2022 QCCA 531, 2022 QCCA 531

Digiulian c. Succession de Digiulian 2022 QCCA 531 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029159-209 (700-17-014647-175) DATE: April 19, 2022 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A. ANDREA LYNNE DIGIULIAN APPELLANT – Defendant/Cross-Plaintiff v. PATRICIA ANN GREENE , in her capacity of liquidator of the estate of the late Rita E. Digiulian RESPONDENT – Plaintiff/Cross-Defendant JUDGMENT [ 1 ] This appeal concerns a residential property that is located in Mont-Tremblant.

It was once owned by John DiGiulian (“ John ”) and his mother, Rita E. DiGulian (“ Rita ”). [1] [ 2 ] After John and Rita died, the respondent, Patricia Ann Greene (the “ Liquidator ”), in her capacity as liquidator of Rita’s estate, applied for partition to end the undivided co-ownership and for the sale of the residence. The appellant, John’s wife Andrea Lynne DiGiulian (“ Andrea ”), opposed this application in her capacity as John’s universal legatee, arguing that John had been the sole owner of the residence since 2008.

In addition, there was a dispute over the payment of expenses relating to the residence as well as to another residence that John and Rita owned, each party claiming to have paid more than their share. [ 3 ] The trial judge allowed the Liquidator’s application, concluded that at the time of her death, Rita was still an undivided co- owner of the residence, set the terms of its sale and decided the issues relating to the expenses. [2] Andrea appeals.

She takes issue with the trial judge’s evaluation of the evidence, her application of the rules of prescription, the refusal to recognize her preferential right to purchase the remaining share (art. 1033 C.C.Q. ) and the decision to allow the filing of an updated appraisal of the residence on the first day of the trial. [ 4 ] For the reasons that follow, the appeal will be dismissed. The evidence, including documents signed by Rita and John and correspondence exchanged between them, was open to

interpretation. The trial judge’s findings of fact are based on a reasonable reading of this evidence. Therefore, deference is owed. Moreover, there is no basis for this Court to intervene on the other grounds of appeal raised by Andrea. 1. Context [ 5 ] In the early 1980s, John and his mother Rita, [3] both citizens of the United States, purchased a property in the Mont-Tremblant area, located at [address 1]. In 1982, they purchased another property in the same neighbourhood, located at [address 2]. [ 6 ] The first property (the “ [address 1] ”) was rented to tenants.

The income generated was used to cover the expenses of both properties. The second property (the “ [address 2] ”), which is the subject of this appeal, was used as a secondary residence for the entire DiGiulian family. However, throughout the years, it was primarily John, Andrea and their children who made use of it and undertook a major renovation and expansion sometime in 2006 or 2007. [4] Some family members actually referred to it as John’s home. [ 7 ] Rita and Andrea, acting in her capacity as John’s universal legatee, agreed on the sale of the [address 1].

They did not, however, agree on how expenses for the maintenance of the property would be shared. [ 8 ] The situation is not so simple with regard to the [address 2] because the parties have opposing

interpretations of various documents signed by Rita and John as well as correspondence exchanged between them. This issue will be dealt with later in the judgment. For now, suffice it to say that Andrea claims that when John died in 2014, he had been the sole owner of this residence since 2008, while the Liquidator claims that Rita was still an undivided co-owner at the time of her death in 2017.

[ 9 ] The Liquidator therefore brought an application for the partition of the [address 2] and to recover her share of the expenses. Andrea contested the merits of this application and also claimed expenses for both residences. [ 10 ] As noted above, the trial judge allowed the Liquidator’s application, held that at the time of her death, Rita was a co-owner of the [address 2], set the terms for its sale and determined the issue of expenses. [ 11 ] It should be noted that the present appeal is part of a broader dispute between the parties.

The validity of Rita’s last will and testament, the capacity of John’s sister Diane to inherit, and the appointment of the Liquidator (who is also Diane’s friend) are all at issue before the Superior Court in a separate file. Therefore, as the parties have agreed, the proceeds of sale of the [address 2], should there be any, will be retained by a notary until the entire dispute is resolved. [5] 2. Issues [ 12 ] Andrea raises four grounds of appeal, the last two being subsidiary.

She claims that the trial judge erred: 1. in determining that Rita was, at the time of her death, a co-owner of the [address 2]; 2. in holding that Andrea’s claims for expenses relating to the [address 1] are prescribed; 3. in her application of art. 1033 C.C.Q. and by not granting an exclusive and preferential right to purchase the share held by Rita’s estate in the [address 2]; and 4. in allowing an expert’s report as to the value of the [address 2] to be filed at the beginning of the trial. [ 13 ] Each issue will be addressed in turn. 3.

Analysis 3.1 Ownership of the [address 2] [ 14 ] Andrea takes issue with the trial judge’s conclusion that Rita was a co-owner of the [address 2] at the time of her death. According to her, this determination renders meaningless the draft deed, prepared in 2007, which John and Rita signed before a Maryland notary public. Since this document is a “semi-authentic act” in accordance with art. 2822 C.C.Q. , or, at the very least, a private writing, the trial judge was wrong not to take it into account. Andrea also claims that the trial judge disregarded the rules of contractual

interpretation in her analysis of the evidence, thereby committing an error of law. [ 15 ] The evidence, however, is not as clear as Andrea suggests it is. [ 16 ] Four documents, dated between 1982 and 2008, each of which relates to the title of the [address 2], are key to the analysis:

i) On January 29, 1982, Rita and John signed a deed of purchase before Mtre Daniel Meyer Ouaknine, notary, and became undivided co-owners; ii) On January 3, 1985, before the same notary, John, represented by his power of attorney, transferred his undivided share of the residence to Rita for sixty-six thousand four hundred and thirteen dollars and fifty cents ($66,413.50) (the “ 1985 Transfer ” [6] ); iii) On March 23, 2007, another notary, Mtre Alexandra Côté, prepared a draft notarial deed which provided that Rita would transfer half of her rights in the residence [7] to John in exchange for $1.

This document, which contains the word “projet” (draft in English) was signed by Rita and John on an undetermined date and bore the seal of “Notary Public John H.

Gray of the State of Maryland,” whose commission expired on December 6, 2008 (the “ 2007 Draft Contrat ”); iv) On December 4, 2008, [8] Rita and John, through their representatives, signed a deed before another notary, Mtre Réjean Villeneuve, that cancelled the 1985 Transfer and specified that, as a result of this cancellation, “[...] the parties are owners retroactively as of January 3rd, 1985 of 50% of [the [address 2]]” (the “ 2008 Deed of Cancellation ”).

Each of these documents was published in the land register, except for the 2007 Draft Contract. [ 17 ] At trial, Andrea argued that John regained full ownership of the [address 2] in 2008, after the 2007 Draft Contract and the 2008 Deed of Cancellation were signed.

Her argument can be summarized as follows: in 1982, Rita and John became co-owners of the residence; between 1985 and 2007, Rita was the sole owner; in 2007, Rita transferred to John, for $1, her 50% share that she had acquired in 1982; and, finally, in 2008, the cancellation of the 1985 transfer of John’s undivided portion (50%) to Rita resulted in John becoming owner of 100%.

Moreover, she added, Rita confirmed to John her intention to give him full ownership of the residence when she wrote this to him on September 20, 2012: “[...] I also gave you ½ of one unit in Mont Tremblant ”, [9] to which John replied that he was “[...] grateful for all you have done and appreciate you gifting me your half of [address 2]”. [ 18 ] The trial judge rejected this argument.

She wrote: [53] The facts of the present matter differ from those analyzed by the Superior Court, in Savard (Succession de), submitted by Andrea in support of her position. [Reference omitted] In the present matter, the proof administered did not establish the existence of an

agreement whereby Rita transferred full ownership of [address 2] to John. [Reference omitted] [54] The evidence rather demonstrated that the 2007 Draft Contract remained a draft agreement, followed by the execution, before Notary, of the 2008 Deed of Cancellation.

As a result, Rita remained owner of an undivided half and John retrieved ownership, retroactively, of the other undivided half. [55] In support of its findings, the Court relied on the following evidence: - John’s last Will and Testament, dated October 21, 2005, stating the following [Reference omitted]: […] Andrea will hopefully retain ownership of our portion of the family home in Mt.

Tremblant Quebec Canada if my mother will straighten out the ownership of the property at [address 2] . […] [The [trial judge] underlined] - The letter addressed by Rita to John, dated September 20 th , 2012, confirming that “(…) she already gave him ½ of one unit in Mont Tremblant ” [Reference omitted]; - The letter of answer addressed by John to Rita, stating: “(…) Mom, you know these are the FACTS which are documented!

I am grateful for all you have done and appreciate you gifting me your half of [address 2] . (…)”; - The Sworn Declaration of Me Léliane Villeneuve, attesting that, on or about June 2 nd , 2014, she received documents from John and forwarded them to Mtre Yvan G. Paradis; [Reference omitted] - The Sworn Declaration of Mtre Yvan G.

Paradis, attesting that he received the document attached to his declaration from Mtre Villeneuve, on or about June 2 nd , 2014; [Reference omitted] - The following extract of the document attached to Mtre Paradis’ Sworn Declaration: (…) In order to accommodate the growing family the unit [address 2] underwent a series of renovations, the last of which was commenced in 2006 totalled a cost of in excess of $ 600,000.

The majority of this renovation was paid by John with the understanding from Rita that she would pay half of the renovation and that the [address 2] property would be left to him on her death . (…) [The [trial judge] underlined] - The ongoing sharing of the expenses related to [address 2], after 2008. [56] In addition, despite the argument raised by Andrea, the wording used in the 2008 Deed of Transfer confirmed the parties’ intent to cancel the 1985 Transfer of January 3 rd , 1985, and to remain equal undivided owners of [address 2], retroactively to that date. [57] The Court concludes that the Estate and Andrea are the equal undivided co-owners of [address 2]. [ 19 ] In the Court’s view, the judge’s analysis is both thorough and well-supported by the evidence.

Andrea has failed to identify a palpable and overriding error of fact or an error of law that would justify this Court’s intervention. [ 20 ] Andrea rightly claims that the trial judge did not give weight to the 2007 Draft Contract. Even though it was signed by Rita and John and bears the seal of a Maryland notary public, she determined that it was merely a draft and not a final agreement.

The trial judge committed no error of law or palpable error of fact in this regard. [ 21 ] Even if the 2007 Draft Contract could be characterized as a semi-authentic act (art. 2822 C.C.Q. ), a question the trial judge did not discuss, she still had to assess it in light of all of the evidence. [ 22 ] The 2007 Draft Contract and the 2008 Deed of Cancellation are difficult to reconcile.

The date and circumstances surrounding the signing of the 2007 Draft Contract are unknown, apart from the fact that it was apparently signed before December 6, 2008. [10] It is, however, clear that even though it bears the date of December 27, 2008, the 2008 Deed of Cancellation , prepared by Mtre Réjean Villeneuve, was signed no later than December 4, 2008 since it was published in the land register on that date. It is therefore reasonable to assume, as Andrea proposes, that the 2008 Deed of Cancellation was signed after the 2007 Draft Contract.

However, the 2008 Deed of Cancellation makes no reference to the 2007 Draft Contract which, it must be reiterated, was not published in the land register. Moreover, it expresses the signatories’ wish to cancel the 1985 Transfer and to be recognized as co-owners “retroactively as of January 3rd, 1985 of 50% of the emplacement situated [on [address 2]].” [ 23 ] Unfortunately, the trial judge did not have the benefit of testimony from the parties who signed these documents; Rita, John and the Maryland notary public were all deceased at the time of the trial.

Their testimony almost certainly would have shed more light on the situation and, at the very least, would have established the date of signature of the 2007 Draft Contract. Given this ambiguity and the parties’ conflicting

interpretations, the trial judge correctly undertook to analyze the documents in light of the evidence as a whole, including the wording of the contracts, the circumstances in which they were entered into and the conduct of the parties (arts. 1425 and 1426 C.C.Q. ). [11] [ 24 ] On the basis of this analysis, the judge concluded that the 2007 Draft Contract was only a draft and that its signatories had, in fact, formalized their agreement by signing the 2008 Deed of Cancellation, a deed signed before a notary in Quebec and published in the

land register. [ 25 ] Furthermore, contrary to what Andrea argues, such a reading of the evidence is also consistent with Rita’s letter dated September 20, 2012 in which she wrote to John that she had given him half of the property. [ 26 ] Finally, as for the weight given by the trial judge to the sworn declarations of Mtre Léliane Villeneuve and Mtre Paradis and the documents attached thereto [12] , suffice it to say that it was up to her to interpret their significance and, contrary to what Andrea argues, she did not decide the authorship of the document sent to Mtre Paradis on June 2, 2014.

As has been stated repeatedly, in the absence of a palpable and overriding error, this Court cannot replace the trial judge’s reading of the evidence with its own

interpretation. [13] [ 27 ] Overall, the judge’s conclusion is supported by the evidence, such that deference is owed. [ 28 ] Therefore, there is no basis to intervene in regards to this ground of appeal. 3.2 Expenditures Related to the [address 1] [ 29 ] The second issue concerns the trial judge’s determination that Andrea’s claim for expenses relating to the [address 1], which were incurred prior to October 16, 2014, is prescribed.

She argues that the trial judge erred in concluding that the email from Rita’s lawyer during discussions regarding the sale of the [address 1] did not amount to a renunciation of prescription. Further, Andrea argues that, at the very least, the trial judge should have found that prescription was suspended because she was unable to act until the property was sold.

Finally, she argues that the Liquidator’s October 2017 judicial application had the effect of interrupting prescription in accordance with art. 2892 C.C.Q ., particularly given that the Liquidator’s own claim was prescribed. [ 30 ] The argument that the Liquidator’s judicial application interrupted prescription does not need to be addressed because the trial judge reached the following conclusion: [44] The Originating Application interrupted prescription, with regard to all the parties, for any right arising from the same source.

In filing a claim requesting payment for revenues generated and disbursements incurred by the Estate, with respect to [address 1], the Liquidator interrupted prescription for a counter-claim arising from the same source. [45] The Originating Application was filed on October 16th, 2017. As a result, any claim made by Andrea, for amounts due prior to October 16th, 2014, is prescribed. [ 31 ] The fact that the Liquidator’s judicial application, which was subsequently withdrawn, was prescribed does not entitle Andrea to pursue claims that would otherwise be prescribed and this is precisely what she seeks to do.

The judgment of the Court of Québec [14] on which she relies is of no help to her. In that case, the court concluded that, in its written defence, the defendant had renounced to prescription for a portion of the debt.

The situation is quite different in this case, however, as Andrea did not argue that the Liquidator had acknowledged the disputed debt. [15] [ 32 ] As for Andrea’s argument regarding the renunciation of prescription, it is based on an email dated February 19, 2015, sent by Rita’s lawyer around the time the [address 1] was sold, in which he wrote: “[...] Any disputes or claims between our clients will be time consuming to work out and we can all pursue that resolution following distribution. [...]”. She argues that this statement formed part of the terms of the agreement for the sale of the [address 1].

It was, according to her, one of the conditions of the sale, as the parties had agreed that no claim for expenses or for income not received could be made until the property was sold on April 23, 2015. [ 33 ] The trial judge found that this did not amount to a renunciation of prescription and the Court sees no error in that conclusion. [ 34 ] First, prescription cannot be renounced in advance; only prescription acquired may be renounced (art. 2883 C.C.Q. ).

Hence, in February 2015 when the email was sent, no claim was as yet prescribed since the oldest expense dated back to 2013. [ 35 ] Second, although it may be either express or tacit (art. 2885 C.C.Q. ), renunciation must still be clear, certain and unequivocal, since it cannot be presumed. [16] In this case, it is understood that the parties agreed to sell the [address 1] without addressing their respective claims for expenses. The email from Rita’s lawyer does not state, explicitly or implicitly, that she is renouncing the claim.

Rather, the wording suggests that if there is any dispute or claim, it will have to wait until the sale is completed to be addressed. It does not constitute a clear acknowledgement that such disputes or claims exist.

Moreover, although Andrea did not argue this point, it should be added that it cannot constitute a renunciation to the benefit of the time elapsed. [ 36 ] Finally, the Court also rejects Andrea’s argument in relation to the suspension of prescription on the basis of an impossibility to act between February 19, 2015 (the date of the email from Rita’s lawyer) and April 23, 2015 (the date of the sale of the [address 1]). There is no de facto impossibility to act here, but even if there were, this suspension would only be for two months and three days.

The claims for expenses that pre-dated August 2014 would still be prescribed. [ 37 ] This second ground of appeal must therefore be rejected. 3.3 Preferential and Exclusive Right to Purchase [ 38 ] Third, Andrea claims that the judge erred in refusing to recognize her preferential and exclusive right to purchase the share held by Rita’s estate in the [address 2] at its fair market value on the date the application for partition was filed (October 2017).

She relies on art. 1033 C.C.Q. , which, she argues, applies in this case because there were four co-owners (herself, on the one hand, and Rita’s three heirs, on the other). In addition to appealing to the principles of equity and invoking the offers already made in the past for the purchase of the property, Andrea argues that the sale to a third party would jeopardize her rights because of the proceedings currently pending before the Superior Court regarding the validity of Rita’s will.

[ 39 ] The Court does not find these arguments to be persuasive. [ 40 ] As a matter of principle, no one is required to remain in indivision. If an undivided co-owner refuses to put an end to indivision, another co-owner can file an application for partition under art. 1030 C.C.Q. : 1030. No one is bound to remain in indivision. Partition may be demanded at any time unless it has been postponed by an agreement, a testamentary provision or a judgment, or by operation of law, or unless it has become impossible because the property has been appropriated to a lasting purpose. 1030.

Nul n’est tenu de demeurer dans l’indivision. Le partage peut toujours être provoqué, à moins qu’il n’ait été reporté par une convention, par une disposition testamentaire, par un jugement ou par l’effet de la loi, ou qu’il n’ait été rendu impossible du fait de l’affectation du bien à un but durable. [ 41 ] As Kasirer, J.A. (as he then was), sitting as judge alone, noted in Wang v. Deng , [17] there are exceptions to this rule.

Article 1033 C.C.Q. sets out one of these exceptions: 1033. If a co-owner objects to the maintenance of the indivision, the other co-owners may satisfy him at any time by apportioning his share to him in kind, provided it is easily detachable from the rest of the undivided property, or in money, as he chooses. If the share is apportioned in kind, the co- owners may make the allotment least prejudicial to the exercise of their rights. If the share is apportioned in money, the share of each co-owner is increased in proportion to his payment. 1033.

Les indivisaires peuvent toujours satisfaire celui qui s’oppose au maintien de l’indivision en lui attribuant sa part, selon sa préférence, soit en nature, pourvu qu’elle soit aisément détachable du reste du bien indivis, soit en numéraire. Si la part est attribuée en nature, les indivisaires peuvent accorder celle qui est la moins nuisible à l’exercice de leurs droits. Si la part est attribuée en numéraire, la part de chaque indivisaire est alors augmentée en proportion de son paiement. [ 42 ] As the trial judge noted, Kasirer, J.A. (as he then was) clearly explained the purpose of this provision.

He wrote: [18] [32] While it is certainly true that the Civil Code of Québec is more welcoming to indivision as a business model, based on an agreement between co-owners, than was the Civil Code of Lower Canada , indivision by agreement remains a precarious state of affairs in the law of property in that postponing partition cannot be done indefinitely. The ancient principle that "nul n’est tenu de demeurer dans l’indivision" still obtains, as the text of

article 1030 C.C.Q. suggests, even if the new Code is not characterized by the same suspicion of undivided co-ownership as was the former law. In the reformed law of indivision there remains, to quote the expression of one scholar, a "droit de provoquer le partage" for each co-owner, even though this right is now subject to more plainly articulated exceptions than it was in the past. [33]

Article 1033 C.C.Q. provides for one of those exceptions. As an alternative to partition of the whole,

article 1033 C.C.Q. allows for unhappy co-owners to be bought out by those, like the appellants, who are inclined to continue doing business together as co- owners. It is a sign that the legislature favours the maintenance of indivision amongst remaining co-owners once those objecting to the status quo are "satisfied" by the effect of the buy-out allowed for at

article 1033 C.C.Q. But in the event that the buy-out fails, the impasse remains and the unsatisfied co-owners are still invested of their right to demand partition. [34] Appellants fail to recognize that the order for apportionment by elimination would have ended the indivision for the respondents and that, if it failed, the respondents still needed a remedy. The "attribution éliminatoire" in French law, which served as a model for

article 1033 C.C.Q., is understood as effecting a "partage partiel" in that "[c]et allotissement d'un indivisaire permet ainsi de lui rendre sa liberté tout en maintenant l'indivision entre les coïndivisaires qui le souhaitent". In this sense, it "ends the indivision", as the title to the

section of the Code suggests, in respect of the unhappy co-owners when the apportionment succeeds. When it fails, as in the present case, the impasse continues, and the right to demand partition pursuant to

article 1030 C.C.Q. for those unhappy co-owners remains in place. [References omitted] [ 43 ] This is consistent with the comments of the Minister of Justice in regards to art. 1033 C.C.Q. : Cet

article est de droit nouveau. Il vise à permettre aux indivisaires d’empêcher le partage par la volonté d’un seul et indique la façon de procéder à l’attribution éliminatoire. De manière générale, l’article favorise le maintien de l’indivision, puisque ce maintien demeure l’expression de la volonté majoritaire des indivisaires. [ 44 ] Professor Lafond also shares this reading of art. 1033 C. C.Q. , which is intended to promote the maintenance of indivision: [19] L'attribution éliminatoire n'est pas vraiment une cause de sursis du partage; elle a cependant pour effet de l'écarter. Pour éviter le partage

et régler le conflit qui les oppose, les copropriétaires peuvent toujours désintéresser celui qui s'oppose au maintien de l'indivision en lui attribuant sa part ( art. 1033 C.c.Q. ). Ce dernier conserve néanmoins le contrôle sur l'issue de la procédure puisque le choix lui revient d'être payé en nature ou en argent.

Le paiement ne peut être effectué en nature que si sa part est facilement détachable du reste du bien. […] Ce mécanisme fait obstacle à la seule solution possible en cas de désaccord, soit l'action en partage, laquelle peut devenir un instrument de chantage à l'égard des autres indivisaires si elle est exercée par un copropriétaire de mauvaise foi. Il favorise ainsi le maintien de l'indivision.

La part de l'indivisaire dissident est déterminée selon l'entente entre toutes les parties; à défaut d'accord, l'expertise ou l'évaluation est faite par une personne désignée par elles ou par le tribunal. […] Bien sûr, compte tenu de la fin qu'il recherche (le maintien de l'indivision), l'

article 1033 C.c.Q. s'applique uniquement si le nombre d'indivisaires est supérieur à deux . [Emphasis added.] [ 45 ] Finally, it should be added that the text of art. 1033 C.C.Q. itself sets out that “[…] the other co-owners may satisfy him at any time […] / [l]es indivisaires peuvent toujours satisfaire celui qui s’oppose au maintien de l’indivision […]”, which supports the view that there must be more than one other co-owner. [ 46 ] Given the purpose of this provision, the trial judge was correct to conclude that it does not apply when there are only two undivided co-owners.

When one of the two co-owners loses their interest, indivision automatically comes to an end.

As Rochon, J.S.C. (as he then was) wrote, maintaining indivision “ est impossible s’il n’y a que deux indivisaires : l’achat de la part de l’un par l’autre mettra nécessairement fin à l’indivision ”. [20] [ 47 ] Similarly, the trial judge was also correct in concluding that Rita’s undivided share in the residence devolved to her estate (arts. 613 and 625 C.C.Q. ), not to the Liquidator who had full administration of the property (art. 12 of the will) and was responsible only for its liquidation (arts. 776-777 and 804 C.C.Q. ).

According to Andrea, since there are three heirs to the estate (Rita’s three children), art. 1033 C.C.Q. applies. [ 48 ] The Court does not agree. First, the evidence does not disclose who the heirs to the estate are. Andrea invites the Court to assume that the heirs are Rita’s three children, without, however, specifying the basis for her assumption. Moreover, under the terms of Rita’s will (the validity of which is still in dispute), the net proceeds of the sale of her Canadian assets are to be distributed to an American trust.

Again, the evidence does not disclose who the beneficiaries of this trust are. [ 49 ] In addition, even if there were more than one heir and each of them was an undivided co-owner, art. 1033 C.C.Q. is still of no assistance to Andrea.

The proposed purchase of the undivided share held by the estate would have the effect of putting an end to the undivided co-ownership rather than maintaining it, thus defeating the purpose of this provision. [ 50 ] The trial judge therefore did not err in concluding that Andrea could not benefit from art. 1033 C.C.Q. [ 51 ] Andrea’s other arguments relating to the sentimental value of the residence and to the settlement offers made, which she alleges were unfairly refused by the Liquidator, cannot justify an intervention by this Court.

While the present dispute is unfortunate, it is up to the parties to find common ground to the extent that they are able to do so. When parties cannot settle their disputes, a court must adjudicate and its decision must be reached solely according to law. [ 52 ] Therefore, the third ground of appeal must also fail. 3.4 Filing a Report Regarding the Value of the Residence [ 53 ] Finally, Andrea takes issue with the trial judge’s decision to allow the filing, on the first day of the trial, of an expert’s report that assessed the value of the [address 2] as at January 1, 2020.

She claims that the trial judge made an erroneous distinction between a report and a complementary report and failed to apply the criteria established in Modes Striva Inc. c. National Bank of Canada . [21] [ 54 ] This ground of appeal will be disposed of in a few words. [ 55 ] As the judge noted in the decision she rendered on the second day of hearing, the purpose of this report was to establish the value of the [address 2] contemporaneously with the trial (January 1, 2020).

The only other appraisal report in the record that assessed the value of the residence had been filed by the Liquidator and was dated July 19, 2017. [ 56 ] There is no doubt that this evidence was relevant to the application for partition. Although the judge did not expressly mention the six criteria set out in Modes Striva in her reasons, they underpin her decision. As this was a report on the value of the residence as of the date of trial, the Liquidator certainly could not have filed it earlier.

The Liquidator had also raised the issue of the value of the residence in a timely manner by filing an initial expert report in July 2017. Furthermore, the trial judge took into consideration the harm that each party would suffer depending on whether she allowed or disallowed the filing of the complementary report. Lastly, the filing of the report is consistent with the sound administration of justice because of its relevance to the outcome of the case.

It is in the interest of the parties, in the event of partition, to obtain the actual value of the property. [ 57 ] Generally, it is not open to an appellate court to interfere with a judge’s exercise of discretion in such matters unless there has been an error of principle or an unreasonable exercise of discretion. [22] The Court finds no such error. There is therefore no reason to

intervene. FOR THESES REASONS, THE COURT : [ 58 ] DISMISSES the appeal, with costs. MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A. Mtre Matthew Meland GREENSPOON WINIKOFF For the appellant Mtre Adam Eidelmann EIDELMANN AVOCAT For the respondent Date of hearing: February, 2, 2022