2021 QCCA 1157, 2021 QCCA 1157

Droit de la famille — 211352 2021 QCCA 1157 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027996-180 (500-12-322584-149) DATE: July 8, 2021 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. S. I. APPELLANT/INCIDENTAL RESPONDENT – Defendant/Cross-plaintiff v. E. H. RESPONDENT/INCIDENTAL APPELLANT – Plaintiff/Cross-defendant JUDGMENT [ 1 ] S. I. (“S. I.”) and E. H. (“E. H.”) appeal from a judgment rendered on November 15, 2018, whereby the Superior Court of Quebec (the Honourable Mr.

Justice Marc St-Pierre), District of Montreal, granted the divorce between the parties: Droit de la famille — 182397 , 2018 QCCS 4944 . The judge issued various orders: [37] GRANTS the divorce between the parties, whose marriage was solemnized on September 4, 1994, at the Paroisse de Saint Seraphin de Sarov in Montreal, which divorce shall take effect thirty (30) days from the present judgment; [38] CANCELS AND ANNULS the spousal support payable by the plaintiff to the defendant with retroactive effect to January 1, 2017; [39] DECLARES that Ms. S.

I. is entitled to receive $283,875 from the proceeds from the sale of the family residence and that Mr. E. H. will have to pay the difference between that amount and what she will receive after the judgment of the Court of Appeal in the case with Mr. Michel Primeau referred to above (Sup. Ct.# [...]), and CONDEMNS Mr. E. H. to pay Ms. S.

I. said difference, as the case may be; [40] ORDERS that the amounts accrued in the defendant's RREGOP pension plan after the marriage on September 4, 1994, and the QPP pension plan of both parties accrued from September 4, 1994, until December 27, 2014, be partitioned between the two (2) parties and ORDERS them to accomplish any action, including the signature of documents, to comply with this conclusion; [41] CONDEMNS the plaintiff to pay the defendant the amount of $4,732.50; [42] DISSOLVES the partnership of acquests between the parties; [43] THE WHOLE without cost. [ 2 ] The judgment lacks details that would have been useful for the parties in understanding why their submissions were dismissed and, as a direct consequence of this, not surprisingly, the appeal and cross-appeal attack all of the judge’s findings.

Although the appeal was initially signed and filed by the parties personally, counsel appeared for both parties. Brief Overview [ 3 ] The parties were married on September 4, 1994. The couple have no children. S. I. was working as a CLSC nurse from 1985 until 2002, when she suffered a non-work related injury resulting in chronic sciatica. Her contract was terminated in 2005, after a two- year sick leave. She also holds a Master of Business Administration (“MBA”). From January 2003 until June 2010, E. H. worked for and was a shareholder and director of a company that went bankrupt.

He was not able to find an equivalent job, but he did work for various companies before deciding to venture into the consulting business, with mitigated success. [ 4 ] The parties separated on December 27, 2013. On May 29, 2014, E. H. filed divorce proceedings. The proceedings were acrimonious and disproportionate. In October 2015, E. H. was ordered to pay provisional monthly spousal support of $1,000 to S. I. ( 2015 QCCS 5037 ) starting no later than December 31, 2015. S. I. was also ordered to vacate the family residence no later than that same date.

The provisional order was annulled on June 27, 2017, retroactively to the beginning of that year, since E. H. was not able to pay the

spousal support ( 2017 QCCS 3020 ) . S. I. had to be evicted from the family residence in 2016. The judgment also suspended “the collection and the payment of the provisional spousal support payable by [E. H.] to [S. I.] until final judgment”. [ 5 ] S. I. became a welfare recipient, and was deemed to have temporarily limited capacity for employment according to a September 1, 2017 notice of ruling issued by social services.

She also stated that she was homeless and had no fixed address. [ 6 ] The parties accumulated various debts during their cohabitation as a married couple, including three lines of credit with hundreds of thousands of dollars guaranteed by hypothec on the family residence, as well as other debts. [ 7 ] The family residence was the couple’s main asset, with some furniture and a car, both of relatively low value. The principal appeal [ 8 ] In her appeal brief, S. I. initially raised six grounds. A few days before the hearing, Mtre Heft, the attorney representing S.

I., announced by email that he would limit his submissions to the third ground. He wrote: After reviewing the brief, I have decided, with Ms. S. I.’s agreement, not to argue submissions 1, 2, 4, 5, and 6 regarding the principal appeal. I will thus only be arguing submission 3. Contrary to what appears in the brief, my argument will be that the trial judge erred in law in dismissing Ms. S.

I.’s claim for spousal support by: - giving pre-eminent consideration to the objective of self-sufficiency - failing to consider the objective of compensation for the disadvantages of the marriage and marriage breakdown suffered by Ms. S. I. - failing to grant Ms. S. I. compensatory support [ 9 ] Although Mtre Neudorfer, counsel for E. H., did not object to S.

I.'s decision to limit her arguments, he claimed that the argument that was being raised was a new one based on an alleged error of fact, that no prior authorization had been to raise that argument and that he needed time to respond properly to the “new” argument. [ 10 ] Thus, Mtre Heft filed a motion to amend the appeal brief. At the hearing, we authorized Mtre Heft to proceed on the amended brief. [ 11 ] In her brief, S. I. argues that the judge erred in fact by refusing spousal support and, in particular, as regards the arrears.

The argument holds that the judge erred in law by giving consideration only to the objective of self-sufficiency and by failing to address the economic disadvantages caused to her by the marriage and the marriage breakdown, thereby. [ 12 ] We are of the view that the respondent suffers no prejudice from the argument made by S. I. as the underlying issues were all raised by the appeal since its inception. The argument raised by S. I. is thus properly before this Court. Spousal support [ 13 ] In her testimony at trial, to claim spousal support, S.

I. heavily insisted on her medical condition, depicting herself as functionally homeless and unable to work. She said that in 2005, after an injury and a two-year sick leave from her job as a nurse, E. H. asked her not to look for employment, but to look after the home and use her MBA business skills to assist him in his career. [ 14 ] On appeal, S. I. reiterates those arguments for compensatory spousal support. She says the trial judge erred in law by only considering the objective of self-sufficiency and thus giving it undue weight.

The judge also erred in law because he did not consider the economic disadvantages resulting from the marriage and its breakdown. She submits that the circumstances of the present case entitle her to compensatory support of $1,187.50 per month. [ 15 ] First, the fact that she forcefully insisted on her incapacity to work and made her disability an important issue at trial explains the apparent predominance of the discussion of this matter in the judgment in first instance. The trial judge cannot be faulted for providing an answer to the allegation. [ 16 ] Second, the trial lasted five days. S. I. and E.

H. testified, and the trial judge made certain findings, notably on credibility. Not only did the trial judge find that S. I. had not provided convincing evidence of her medical condition, he also found that with an MBA, S. I. was intellectually capable of working, and after seeing her in court for five days, he was not convinced that her disability precluded her from finding some form of gainful employment. [ 17 ] But most importantly, for reasons he explains, the trial judge rejected most, if not all, of S. I.’s testimony. He wrote that “the Court has a great deal of difficulty believing any of Ms. S.

I.'s testimony because of her lack of credibility”. “On the whole”, he further wrote, “the grounds for spousal support offered by Ms. S. I. at trial cannot be relied upon”, underlining that “S. I. unashamedly and with the utmost conviction denied the obvious truth about the contents of [a certain] document”. [ 18 ] Further, the trial judge believed E. H.'s testimony that he was not able to find work, despite his efforts, after the company in which he was a shareholder went bankrupt.

The trial judge concluded that “his needs and his means are truthful” and, consequently, that he could not pay spousal support. [ 19 ] Credibility issues will not be disturbed on appeal unless there is a palpable and overriding error. The credibility findings set out above are well within the province of the trial judge and S. I. does not point to any palpable and overriding error, which would allow this

Court to overturn these credibility findings. The principal appeal is therefore dismissed. E. H.’s incidental appeal [20] In the incidental appeal, E. H. raises seven grounds of appeal: A Did the judgment a quo manifestly err in determining the parties’ date of Separation? B Did the judgment a quo manifestly err by using the sale price of the family residence as the starting point for the calculation ofthe net value? C Did the judgment a quo manifestly err in not determining the parties’ 2nd and 3rd credit lines secured by the family residence tobe debts of the family patrimony and matrimonial regime?

D Did the judgment a quo manifestly err in not ventilating the debts of the family patrimony (real estate sales commission andpersonal loan)? E Did the judgment a quo manifestly err in not ventilating the debts of the matrimonial regime (joint Mastercard debt and RevenueQuebec debt)? F Did the judgment a quo manifestly err in determining the value of the movable property comprised in the family patrimony? G.

Did the judgment a quo manifestly err in omitting to attribute a value to Respondent’s movables not subject to partition and whichwere removed by Appellant from the family residence without colour of right? [21] E. H. is correct on the first ground. It is not contested. An obvious error was made in the judgment as to the date of separation.The evidence establishes it to be on December 27, 2013. The trial judge himself acknowledged that date at the October 4 hearing (atpage 44), but somehow the date of December 27, 2014 found its way into the trial judgment.

At the hearing, Mtre Neudorfer agreed thatparagraph 40 of the judgment should be corrected accordingly. [22] On the second ground of appeal, E. H. argues that the judge erred in law, contrary to

article 417 CCQ, by setting the value ofthe family residence at $720,000, according to the sale price in 2018, instead of at the municipal evaluation of $603,800 on the date thedivorce proceedings were instituted in 2014. [23] It is true that the trial judge did not explain why he departed from the strict application of

article 417 CCQ. This does not mean,however, that the Court should intervene: Droit de la famille — 123266, 2012 QCCA 2037. In the present context, where the familyresidence was the couple’s only asset and more than four years had elapsed since the proceedings had been instituted, the discretionarydecision should be maintained. [24] As for the third ground of appeal, E. H. claims that the trial judge erred by not taking into account two lines of credit includedin the Deed of Collateral Hypothec tied to the family residence.

Again, it is true that the judgment offers limited reasons on this issue.Article 417 CCQ refers 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”. [25] With respect to the first line of credit, the judge heard contradictory evidence: according to S. I., it was used to pay E. H.’sgambling debt, while according to E. H., it was used by to S. I. for her business interests.

Another line of credit was used, according toboth parties, to buy furniture or pay for minor family expenses as well as for a family car. The judge concluded that neither line of creditwas used for the acquisition, improvement and maintenance or preservation of the family residence. Therefore, E. H. shows no errorpalpable and overriding error with respect to these factual findings which would allow the Court to intervene. [26] The fourth and fifth grounds pertain to four debts of the family patrimony. The first debt is the $18,000 commission owed tothe real estate broker for the sale of the family home.

The judge acknowledged that the commission for the sale of the home had to bededucted from the balance of the proceeds of sale before distribution. This is consistent with this Court’s decisions in Droit de la famille— 2211, (CAQ) and J. (Y.) c. B. (M.), (CAQ). However, the judge made no deduction. [27] The second debt is a personal loan of $19,000 to E. H. from his new life partner. S. I. submits that the personal loan was notproven. The evidence is indeed scarce on the subject. The new life partner testified that, at E.

H.’s request, she lent him $19,000 in cashfor the mortgage even though she had a limited gross income of $30,000 per year. Though the trial judge should have provided reasonswhy he did not accept the life partner’s evidence, thereby committing an error of law, the Court cannot itself conclude from the evidencethat this debt has been proven. The overall evidence in this regard is insufficient and somewhat self-serving. [28] The third and fourth debts are, respectively, a joint MasterCard credit card balance and an amount owed to Revenu Québec. E.

H.simply did not demonstrate at trial that the credit card balance relates to the family’s needs, and the amount owed to Revenu Québecflows from an amount not paid by the company of which E. H. was a director. Neither debt can be characterized as a debt of the familypatrimony without evidence indicating that it was used for the family patrimony. No palpable and overriding error has thus beendemonstrated. [29] The sixth and seventh grounds of appeal claim errors in determining the value of the movable property comprised in the familypatrimony. At trial, after discussion, E. H. admitted the value of the furniture.

The trial judge decided, based on that evidence, to dividethe value of the furniture and the family car. No palpable and overriding error has thus been demonstrated. [30] E. H. also argues that the trial judge erred in failing to consider the sale by S. I. of various movables taken from the familyresidence without colour of right. Again, on this matter, the evidence rested only on E. H.’s opinion on the value of the items, such thatthe judge was entitled to accept it or use his discretion to set the value: see, Droit de la famille — 2142, 2021 QCCA 93; Droit de la

famille — 181335 , 2018 QCCA 1046 ; Droit de la famille — 192503, 2019 QCCA 2129 . At one point, E. H. estimated the value at $5,705. There is here no palpable and overriding error that would justify the Court’s intervention. [ 31 ] In sum, the date of separation must be corrected, which affects the conclusion in paragraph 40 of the judgment. Also, the agent’s commission for the sale of the family residence ($9,000 each) must be deducted from the proceeds of that sale, which modifies the conclusion in paragraph 39 of the judgment.

FOR THESE REASONS, THE COURT: [ 32 ] DISMISSES the principal appeal, without legal costs; [ 33 ] ALLOWS the incidental appeal in part; [ 34 ] MODIFIES paragraphs 39 and 40 of the trial judgment as follows: [39] DECLARES that Ms. S. I. is entitled to receive $274,875 from the proceeds from the sale of the family residence and that Mr. E. H. will have to pay the difference between that amount and what she will receive after the judgment of the Court of Appeal in the case with Mr. Michel Primeau referred to above (Sup. Ct.# [...]), and CONDEMNS Mr. E. H. to pay Ms. S.

I. said difference, as the case may be; [40] ORDERS that the amounts accrued in the defendant's RREGOP pension plan after the marriage on September 4, 1994, and the QPP pension plan of both parties accrued from September 4, 1994, until December 27, 2013 , be partitioned between the two (2) parties and ORDERS them to accomplish any action, including the signature of documents, to comply with this conclusion; [ 35 ] WITHOUT legal costs in the incidental appeal. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. Mtre Andrew H.

Heft HEFT DROIT DE LA FAMILLE For Appellant Mtre Joseph Neudorfer SARNA NEUDORFER For Respondent Date of hearing: June 10, 2021