... where we could bring them or pick them up, that is more neutral. That could be something … … Anyway, I’m going and I’ll have to continue to go until the house is sold. I’ll get back to that later. It’s not a problem for me to ... to pick up the children or to bring them back. [ 69 ] Clearly, Mr.

V. did not offer to transport the children in both directions; however, he did not refuse to continue transporting them. [ 70 ] We must keep in mind that the situation will likely change once the house is sold, and the arrangement can then be revised depending on where Ms. D. is living. [ 71 ] Mr. V. also appeals the time specified by the judge. In his factum, his lawyer stated: [ translation ] 95. Moreover, the time of the exchange set out at paragraph 186 of the judgment poses serious logistical problems for the defendant and subjects the children to needless moves.

It would be more practical, and in the children’s interest, for the custody exchange to take place at the end of the school day, and at 6 p.m. on other days unless the parties agree otherwise. [ 72 ] It goes without saying that the judge emphasized the fact that parties could come to an agreement to modify the time that she specified. Hopefully, the parties can find a solution that is in the best interests of the children. In any event, it is difficult for the Court to intervene without knowing Ms.

D.’s point of view, and without being able to assess the resulting advantages and inconveniences for the children. [ 73 ] I would therefore dismiss the appeal on this issue. Prohibition against participating in dog care and attending dog shows [ 74 ] The judgment contains the following reasons and conclusions:

[ translation ] [84] On the other hand, the children, X and Y, may not miss school to attend dog shows with their father. [85] Moreover, they may not assist with the dog care on school nights. … [217] PROHIBITS the defendant/cross-plaintiff from bringing the children, X and Y, to dog shows on school days; [218] PROHIBITS the defendant/cross-plaintiff from asking the children to assist with dog care on school nights; [ 75 ] Mr.

V. claims that the judge erred in prohibiting him from obtaining the children’s help with the dog care on school nights and in prohibiting him from bringing them to dog shows on school days. In his view, these two orders are contrary to the children’s interests, unreasonable, and unsupported by the evidence. He notes that the motion to institute proceedings in divorce contained no application in this regard, that there was no evidence suggesting that these activities could be harmful to their studies, and that the judge ruled on her own initiative on this issue. [ 76 ] During the trial, Ms.

D. asserted that she was not pleased by the fact that Y had to [ translation ] “actively participate in the dog care”, even when it was late, but this was the only allusion made to this issue. In regard to dog shows, counsel for Y, in a letter addressed to the parties’ attorneys, explained the child’s requests as follows: [ translation ] Her specific requests concern her trips to dog shows with her father. She does not understand why her mother refuses to authorize these, whereas the school is in agreement, and she had been going while her parents were together.

She would like to go on this trip, which occurs only once a year. [ 77 ] During Ms. D’s cross-examination by Y’s attorney, the judge made the following comments in regard to the child’s requests: [ translation ] The Court: In any event, I have been clear on this point. There is no way that the child is going to miss school to go to dog shows. I am telling you that I am going to issue an order. The respondent: Thank you. The Court: Between dog shows and school, school is more important.

In my view ... [ 78 ] The judge did not cast any doubt on the parenting abilities of either party: [ translation ] [78] The former spouses have excellent parenting abilities, and the children have meaningful relationships with both of them. [79] That said, the couple’s separation completely disrupted their lives. [80] They come and go to and from one or the other’s homes without rhyme or reason, often at the whim of Mr. V., depending on his work

schedule and his dog shows. [81] Surprisingly, they have adapted perfectly. Further, X, through her attorney, informed the Court that she wanted to maintain this lifestyle and that she was comfortable with it. Y, for his part, could not express his opinion due to his Down syndrome, but it is in his interest, with only few exceptions, to follow his sister. [82] In the best interests of the children, this situation must be maintained. [83] In the circumstances, and considering the existing bonds between the children and their mother and father, the parties shall have shared custody of the children.

Exchange of custody shall take place at 6 p.m., unless the parties reach another agreement. [ 79 ] According to the letter written by counsel for Y, the dog show is held only once a year, and the school administration does not object to Y’s absence on that day. Moreover, in time, this order will become less relevant. Y is now fourteen years old and is surely capable of expressing her opinion. It is difficult to imagine that father and daughter will remain bound by this decision until she reaches the age of majority. [ 80 ] With great respect, the judge imposed her own personal values.

Surely, no one would question the fact that school has priority over this type of activity, but after finding that the parties’ parental abilities were entirely sufficient, it seems inappropriate to me to vary their exercise. [ 81 ] I would therefore strike the following conclusions from the judgment:

[ translation ] [217] PROHIBITS the defendant/cross-plaintiff from bringing the children, X and Y, to dog shows on school days; [218] PROHIBITS the defendant/cross-plaintiff from asking the children to assist with dog care on school nights; The Registered Education Savings Plan [ 82 ] The Registered Education Savings Plan held by Ms. D. was valued at $28,511.69 at the time of the trial. [ 83 ] In this regard, the judgment contains the following reasons and conclusions: [ translation ] [113] Ms.

D. will retain full and complete ownership of the children’s Registered Education Savings Plan, which is to be used for their benefit, upon agreement with Mr. V. On August 30, 2009, it was worth $28,511.69$. [114] The only contributions made to this plan were the government benefits allocated to Ms.

D because of X’s disability and the funds granted to her by the C.L.S.C. for respite care. … [268] DECLARES the plaintiff/cross-defendant the sole owner of the children’s Registered Education Savings Plan; [269] ORDERS the plaintiff/cross-defendant to use the funds in this Registered Education Savings Plan for the sole benefit of the children, upon agreement with the defendant/cross-plaintiff; [ 84 ] Mr. V. claims that the judge erred in dismissing his application to be declared the co-owner of the Registered Education Savings Plan that is in Ms. D.’s name, even though she ordered Ms.

D. to use the amounts of this RESP for the sole benefit of the children, upon agreement with Mr. V. He says he fears that the funds in the RESP will be used without his consent. [ 85 ] The evidence supports the judge’s conclusion that the funds in the RESP came from the benefits Ms. D. received for X because of his disability and amounts paid by her employer for [ translation ] “monthly respite”. Consequently, Ms. D. was the sole owner. The judge nevertheless granted Mr. V. the right to oversee how the funds in the savings plan are to be used. [ 86 ] Counsel for Mr.

V. argued that her client has reason to fear that Ms. D. will not respect her obligations. The appellant’s factum states: [ translation ] 108. The respondent testified on her intention to perhaps transfer the funds in the Education Savings Plan into her RRSP or an annuity for her son, even though the funds were invested in an Education Savings Plan. [ 87 ] Nothing suggests that Ms. D. is in bad faith, and there is no indication that she will not comply with the order set out at paragraph 269 of the judgment. [ 88 ] I would therefore dismiss the appeal on this issue.

The order not to approach the house and the path to take [ 89 ] For the reasons set out below, the judge made the following orders: [ translation ] Reasons [127] Mr. V. shall take path B when going, alone or accompanied by the persons of his choice, to the buildings that he is authorized to use. [128] However, Ms. D. shall keep path B passable, well maintained, and clear. [129] Ms. D. is entitled to privacy. Yet Mr.

V. has continuously intruded into her private life, in particular by taking advantage of the fact that he has until now been using the office in the basement of the house and the garage adjacent to it. [130] Finally, Mr. V. shall not come within thirty metres of the family residence, except during custody exchanges, subject to legal sanctions for non-compliance. Orders [236] ORDERS the defendant/cross-plaintiff not to come within thirty (30) metres of the family residence, except during custody

exchanges, subject to legal sanctions for non-compliance. … [244] ORDERS the plaintiff/cross-defendant to clear and maintain path B, and ensure that it is passable, until the property is sold; [245] ORDERS the defendant/cross-plaintiff to take path B when going, alone or accompanied by the persons of his choice, to the buildings that he is authorized to use; [ 90 ] Mr. V. claims that there was no evidence of any such intrusion into Ms. D.’s private life and that she refused to hang curtains on the many windows of the family residence. [ 91 ] According to Ms. D.’s testimony at trial, Mr.

V. would pass by the windows of the residence everyday on his way to the kennel, and she found it difficult to deal with this lack of privacy. She also recounted how one day, when she was in the pool with her children and her spouse, Mr. V., who was passing by, joined them without invitation, once again interfering with her need for privacy. There was therefore evidence supporting the judge’s ruling that that Mr. V. had intruded into Ms. D’s private life. [ 92 ] Mr. V. claims that path B is dangerous and impassable, especially in the winter and spring.

He was unable to park his car at the top of the path as he often had heavy bags with him, e.g. dog food. Path C, used by Ms. D.’s spouse, was preferable. Ms. D., for her part, explained that path C was not actually a path, but part of the lawn. The lawn has now disappeared due to use, but the path is nevertheless too close to the drainage field, and Mr. V. already almost ripped the hose out when passing through with his car. She explained that she preferred he use path B since it was separated from the house by a row of trees and that in the spring, all the paths on the property are muddy. [ 93 ] Mr.

V. has not established that the judge committed a palpable and overriding error with respect to the use of path B. The testimonies in regard to the conditions of the paths were contradictory, and the judge accepted Ms. D.’s version, while ordering her to maintain path B in good condition. [ 94 ] With respect to the prohibition against being within thirty metres of the residence, Mr. V. alleges that it conflicts with the exclusive right the judge granted him to use the farm building, which he claims is within thirty metres of the residence.

This, he claims, exposes him to a contempt of court charge. [ 95 ] The evidence did not conclusively support a finding that the farm building is within thirty metres of the residence. In any event, clearly Mr. V. will not be charged with contempt for being in the farm building, which the judge granted him permission to use. [ 96 ] I would thus dismiss Mr. V.’s appeal on this issue. The date on which the parties are to exchange tax returns [ 97 ] Mr.

V. claims that the judge erred in her conclusion regarding the parties’ income tax returns: [ translation ] [231] ORDERS each party to provide the other, on June 1 of each year at the latest, a copy of their income tax returns and related notices of assessment for the previous year; [ 98 ] In principle, Mr. V., a veterinarian and self-employed worker, has until June 15 to file his income tax returns, and he claims to have done so every year. He claims that this date is unreasonable, prejudicial, and not supported by any application or legal principle. [ 99 ] Although Ms.

D. did not specifically make an application in this regard, it flows from her application for child support payments that the parties will need to exchange their tax returns. At trial, Mr. V. stated that he filed his tax return in the month of June, without specifying the date. Mr. V. claims to be prejudiced but did not provide any explanation and did not connect the alleged prejudice to any specific fact. He did not establish that it is impossible for him to prepare his income tax returns for June 1. [ 100 ] I would dismiss the appeal on this issue. Access of third parties to the buildings that Mr.

V. is authorized to use [ 101 ] According to the trial judgment, Mr. V. may be accompanied by the persons of his choice; however, he is not authorized to have a third party replace him: [ translation ] [127] Mr. V. shall take path B when going, alone or accompanied by the persons of his choice, to the buildings that he is authorized to use. … [245] ORDERS the defendant/cross-plaintiff to take path B when going, alone or accompanied by the persons of his choice, to the buildings that he is authorized to use;

[ 102 ] Mr. V. claims that this conclusion is unreasonable and very prejudicial to him. He has to go to the kennel everyday to take care of the dogs and would like to send a replacement occasionally in order to spend time with his children. He claims that Ms. D.’s objection stems from homophobia. [ 103 ] The parties will be required to share the use of some of the common buildings adjacent to the former family residence for some time still.

In the circumstances, it was not unreasonable for the judge not to authorize strangers to show up alone on the property where the family residence is located. [ 104 ] I would therefore dismiss the appeal on this issue. Vexatious, pointless, harmful, and unjustified comments [ 105 ] Mr. V. characterizes the following two excerpts of the judgment as vexatious: [ translation ] [141] Throughout the hearing, Mr. V. showed a total lack of empathy for the emotional distress he caused his spouse when he broke up with her. [150] Ms.

D. had no choice [but to help the appellant with the kennel after the breakup]; otherwise, some of the dogs would have suffered from hunger or thirst. [ 106 ] With respect to the first excerpt, Mr. V. asserts that he always fulfilled his obligations with respect, patience, and empathy towards Ms. D., whereas she has only criticized, insulted, and ridiculed him. [ 107 ] With respect to the second excerpt, Mr. V. claims that it is contrary to the evidence, which revealed that he went to the kennel at least daily to give the dogs food and water.

As a veterinarian in a small village, he fears that the publication of the judgment will be prejudicial to him, notwithstanding the rules of confidentiality applicable to decisions in family law matters. [ 108 ] In my opinion, the judge did not intend to make vexatious comments in regard to Mr. V. In the first excerpt, she described Ms. D.’s state of distress. In the second excerpt, her intention appears to have been to mention that Ms. D. was cooperative, even after the breakup, no doubt in order to attenuate Mr. V.’s complaints. These comments were not intended to suggest that Mr.

V. is not a veterinarian concerned with the best treatment of animals. [ 109 ] I would dismiss the appeal on this issue. Repayment of the debt granted by the respondent [ 110 ] In 2000, Ms. D. withdrew $21,550.12 from her RRSP. She paid approximately $7,000 in tax on this withdrawal, used $3,000 for the needs of the family, and gave $11,246 to Mr. V. so that he could pay his tax debts. [ 111 ] The trial judge ruled that this was a loan, and consequently ordered Mr. V. to repay Ms. D. the amount of $11,112.46 plus the $7,000 in tax that she incurred, for a total of $18,112.46. [ 112 ] At trial, Mr.

V. argued that this was not a loan, but simply a contribution to the family obligations. He reiterated this claim on appeal. [ 113 ] The trial judge’s decision on this issue was based on a factual analysis of the evidence. Absent a palpable and overriding error, the Court cannot accept this ground that Mr. V. invokes. [ 114 ] However, Mr. V. raises, for the first time on appeal, a new ground based on prescription. Prescription started to run on July 4, 2005, the end of cohabitation. According to Mr.

V., the motion to institute proceedings dated October 11, 2007, did not interrupt prescription because it contained no claim in this regard. The first application presented by Ms. D. in this regard was dated October 1, 2008, the date the amended motion to institute proceeding was filed, but that prescription had been acquired since July 4, 2008. [ 115 ] Firstly, Mr. V. argues that the application for divorce did not interrupt prescription. [ 116 ] The interruption of prescription is set out at articles 2892 and 2896 CCQ: Art. 2892.

The filing of a judicial demand before the expiry of the prescriptive period constitutes a civil interruption, provided the demand is served on the person to be prevented from prescribing not later than 60 days following the expiry of the prescriptive period. Cross demands, interventions, seizures and oppositions are considered to be judicial demands.

The notice expressing the intention by one party to submit a dispute to arbitration is also considered to be a judicial demand, provided it describes the object of the dispute to be submitted and is served in accordance with the rules and time limits applicable to judicial demands.

Art. 2896. An interruption resulting from a judicial demand continues until the judgment acquires the authority of a final judgment (resjudicata) or, as the case may be, until a transaction is agreed between the parties. The interruption has effect with regard to all the parties in respect of any right arising from the same source. [117] While it is true that the word “source” must be given a broad and liberal meaning,[7] I am unable to conclude that the claim inregard to the loan arises from the same source as the application for divorce. [118] In Portes Métropolitaines Inc. v.

Tre Corp.,[8] Jacques J.A. defined the source of a claim as follows: [translation] The source of a claim is that upon which a claim for recognition of an obligation is based. In accordance with

article 983 CCLC,obligations “arise from contracts, quasi-contracts, offences, quasi-offences, and from the operation of the law solely.” [119] In the present case, the judge ruled that the parties had entered into a contract of loan during the marriage. This contract of loan isthe source of the respondent’s claim, which is different than the source of the application for divorce.[9] Prescription in respect of thisclaim was not interrupted by the filing of the action on October 1, 2007, and when the respondent amended her claim on October 1,2008, the claim had been prescribed since July 5, 2008. [120] Mr.

V.’s failure to raise this ground at trial, however, is fatal in my opinion. [121] If Mr. V. had raised this ground at trial, Ms. D. might have been able to counter it with evidence of an acknowledgment of debtthat would have interrupted prescription. This new ground of appeal conflicts with the well-established principle that a new ground maynot be raised on appeal, when such ground could have been contested by additional evidence had it been raised at trial.

This principlewas set out by Nichols J.A. in Pitre et Durand Inc. (Trustee of):[10] [translation] The principle applicable to this issue is, in my view, that a party may not raise an entirely new argument on appeal that was not raised attrial, when such an argument, had it been raised, could have given rise to additional evidence. Dickson J. (as he then was) articulated this principle in Perka v. The Queen (SCC), [1984] 2 SCR 232 at 240: In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limitedto appellants’ points of law.

A party cannot, however, raise an entirely new argument which has not been raised below and in relation towhich it might have been necessary to adduce evidence at trial. See Brown v. Dean, [1910] A.C. 373; Dormuth v. Untereiner, (SCC), [1964] S.C.R. 122; The SS. “Tordenskjold” v. The SS. “Euphemia” (1908), (SCC), 41 S.C.R. 154;Dairy Foods, Inc. v. Co-opérative Agricole de Granby, (SCC), [1976] 2 S.C.R. 651. [122] I would therefore dismiss Mr. V.’s appeal on this issue. Repayment of the loan granted by Mr. V. [123] The trial judge dismissed Mr.

V.’s claim for the repayment of a loan on the basis of prescription: [translation] [184] On May 1, 1995, at the time of the purchase of the family residence, Mr. V. made a down payment of $33,000. It was agreed, in anotarized promissory note, that Ms. D. would repay him half of this amount, i.e. $16,500, plus interest at the rate of 7%, calculatedannually.

She never did repay him. [185] The document, Exhibit D-6, provides that: [translation] … Term The loan stipulated herein is at the lender’s demand and payable at the lender’s request, by the borrower, upon simple written notice tothis effect sent by the lender to the borrower. This promissory note shall remain in force between the parties until the loan is repaid, for amaximum of three years from the date hereof, in accordance with

article 2925 of the Civil Code. Consequently, if said amount is not repaid to the borrower by the expiry of this three-year period, the parties agree that another notarizedpromissory note shall be issued or this promissory note shall be renewed by notarial act en minute.

… [186] No further notarized promissory note was issued, nor was the original promissory note ever renewed. [187] Moreover, the parties were married on June 17, 1995, and pursuant to

article 2906 CCQ, prescription did not run between the spouses during cohabitation. [188] The spouses ceased cohabitating on July 4, 2005. On this date, the three-year prescription period, which had been suspended, started to run again. Mr. V.’s defence and cross demand is dated September 26, 2008. [189] This claim is thus prescribed. [ 124 ] Mr. V. asserts that the judge committed an error in using the date September 24, 2008, the date the cross demand was filed , and claims that she should have used the date April 22, 2008, the date the cross demand was served . [ 125 ]

Article 172 CCP allows the defendant to assert by cross demand “any claim arising from the same source as the principal demand, or from a related source”. [ 126 ] When the cross demand arises from the same source as the principle demand, the motion to institute proceedings has the effect of interrupting prescription in respect of both. [ 127 ] Mr. V. argued that the application for divorce did not interrupt prescription in regard to the loan claimed by Ms. D.

He does not claim that prescription was interrupted by the motion to institute proceedings in regard to his loan, which, it should be noted, was granted before the marriage. He claims, however, that service of the cross demand was sufficient. [ 128 ] The legislator, at

article 2892 CCQ, has set out two conditions for the interruption of prescription, the filing of a proceeding and its service . [ 129 ] The same is true in regard to a motion for the revocation of a judgment (484 CCP) and an inscription in appeal (495 CCP). [ 130 ] Pursuant to the first paragraph of

article 2892 CCQ, the interruption of prescription arises from the filing of the proceeding, which may be served even after prescription is acquired (within sixty days). [ 131 ] While the legislator did not impose a specific deadline for the filing of a cross demand, it is nevertheless important to note that in the second paragraph of

article 2892 CCQ, the legislator considers a “cross demand” to be a “judicial demand” referred to in the first paragraph.

By analogy, we must conclude that the cross demand must be filed “before the expiry of the prescriptive period”. [ 132 ] To interrupt prescription, the party must necessarily institute a proceeding and cannot simply advise the debtor; for example, a demand letter does not interrupt prescription. [ 133 ] If we were to accept that service is sufficient, we would have to conclude that prescription is interrupted for an indeterminate period when the cross-plaintiff delays or neglects filing their proceeding. [ 134 ] I would thus dismiss the appeal on this issue.

CONCLUSION [ 135 ] For these reasons, I would allow the appeal in part, for the sole purposes of: [ 136 ] DECLARING that Mr. S. V. is the owner of horse A; [ 137 ] DECLARING that Ms. J. D. is the owner of horse B; [ 138 ] RESERVING Ms. J. D.’s rights to bring a claim for a balance of $3,850; [ 139 ] STRIKING paragraphs 217 and 218 of the judgment; [ 140 ] THE WHOLE WITHOUT COSTS in view of the circumstances. ANDRÉ FORGET, J.A. [7] St. Lawrence Cement Inc. v. Barrette , [2008] 3 SCR 392 , 2008 SCC 64 at paras 103-104 .