2017 QCCA 1994, 2017 QCCA 1994

Droit de la famille — 172961 2017 QCCA 1994 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026636-175 (500-12-307889-117) DATE: December 14, 2017 CORAM: THE HONOURABLE JULIE DUTIL, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. L. SH. APPELLANT — Respondent v. S. S. RESPONDENT — Plaintiff JUDGMENT [ 1 ] L. Sh. (the “ Appellant ”) asks this Court to overturn a judgment of January 23, 2017, of the Superior Court, District of Montreal (the Honourable Francine Nantel) (the “ Trial Judge ”) ( 2017 QCCS 191 ), determining the accessory measures to her divorce from S. S. (the “ Respondent ”). [ 2 ] The principal accessory measures ordered by the Trial Judge were (

a) the payment to the Appellant of her 50% interest in the sale of the family home in Town A for an estimated amount of $2,200,000; (

b) the transfer to the Appellant of the full property of a condominium in Bal Harbour, Florida of an estimated value of $3,587,000 in exchange for her half interest in a property in Town B, Quebec, valued at $1,800,000; (

c) monthly spousal support in favour of the Appellant of $55,540 ($666,480 annually) until December 21, 2021; (

d) a lump sum payment of $9,000,000 to the Appellant; and (

e) a provision for costs of $617,000 in favour of the Appellant. [ 3 ] The primary ground of appeal is that the Trial Judge would have violated the Appellant’s fundamental constitutional right to a fair trial by refusing to suspend the trial to allow her to be represented by legal counsel. The Appellant therefore seeks a new trial. [ 4 ] Should the Court deny her a new trial, the Appellant raises the following subsidiary grounds of appeal: (

a) The Trial Judge would have erred by setting a term to her monthly spousal support. (

b) The Trial Judge would have erred in determining the amount of monthly spousal support by ignoring the compensatory aspects and the Respondent’s capacity to pay. The appellant asks that monthly support be set at $79,166.66 ($950,000 annually) after taxes, rather than $55,540 ($666,480 annually) after taxes. (

c) The Trial Judge would have erred by setting the quantum of the lump sum payment at $9,000,000. The Appellant requests instead a lump sum payment of $15,000,000. (

d) Finally, the Trial Judge would have erred by limiting the provision for costs at $617,000 and should have rather ordered the Respondent to pay the Appellant $2,500,000 for this purpose. The Main Ground of Appeal: A New Trial [ 5 ] Taken in context, the refusal of the Trial Judge to suspend or to postpone the trial was entirely justified. We are unanimously of the view that a new trial in this case would place the administration of justice into serious disrepute.

Ordering a new trial in the circumstances at hand would be fundamentally unfair to the Respondent, would be contrary to the guiding principles of civil procedure and would be nothing less than unjustifiably condoning the Appellant’s determined efforts to derail the proceedings. [ 6 ] The divorce proceedings in this case were initiated by the Respondent in February of 2011. It took close to six years to reach a judgment. This long delay was mainly attributable to the Appellant’s egregious behaviour throughout the proceedings.

These are replete with a series of unjustified, excessive and extravagant claims from the Appellant, including unjustified full ownership claims over numerous properties, yearly spousal support claims of $1,800,000 net of taxes, claims seeking to set aside the parties’ marriage contract without any factual or legal basis, etc., thereby uselessly complicating the case and delaying its resolution. [ 7 ] As but one example, the Appellant insisted on having her own expert to evaluate the net worth of the Respondent in what

amounted to a long fishing expedition, all for naught as the expert finally withdrew from the file after charging $720,000. As another example, the Appellant registered without any justification a legal hypothec against certain rental properties owned by one of the Respondent’s corporations, leading to further proceedings which were only finally resolved years later at trial.

Again as an example, the Appellant copied without authorization the contents of one of the Respondent’s computers, leading to long, costly and finally useless litigation about the ownership of that material and its pertinence to the proceedings. The list goes on. [ 8 ] The court record indicates hundreds of entries and numerous interlocutory judgments on all aspects of the proceedings, including several pre-trial proceedings in this Court. There were at least two dozen different attorneys acting for the Appellant at one time or another, as well as numerous experts, with resulting extravagant professional fees.

The Trial Judge found that the Appellant had disproportionally spent millions of dollars in legal and professional fees for what should have been a relatively simple divorce proceeding, but which unfortunately grew entirely out of proportion and became unwieldy through the repeated actions of the Appellant. [ 9 ] In October 2015, the Trial Judge was appointed special case management judge to bring some order to these proceedings so as to have the matter heard before her on the merits in a timely manner.

Attempts to bring direction to the file were resisted by the Appellant, culminating in a motion to have the Trial Judge removed from the file on spurious grounds. A short chronology of the events immediately leading to the trial is in order. [ 10 ] In December 2015, the Appellant was then represented by Me Heft and Me Lahaie.

A case management conference was held where all involved lawyers agreed that the trial would be held sometime between mid-September 2016 and mid-November 2016 for a number of days to be determined. [ 11 ] The Trial Judge appointed an independent expert to proceed to the valuation of the Respondent’s businesses.

At the insistence of the Appellant who continued to maintain, without any justification whatsoever, her claim to the annulment of her marriage contract, the expert was required to proceed at great costs with two valuation dates. [ 12 ] The Trial Judge then dealt with the numerous objections resulting from the material taken by the Appellant from the Respondent’s computer.

Unhappy with the Trial Judge’s decisions on these matters, the Appellant sought to appeal, but leave was denied. [ 13 ] In May 2016, Me Heft resigned from the file, joining a long list of past counsels for the Appellant. [ 14 ] The Appellant then brought a motion for recusal of the Trial Judge on June 27, 2016, which motion was dismissed on July 15, 2016. Leave to appeal was denied on September 9, 2016. [ 15 ] The new attorneys for the Appellant, Me Hammerschmid and Me Lahaie, then requested a provision for costs and an advance of $3,162,000 to proceed to trial.

Though this extravagant demand was clearly excessive and disproportional, on September 22, 2016, the Trial Judge nevertheless awarded an advance of $450,000 and set the trial hearing date for October 17, 2016. [ 16 ] The following day, September 23, 2016, Me Hammerschmid wrote to the Respondent’s counsel insisting on an advance of $1,500,000, failing which she and Me Lahaie would cease representing the Appellant. [ 17 ] Me Hammerschmid and the Appellant then exchanged emails as to how to best ensure that the trial not proceed as planned.

They settled on the revocation of the mandate by the Appellant so as to avoid leaving any say in the matter to the Trial Judge and placing the judicial system and the Respondent before a “fait accompli.” They even had a back-up plan to derail the trial based on spurious alleged health problems. The exchange of emails is telling: L. Sh. (September 27, 2016, 3:59 PM) Dear Linda.

The fact about my health issues should be included in this letter as well because regardless of the money issues we still can’t go and it is important for the judge to know here and now the letter from the doctor will be ready very soon the one you ask me for I have been seeing the doctor since beginning of July Linda Hammerschmid (September 27, 2016, 4:04 PM) I prefer to save the health issue if this doesn’t achieve our desired results . [ Portion blacked out ] (Dddddddddddddddddddddddddd For which we will need the letter in hand. L.

Sh. (September 27, 2016, 7:07 PM) Dear Linda according to your letter last week you were resigning if you didn’t receive additional payment by Monday sept 26 2016. I totally understand this I would not want you or Simon to work and not get paid as well it totally insane for any of us to think that you can prepare a sixty day trial in such a short time. However I do not understand why you and Simon are not just resigning why do I have to be the one to sign this paper? (…) Linda Hammerschmid (September 28, 2016, 6:38 AM) Because we do not want to give Nantel say in the matter .

So you said you were signing so pls email me copy and FedEx originals today. Linda Hammerschmid (September 28, 2016, 9:41 AM)

If we file to cease representing you the other lawyers are going to contest and the judge will force the trial to proceed. Something YOUdon’t want. They can’t stop a revocation. [Emphasis added] [18] The revocation of the mandate was signed by the Appellant on September 28, 2016, with the clear view of derailing the trial.The Trial Judge, however, rightly refused to accept such shenanigans and maintained the trial date.

At the commencement of trial onOctober 17, 2016, Me Magali Fournier now appeared for the Appellant seeking the postponement of the trial, this time invoking theAppellant’s back-up plan, i.e. her alleged illness.

The Trial Judge granted the motion in part by postponing the trial for a few weeks so asto allow the Appellant to instruct new counsel: […] CONSIDERING that Defendant has used all possible measures and proceedings in order to delay the trial on this matter; CONSIDERING that Defendant’s sudden allegations of anxiety disorder mentioned in her request for a postponement […] were neverput forward by her then legal counsels although the Doctor’s letter noted that Defendant suffers from anxiety since the month of May2016; CONSIDERING that this case has been instituted in February of 2011 and that the issues are strictly monetary in nature and not ascomplex as Defendant wishes to believe; CONSIDERING that the judicial system, Plaintiff and the witnesses, cannot and shall not be held hostage of a party who refuses toproceed without valid grounds “Le droit des uns commence là où le droit des autres s’arrête”; CONSIDERING that the Superior Court must nonetheless balance the interest of both parties: on the one end: Defendant cannot undulysuspend the proceedings to the prejudice of Plaintiff.

On the other end: in all fairness, the Court should provide Defendant with a final chance to secure counsel prepared to proceed on October 31st, 2016, failing which, the matter shall proceed without fail on said date; thetwo weeks delay is sufficient for an attorney or for Defendant to prepare for trial; […] THE COURT: GRANTS in part Defendant’s motion to postpone today’s hearing; ORDERS that the matter proceed without fail on October 31st, 2016 at 9:30 whether or not Defendant is represented by counsel orchooses to be absent; […] [19] On October 27, 2016, the Appellant submitted a new postponement motion through her new attorney, Me Pierre Fournier.

Sincethe motion was not supported by a sworn declaration from the Appellant, the Trial Judge contacted her in Miami by telephone in opencourt. The Appellant refused to sign a sworn declaration, leaving no other choice for Me Fournier than to resign from the file with leavefrom the Trial Judge. [20] The trial began on October 31, 2016. Though attorneys were present for the Appellant to seek a postponement, they stated thatthey had received no mandate from the Appellant.

The postponement was denied by the Trial Judge. [21] The Trial Judge then took measures to ensure that the trial would proceed without further delay notwithstanding the refusal ofthe Appellant to attend and to instruct counsel.

A copy of the minutes of the hearing and an audio CD of each day of hearing weredelivered on a daily basis to the Appellant at her Florida address. [22] On the fourth day of hearings, on November 3, 2016, Me Lapointe and Me Duval forwarded a letter to the Trial Judgeindicating that they had been retained by the Appellant and were seeking a suspension of the trial until after November 29, 2016. Ahearing on this matter was held on November 7, 2016, at which time it became apparent that the suspension was to accommodate theattorneys’ holidays.

The Trial Judge found this request to be frivolous in light of the circumstances. Leave to appeal that decision wasdenied by Schrager, J.A. on November 11, 2017. [23] As the Trial Judge noted at par. 241 of her reasons, the conduct of the Appellant “amply demonstrates a total lack of respecttowards authority and the legal system.” We agree.

Should this Court have jurisdiction over the issue notwithstanding Schrager’s J.A.denial of leave to appeal (a jurisdictional issue we need not address here), we are unanimously of the view that there was no error in theTrial Judge’s decision to refuse to suspend or to postpone the trial. As a result, we are also unanimously of the view that a new trialshould not be ordered. Subsidiary Grounds of Appeal [24] The subsidiary grounds of appeal must be assessed in the light of the applicable standard for appellate review in divorceproceedings.

The Supreme Court of Canada has reiterated time and again that because of its fact-based and discretionary nature,alimentary support determinations by trial judges are owed considerable deference by appellate courts: see notably Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, paras. 10-11; and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014. InHickey v. Hickey, at par. 11, the standard was described as follows:

[11] Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. […]. [ 25 ] We find no error in principle nor any significant misapprehension of the evidence in the Trial Judge’s determinations; nor has the Appellant convinced us that these determinations are “clearly wrong.” [ 26 ] The Trial Judge concluded from the evidence that the Appellant had assets of at least $3,000,000 at her disposal following the property division and taking into account her estimated debts: par. 208 to 214 of the reasons for judgment.

The Judge was further of the view that the continuing economic relationship between the parties had to come to an end in a manner which promoted the self- sufficiency of the Appellant and her future security: par. 218-219 of the reasons for judgment.

There was ample evidence in the record supporting these findings. [ 27 ] The Trial Judge therefore ordered the Respondent to pay the Appellant a lump sum amount of $9,000,000 which, combined with her existing assets of $3,000,000, would provide her with total assets of $12,000,000 with which to live with once the monthly spousal support payments end on December 31, 2021. At that time, the Appellant will be 60 years of age.

The capital itself would be enough to allow her to maintain for the rest of her life a lifestyle of ease and luxury, not counting the substantial potential for capital growth nor the revenues which she can derive from these assets. [ 28 ] In light of the $9,000,000 lump sum to be paid to the Appellant, we find no error in the Trial Judge’s decision to end the periodic support payments on December 31, 2021. [ 29 ] As for the level — $55,540 monthly ($666,480 annually) after taxes — of spousal support for the next five years, the appellant has failed to convince us that we should intervene to increase it.

If anything, it is a generous award taking into account all the circumstances. The total periodic spousal support payments of $3,276,860 net of taxes over 5 years also provides ample room for the Appellant to settle the legal fees she has unjustifiably incurred and to even set aside money for the future.

It is the combined value of the alimony and lump-sum payments over 5 years ($12,276,860) that must be considered in determining the reasonableness of the Trial Judge’s award. [ 30 ] As for the Appellant's submission with respect to the compensatory aspects of the alimony awards, we find no error in the following findings of the Trial Judge: [182] In this particular case, the Wife’s assets [are] worth approximately $3M. She did not sacrifice her own career and is not left economically disadvantaged as a result of the marriage and its breakdown.

Had she devoted her energies into a separate career rather than her marriage it would not have, in all probabilities, resulted in her being more economically advantaged. The only issue in her support claim is self-sufficiency and is not compensatory. [ 31 ] Moreover, there was ample evidence in the record allowing the Trial Judge to assess the Respondent’s annual revenues as she did basing herself largely on the report from the independent court appointed experts.

This Court will not interfere with a factual determination amply supported by the evidence. [ 32 ] Finally, we find no error in the Trial Judge’s determinations with respect to the provision for costs of $617,000. As the Trial Judge rightly concluded at par. 238 of her reasons: “[t]he objective of a provision for costs is to ensure that the parties are on a level playing field and not to fuel a judicial saga.” She further concluded at par. 242: [242] In the present instance, the Wife did not act in a reasonable manner.

On the contrary, she: -Adopted a confrontational attitude which can be summarized as “ my way or the highway ”; -Incurred excessive legal fees; -Demonstrated no effort to attempt to find solutions; -Adopted an irresponsible and unreasonable behaviour throughout the legal process by pure act of vengeance. [ 33 ] In these circumstances and taking into account the applicable standard of review, the Appellant has failed to convince us that we should intervene with respect to the provision for costs. FOR THESE REASONS, THE COURT: [ 34 ] DISMISSES the appeal, without legal costs. JULIE DUTIL, J.A. MARIE ST-PIERRE, J.A.

ROBERT M. MAINVILLE, J.A.

Mtre Claude Lapointe KOUNADIS PERREAULT INC. For Appellant Mtre Robert Pancer PHILLIPS FRIEDMAN KOTLER For Respondent Date of hearing: December 7, 2017