2014 QCCQ 1726, 2014 QCCQ 1726

Chapman c. Giguère 2014 QCCQ 1726 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Civil Division No. 455-32-004075-130 DATE: March 12, 2014 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HOLLY CHAPMAN Plaintiff v.

RYAN GIGUERE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Holly Chapman and Ryan Giguere had one child together, Lucas, but they are now separated. The plaintiff Chapman is claiming the sum of $4949.30 from her former spouse because of a tax credit that she allegedly assigned to him, in addition to legal fees. [ 2 ] Mr. Giguere refuses to pay, contending that the plaintiff failed to provide him with supporting documents. He, in turn, is claiming $424, namely for the loss of his day at work.

JC00K1 [ 3 ] After their separation, the parties had to choose who, the mother or the father, could declare Lucas as a dependant for the year 2011. [ 4 ] The evidence showed that both parties filed their tax returns for the year 2011 and indicated their son as a dependant, despite the separation.

The tax returns led the tax authorities to send the parties a letter requesting additional information (Exhibit D-4 for the defendant Giguère). [ 5 ] The letter, of which it is assumed the plaintiff received a similar version, asked the parties to contact the tax authorities and, ultimately it seems, to choose between the parents the one who would declare Lucas as his or her dependant. [ 6 ] The information had to be transmitted rapidly. At the time, the two parties, who were in the process of separating, each had an attorney.

According to numerous emails (Exhibit P-2), it was established that the choice to indicate the parties’ child as a dependant of the defendant Giguère could result in the obligation for the plaintiff Chapman to repay $1856.59 in taxes to the federal government. To accept that disadvantage, the parties came to an agreement with the consequence that Ryan Giguère would repay half that amount to the plaintiff, i.e. $949.35.

To substantiate the agreement, the parties signed a letter to the tax authorities on December 5 and 6, 2012. [ 7 ] According to Holly Chapman, rather than paying that amount, the defendant Giguère signed document P-1, by which he agreed, on certain conditions we should come back to, to make the payment.

He subsequently refused to pay the amount concerned. [ 8 ] Over and above that amount, the plaintiff Chapman is claiming an additional $4000 representing the legal fees she incurred in the proceedings for separation from the defendant Giguère. [ 9 ] In his defence, Ryan Giguère explained that the agreement entered into with the attorneys was that he would pay half of the tax consequences for Holly Chapman of the choice to indicate Lucas as his dependent child for the year 2011. [ 10 ] He said that the figure according to which the agreement had been entered into was based on a calculation by Holly Chapman’s attorney and that he had accepted it until he spoke with his accountant, who told him that the figures in question seemed ridiculous.

So they did not know what amount was in question and, before signing the document, filed as Exhibit P-1, it was [TRANSLATION] “adjusted” to specify that the refund would be made further to the plaintiff’s amended notice of assessment. But despite repeated requests, the plaintiff has still not deigned to show him the notice of assessment. However, he still agrees to pay half the amount.

According to his own calculations, the amount is $319.65, half of which is $159.83. [ 11 ] Given what he considers to be the plaintiff’s frivolous request, he is claiming from her his loss of time in the amount of $424. [ 12 ] The Civil Code of Québec defines the burden of proof as follows:

2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. 1991, c. 64, a. 2803. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires moreconvincing proof. 1991, c. 64, a. 2804. [13] In the case at bar, the Court concludes that no one is able to explain how the basic amount alleged to be $1856.59, to be dividedin two, was derived.

Nothing in the correspondence explains it, and neither the plaintiff nor the defendant was able to provide anyclarifications. Furthermore, the figure of $949.35 is not half of that amount, which should be $928.30. Why the difference (of $21.05)?Here again, no one has an answer. [14] What is clear, however, is that the two parties intended to ensure that Ryan Giguère would compensate Holly Chapman for halfof the consequence of their joint tax choice.

It was never a question of that payment, regardless of its size, enriching or impoverishinganyone whatsoever. [15] The document signed by Ryan Giguère is in keeping with that affirmation. It begins with: “Upon receiving a notice ofassessment from Revenue Canada”. The payment is linked to that notice. There could not be one without the other. It was not a questionof a promissory note or a simple debt acknowledgment. [16] But here again, the evidence is not contested on the subject. Never did the plaintiff show the document to the defendantGiguère.

Even at the time of the hearing, she did not produce it. [17] The payment condition has therefore not been met and, hence, the Court will not order payment other than the amountrecognized, i.e. $159.83. [18] The rest of the claim cannot be granted (see, for example, on this issue, the ruling of the Québec Court of Appeal in Viel v. Lesentreprises immobilières du terroir ltée, (QC CA)). At the hearing, the plaintiff indicated that, in any case, shewould not insist on those amounts. [19] The same is true of the defendant’s cross demand. It is not a valid claim.

A defence in a proceeding requires travel, a loss oftime to come to Court, which is inherent in the application and exercise of the rights. The amounts involved cannot be granted. ACCORDINGLY AND THEREFORE, THE COURT: [20] ALLOWS the claim IN PART; [21] ORDERS the defendant to pay the plaintiff the sum of $159.83 with interest at the legal rate, plus the additional indemnityprovided for in

article 1619 of the Civil Code of Québec, from service, with costs; [22] DISMISSES the cross demand, without costs. __________________________________ Serge Champoux J.C.Q. Date of hearing: January 27, 2014