2012 QCCQ 14394, 2012 QCCQ 14394

X c. G.L. 2012 QCCQ 14394 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Civil Division No: 500-32-124897-101 DATE: December 6, 2012 ______________________________________________________________________ PRESIDED BY THE HONOURABLE HENRI RICHARD, J.C.Q. ______________________________________________________________________ X Plaintiff v. G. L. -and- K. LA.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] X (" X ") is the beneficiary of a promissory note signed by his father, G. L. (" G… "), in the amount of $5,000. Still unpaid, X claims from G. the said amount. [ 2 ] After amendments, Xadds his mother K. La. as co-defendant because she receives payment from G. of the same amount, in order for her to execute her obligation of support towards X. Questions in dispute [ 3 ]

a) Is there a legal link between X and Ms La. related to the promissory note ?

b) Can G. plead compensation between the debt from the promissory note and the payment to Ms La.? The fact and analysis [ 4 ] On November 9, 2001, G. signs the following promissory note: "Upon X's 18 th birthday, on […] 2007, I promise to pay to the order of X, the sum of $5,000.00 (Canadian currency), and yearly interest at the rate of 5 per cent on said sum from today." [ 5 ] In a judgment of divorce dated November 12, 2001 concerning Ms La. and G., a reference to the said promissory note appears: "6.

That upon the child's (X) 18 th birthday or sooner, as the father deems fit, an amount of $5,000.00 will be provided to the child, coming from lottery winnings, the whole with accrued yearly interest regardless of the Defendant's (G.) solvency;" [ 6 ] In March 2006, in consequence of X's personal difficulties, he was placed at A Youth and Family Care Centre (" A "). [ 7 ] Ms La. disburses more than $5,000 for A fees. In order for Ms La. to assume payment for A fees, G. sends her $5,000 on July 10, 2006.

G. alleges that this amount correspond to the $5,000 due in virtue of the promissory note. [ 8 ] Also, the evidence shows that Ms La. disbursed more than $2,000 for X's studies and dentist's fees when he was staying with her. [ 9 ] From the evidence adduced, the Court concludes that there is no legal link between X and Ms La. related to the promissory note signed by G. on November 9, 2001. G. is the sole responsible of the debt stemming from this promissory note. [ 10 ] Also, in the judgment of divorce rendered on November 12, 2001, G. undertakes to provide to X the amount of $5,000 related to

the promissory note. [ 11 ] Moreover, the evidence shows that the $5,000 transferred by G. to Ms La. was used in order for her to execute her obligation of support towards X, which cannot be compensated or reimbursed, in application of articles 599 and 605 of the Civil Code of Québec (" C.C.Q. "): " 599. The father and mother have the rights and duties of custody, supervision and education of their children. They shall maintain their children . 605.

Whether custody is entrusted to one of the parents or to a third person , and whatever the reasons may be, the father and mother retain the right to supervise the maintenance and education of the children, and are bound to contribute thereto in proportion to their means ." [Emphasis added] [ 12 ] Also, An Act respecting health services and social services , R.S.Q., ch.

S-4.2, requires a contribution "of the user's father, mother, both of them jointly or any other person determined by regulation" if a user is "lodged in a facility maintained by a public or private institution under agreement, or taken in charge by an intermediate resource of a public institution or by a family-type resource" ( articles 512 and 513 ), such as Batshaw [1] . [ 13 ] Articles 1672 and 1673 C.C.Q. , in the

Chapter " extinction of obligations " and the Division called " compensation ", provide: " 1672. Where two persons are reciprocally debtor and creditor of each other, the debts for which they are liable are extinguished by compensation, up to the amount of the lesser debt. Compensation may not be claimed from the State, but the State may claim it. 1673. Compensation is effected by operation of law upon the coexistence of debts that are certain, liquid and exigible and the object of both of which is a sum of money or a certain quantity of fungible property identical in kind.

A person may apply for judicial liquidation of a debt in order to set it up for compensation." [ 14 ] In order to plead "compensation", two persons must be "reciprocally debtor and creditor of each other", "upon the coexistence of debts that are certain, liquid and exigible". [ 15 ] In application of those principles, the Court concludes that G. cannot plead compensation because he fails to establish any debt owed to him by X. [ 16 ] The Court reiterates that the payment of sum in execution of the obligation of support cannot be compensated with a debt that is clearly due, in virtue of the promissory note duly signed by G. [ 17 ] In consequence thereof, the Court concludes that X’s demand is well founded both in fact and in law towards G. and must be dismissed towards K.

La. THEREFORE, the Court: GRANTS X's claim against G. L.; DISMISSES X's claim against K. La., without costs; CONDEMNS G. L. to pay to X $5,000 with interest at the annual rate of 5 %, as from August 25, 2010; CONDEMNS G. L. to pay to X $159 as judicial fees. __________________________________ Henri Richard, J.C.Q. Date of hearing: October 29, 2012