2015 QCCA 1058, 2015 QCCA 1058

Droit de la famille — 151417 2015 QCCA 1058 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024564-148 (500-12-302570-100) MINUTES OF THE HEARING DATE: June 12, 2015 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. GENEVIÈVE MARCOTTE , J.A. JEAN-FRANÇOIS ÉMOND , J.A. APPELLANT COUNSEL L. Z. Mtre MAY SAU MEI CHIU ( Ouellet Nadon et Associé

s) RESPONDENT S. G. In person On appeal from a judgment rendered on June 10, 2014, by the Honourable Madam Justice Sylviane Borenstein of the Superior Court, District of Montreal.

NATURE OF THE APPEAL : Accessory measures - family patrimony Clerk: Marcelle Desmarais Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on June 11, 2015. 9 h 30 By the Court: judgment – see page 3.

Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] The parties were divorced by judgment rendered on November 12, 2010, which did not rule on the partition of their assets, but reserved their rights in this regard. [ 2 ] In February 2013, the appellant filed a “motion on accessory measures and contempt of court”, [1] requiring the partition of the ex-spouses' assets and demanding joint custody of the children. [ 3 ] On June 10, 2014, the Superior Court ratified a “consent to judgment on accessory measures”, signed by both parties on the second day of the trial (June 10, 2014). [2] It also ruled on the only remaining subject of dispute between the parties and decided that the duplex owned by the respondent, which she bought in November 2007, is not part of the family patrimony pursuant to art. 415 C.C.Q. , “not having been a family residence”. [ 4 ] Except for that brief comment, the trial judge did not disclose the reasons underlying her conclusion, although, at the end of the hearing, she also mentioned that: Okay.

And you, I know your position. You (inaudible). I... as I said, I have contradictory evidence and therefore, I cannot rule that it's part of the family patrimony. So if you give me the consent signed... [ 5 ] There was indeed contradictory evidence, aplenty, on the subject of the duplex, and particularly on the date when the parties actually ceased living together (September 2007, according to the respondent; August 2009, according to the appellant), and the nature of their cohabitation between 2007 and 2009. Both elements were crucial to the resolution of the dispute.

The judge had the duty to address that contradictory evidence and she erred in law in deciding that, because of it, she could not “rule that [the duplex] is part of the family patrimony”. [ 6 ] Of course, we may assume that the trial judge was not convinced by the evidence submitted by the appellant, nor by his testimony, but we do not know why.

Nor do we know why she chose to give credence to the respondent's testimony, and did so despite the fact, that, in para. 19 of the consent to judgment on accessory measures which was ratified on the same day, the respondent apparently recognized that the parties lived together until August 2009. [3] The judge did not discuss this flagrant contradiction, which, perhaps, she did not notice and which was not, it must be said, brought to her attention by appellant's counsel.

Nevertheless, whether or not she noticed it, we are left with a most uncomfortable situation (and the more so since appellant's counsel, at the hearing before this Court, conceded that the admission made by respondent in the consent to judgment may not have been as clear as it seems). [ 7 ] In the present case, the absence of reasons from the trial judge is an obstacle to the exercise by this Court of its appellate function.

[ 8 ] We must also observe that the evidence adduced at trial was deficient and that the judge should have drawn the attention of the parties to the gaps in their proof, pursuant to art. 292 C.C.P. [ 9 ] In order to fill some of these gaps, both parties, in appeal, filed “new evidence” with their factums, but without obtaining prior authorization from the Court pursuant to art. 509 C.C.P. This evidence (one element of which is quite striking) [4] is not admissible (most notably because it existed at the time of the trial and could easily have been either discovered or adduced).

But even if it were, it could not help settle the matter because of its contradictory nature, which would require that the parties be afforded an opportunity to rebut. This cannot be done properly before the Court. [ 10 ] In the circumstances, considering the judgments of our Court in Droit de la famille – 132765 , 2013 QCCA 1781 , para. 3 , and Droit de la famille - 122252 , 2012 QCCA 1481 , para. 19 and ff., the Court has no other choice but to refer the matter back to the Superior Court.

As the Court wrote in Droit de la famille – 122252 : [49] La présente affaire est un cas clair d'insuffisance de motifs en matière familiale qui ne permet pas l'exercice valable du droit d'appel. En effet, les déterminations factuelles les plus élémentaires sur la crédibilité des parties et sur l'intérêt de l'enfant n'ont pas été faites par le juge de première instance, ne permettant pas à cette Cour d'exercer ses fonctions.

En présence d'une totale contradiction entre les témoignages des parties, la lecture et l'analyse de la retranscription du procès ne sauraient suffire à évaluer la crédibilité de chacun des témoins et à distinguer le vrai du faux.

La Cour ne peut faire fi de cette difficulté, et c'est pourquoi un nouveau procès s'impose. [ 11 ] Such is the situation here, a situation that can only be resolved by returning the file to the Superior Court and have the parties submit their evidence and arguments anew. [ 12 ] Equity considerations require that the consent to judgment signed by the parties on June 10, 2014, insofar as it relates to the China condo, be submitted again to the Superior Court for ratification.

Indeed, comments made by the parties during the hearing of the appeal appear to show that the respondent may want to explain – by adducing evidence – her view on the true meaning and scope of para. 19 of the agreement. [ 13 ] To be more precise, this means that the judgment will not be quashed insofar as it relates, directly or indirectly, to custody matters, contempt of court or assets other than the duplex and the China condo (including the rents derived therefrom). [5] [ 14 ] Needless to say, as it appears that the duplex is heavily mortgaged, the parties may wish to settle their dispute amicably in order to avoid any more costs.

FOR THESE REASONS, THE COURT: [ 15 ] ALLOWS the appeal and QUASHES the judgment appealed from as it relates to the duplex owned by the respondent, the parties' China condo and rents derived therefrom; [ 16 ] REFERS the matter back to the Superior Court, for a new hearing and adjudication of the appellant's motion on accessory measures on the topics listed in conclusion [15], supra ; [ 17 ] THE WHOLE , without costs. MARIE-FRANCE BICH, J.A. GENEVIÈVE MARCOTTE, J.A. JEAN-FRANÇOIS ÉMOND, J.A. Mtre May Sau Mei Chiu

For the appellant S. G. In person Date of hearing: June 11, 2015