2021 QCCA 329, 2021 QCCA 329

Droit de la famille — 21225 2021 QCCA 329 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027778-182 ( 540-12-020873-162 ) MINUTES OF HEARING DATE: February 25, 2021 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MARK SCHRAGER, J.A. MARIE-JOSÉE HOGUE, J.A. APPELLANT COUNSEL M. M. Mtre robert pancer ( Phillips Friedman Kotler ) Absent RESPONDENT COUNSEL L. T. Mtre joseph ionata Absent On appeal from a judgment rendered on July 5, 2018 by the Honourable Daniel W. Payette of the Superior Court , District of Laval .

NATURE OF THE APPEAL: Divorce – Deduction of the family patrimony – Amounts received or inherited . Clerk at the hearing : Lesly Ramos Courtroom: Antonio-Lamer HEARING 10:24 Commencement of the hearing. Continuation of the hearing held on February 22, 2021. The parties were excused from appearing in Court.

10:25 Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] In this appeal from the divorce judgment rendered on July 5, 2018 by the Superior Court, District of Laval (the Honourable Mr. Justice Daniel W. Payette), [1] Appellant raises nine grounds of appeal, essentially contesting every determination of the financial consequences of the divorce which the judge was called upon to resolve. [ 2 ] The couple was married for over 30 years, the marriage being subject to the regime of partnership of acquests.

The children are of the age of majority and were still living with Appellant, their mother, at the material times. They do not figure in the litigious issues. [ 3 ] During the marriage, Appellant worked in a bank and Respondent in various restaurants as a chef. [ 4 ] The parties purchased their first family residence in 1987. They borrowed $55,000 from Appellant’s parents in order to acquire it. The payment of the initial loan was due by November 25, 1992. On January 13, 1993, they renewed and increased the loan to $61,000 payable by January 13, 1998.

A hypothec was registered against the family residence to secure the loan. [ 5 ] Appellant’s parents passed away on October 10, 1993 (her mother), and on October 30, 2002 (her father). [ 6 ] In 2003, the parties decided to build a new family home. They entered into an agreement with a contractor to purchase land and have it build their house. In order to do so, Respondent allegedly obtained a $50,000 loan from his father payable on demand. [ 7 ] On December 22, 2003, the parties sold the first family home.

On the same date, the estate of Appellant’s father released the parties from the loan in order for them to complete the sale, as they had to provide a clear title to the purchasers. * * * [ 8 ] Before addressing each ground of appeal, it is necessary to state that the grounds of appeal raised pertain either to issues of fact or issues of mixed fact and law, despite Appellant’s statements that some of the issues raise questions of law. [ 9 ] The standard of appellate review of palpable and overriding error is well known.

Given the discretionary nature of many of the remedies applicable in family law cases, the standard of review is considered heightened. [2] An appeal court should not reassess the evidence to simply substitute its opinion or the exercise of its discretion for that of the judge unless the appellant satisfies its burden of identifying reviewable errors. [3] Such is not the case here. [ 10 ] Moreover, several of the judge’s conclusions on matters of fact included a finding that Appellant’s testimony lacked credibility or was not probative. [ 11 ] We now examine each of Appellant’s grounds of appeal. * * * [ 12 ] In determining the net value of the house in the division of the family patrimony, the judge refused to deduct, pursuant to

Article 418 C.C.Q. , the loan of $61,000 secured by a hypothec and received by the couple from Appellant’s parents. [ 13 ] The father’s estate [4] released the indebtedness, which Appellant argues was charged to her inheritance. Thus, she concludes it was a gift to her. [ 14 ] The judge found no evidence other than Appellant’s testimony, which lacked credibility, that the $61,000 was charged to Appellant’s inheritance, but in any event, the release converted the loan to a gift.

Appellant does not convince us that Respondent admitted anything else. [ 15 ] The parties were co-debtors of the loan, so the release benefited the two of them equally as a gift. Moreover and primarily, the loan debt had already been extinguished by triennial prescription when the release was granted, such that the release was of no value. [ 16 ] These conclusions, essentially of a factual nature, are not erroneous.

* * * [ 17 ] The judge did permit a $50,000 deduction in favour of Respondent from the value of the family home because it was a loan from his father advanced to him to assist in the construction of the house. [ 18 ] The loan was repayable on demand. Three years had passed from its creation, without demand for payment, such that it was prescribed, as Appellant submits. [5] Thus, the loan became a gift to Respondent. The judge’s reasoning might have been more explicit, but he was evidently applying the same legal logic as with the monies received by the couple from Appellant’s parents.

There are other examples in reported cases of loans or balances of sale that became gifts by forgiveness. [6] Based on the circumstances, a judge could decide that a loan to the couple, once forgiven, becomes a gift to one of them only. [7] That, however, was not the case here, as the judge decided based on his assessment of the evidence. [ 19 ] Appellant’s denial that monies were advanced is simply not convincing in the face of the preponderant facts entered in evidence and accepted by the judge, which facts included a notarial deed of loan and entries by Appellant on a document exchanged with the contractor which built the house. [ 20 ] There is no error here that might invite the Court’s intervention. * * * [ 21 ] The judge granted Appellant 60 days to purchase the house as opposed to the 6 months requested.

The judge gave reasons for this purely discretionary conclusion and there is no argument made out to convince the Court to substitute its discretion for that of the judge. In any event, Appellant has had well over 6 months since the date of the judgment (July 2018) to organize herself so as to be able to buy out Respondent. * * * [ 22 ] While the value of the furnishings in the house as established by the judge ($40,000) may seem high on a purely intuitive basis, there is no evidence (other than self-generated lists and Appellant’s testimony) on which to base appellate intervention to reduce this sum.

The judge found that Appellant’s testimony did not convince him that her list of furnishings were gifts received from her family.

Again, there is no justification for the Court to intervene. [8] * * * [ 23 ] The judge concluded that Appellant did not establish any circumstances that would give rise to an unequal partition of the family patrimony, as the parties were married for almost 30 years and Respondent did not squander the parties’ property. [9] [ 24 ] The judge noted the purchase of a luxury car by Respondent, but pointed out that it was a gift from his mother. [10] He also indicated that, although Respondent did not declare all of his income, and so failed to accumulate corresponding registered earnings, RRSPs or pension funds, he spent his earnings and gifts (save for the luxury car and a vacation trip) on the family expenses. [11] As such, the judge concluded that Respondent did not exhibit bad faith.

The judge underlined that Appellant was aware of the situation and benefited from Respondent’s “fiscal delinquency”. [12] [ 25 ] Appellant, as the spouse claiming an unequal partition of the family patrimony, has the burden of persuading the Court that adherence to the general rule of equal division [13] would be unjust in this case. [14] [ 26 ] However, there is no evidence of economic misconduct ( faute économique ) committed by Respondent which would support the contention that an injustice would arise from an equal division of the family patrimony.

The evidence reveals that Respondent contributed to the family patrimony up to his financial means.

The contention that Appellant might have contributed more to the family patrimony is not a ground for an unequal division of the family patrimony. [15] Rather, the unequal partition of the family patrimony should result from an economic fault [16] and, as the judge noted, no such fault was proven in this case. [17] [ 27 ] Hence, apart from Respondent’s purchase of a Mercedes automobile and a vacation in Italy, both of which were made possible by a gift from his mother, his behaviour did not amount to economic fault.

As stated before, he contributed to the family expenses and, as the judge noted, the fact that he did not declare all his income does not constitute bad faith in the context of the parties’ economic union, as Appellant approved and benefited from such course of conduct. * * * [ 28 ] The judge did not err in exercising his discretion to refuse the $25,000 compensatory allowance sought by Appellant. [18] [ 29 ] There may be fewer assets of the marriage because of Respondent’s undeclared income, but there is no impoverishment of Appellant and enriching of Respondent caused by such state of affairs.

If he paid less income tax on earnings, that then went to pay household expenses, such that Appellant benefited as much as Respondent did. * * * [ 30 ] As a last minute submission at trial, Appellant sought a lump sum payment of $25,000, alleging that because of gifts from his family, Respondent’s income is higher than the income he declared in the proceedings. [ 31 ] The judge correctly dismissed this claim as an additional attempt to rebalance the division of assets. [ 32 ] Lump sums are in the nature of alimony and so are justified on the basis of the needs of one party and the resources of the

other.[19] Appellant conceded at trial that she did not qualify for spousal support.[20] Accordingly, the claim was correctly denied. * * * [33] The trial judge decided that Appellant was not entitled to a provision for costs, as the parties allocated disproportionate means to their dispute and litigated virtually every problem they experienced after their separation.[21] He also noted that Appellant had notestablished that she was in a position of financial weakness and that the debate between the parties was not alimentary in nature but focused on the partition of the family patrimony.[22] These are valid reasons not to grant a provision for costs. [34] Indeed, it appears from the evidence and the proceedings that, as the judge noted, both parties’ behaviour was to blame forthe protracted litigation.

They transformed what could have been a fairly straightforward divorce case into a complicated affair whereevery fact appears to have been contested, requiring verification if not investigation.

Their lack of cooperation caused the proliferation ofproceedings on both sides, which led them to allocate disproportionate legal resources to the case. [35] In addition, the judge concluded, based on the evidence, that the parties’ respective revenues were similar, which Appellant ishard pressed to refute given that she asserted that she had earned more than Respondent and was thus deserving of an unequal split in thefamily patrimony.

In any event, Appellant was not in a position of financial weakness compared to Respondent that would merit aprovision for costs. [36] Appellant does not convince this Court that the judge’s refusal constituted an arbitrary or incorrect exercise of his discretionmeriting appellate intervention.[23] FOR ALL OF THE FOREGOING REASONS, THE COURT: [37] DISMISSES the appeal, without legal costs given the nature of the case. JACQUES J. LEVESQUE, J.A. MARK SCHRAGER, J.A.

MARIE-JOSÉE HOGUE, J.A. [2] Droit de la famille — 182390, 2018 QCCA 1940, para. 24; Droit de la famille — 151855, 2015 QCCA 1244, para. 24. [15] M.T., supra, note 13, para. 23. See also: Droit de la famille — 15528, 2015 QCCA 1244, paras. 19 and 35. [16] M.T., supra, note 13, para. 28; Droit de la famille — 2142, 2021 QCCA 93, para. 38; Droit de la famille — 192424, 2019 QCCA2046, para. 37; Droit de la famille — 182390, 2018 QCCA 1940, para. 32; Droit de la famille — 18893, 2018 QCCA 663, para. 25. [18] Lacroix v. Valois, (SCC), [1990] 2 S.C.R. 1259, p. 1275. See also: P. (S.) v.

R. (M.), (SCC), [1996] 2 S.C.R. 842, paras. 30 and 34; Droit de la famille — 182097, 2018 QCCA 1600, para. 35; Droit de la famille — 133401,2013 QCCA 2059, para. 5. [23] Droit de la famille — 201116, 2020 QCCA 1055, para. 54; Droit de la famille — 19201, 2019 QCCA 272, para. 27; Droit de lafamille — 1768, 2017 QCCA 37, para. 6; Droit de la famille — 1625, 2016 QCCA 7, para. 39; Droit de la famille — 08169, 2008 QCCA200, paras. 14-16; Droit de la famille — 071796, 2007 QCCA 1012, para. 27.