2014 QCCA 2145, 2014 QCCA 2145

Droit de la famille — 142919 2014 QCCA 2145 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024404-147 ( 500-12-306793-104 ) MINUTES OF THE HEARING DATE: November 20, 2014 CORAM: THE HONOURABLE FRANÇOIS PELLETIER , J.A. NICHOLAS KASIRER , J.A. DOMINIQUE BÉLANGER , J.A. APPELLANT COUNSEL S. M. Mtre MARIA R. BATTAGLIA ( Maria R. Battaglia, Avocats ) RESPONDENT COUNSEL G. I. Mtre JOSIE SCIANGULA ( Mercadante Di Pace )

On appeal from a judgment rendered on April 2, 2014 and rectified on April 14, 2014 by the Honourable Mr. Justice Jean-Yves Lalonde of the Superior Court, District of Montreal NATURE OF THE APPEAL : Family law – divorce – accessory measures Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 09:28 Commencement of the hearing. Submissions by Mtre Maria R. Battaglia. 10:25 Recess of the hearing. 11:00 Resumption. Submissions by Mtre Josie Sciangula will be not necessary. 11:01 Unanimous judgment pronounced by the Honourable Mr. Justice Nicholas Kasirer – see page 3. 11:06 Conclusion of the hearing.

Clerk BY THE COURT JUDGMENT [ 1 ] In a judgment rendered following a five-day trial at which the principal focus was a series of real estate transactions involving the spouses and their respective parents, the trial judge observed that the evidence was highly contradictory and that the testimony of the parties was particularly acrimonious (para. [32] of his reasons). [ 2 ] The judge was harsh with both parties when he reviewed the evidence of their financial transactions.

He observed that they often acted as prête-noms and by way of simulated acts, that at times they participated in dealings that were organized to shield assets from creditors on bankruptcy, and that often deeds and financial documents had been prepared – by the parties’ own account – to manipulate appearances (para. [33]). [ 3 ] The judge nevertheless proceeded, in considerable detail, to review the evidence of the financial arrangements between the spouses over the course of a 25-year marriage. In the end, he concluded that the appellant had failed to show bad faith towards him on

the part of his wife that would have justified, according to the jurisprudence decided pursuant to

article 422 C.C.Q., an unequal partition of the family patrimony (paras [83] to [86]). Moreover, the judge decided that, on the facts, the appellant had failed to show that he had contributed to the enrichment of his wife in a manner that would justify awarding a compensatory allowance pursuant to

article 427 C.C.Q. (paras. [87] to [89]). *** [ 4 ] The appellant raises numerous grounds of appeal. None of them has any merit. [ 5 ] It should be said at the outset that impressions of dubious financial arrangements and unnecessarily acrimonious pleadings observed by the judge at trial persist on appeal. The written arguments of both parties encourage the view that neither is inclined to be completely forthright in his or her presentation of the facts. *** [ 6 ] No serious argument has been raised that the judge erred in law in identifying the criteria relevant to the claim for unjust enrichment in marriage recognized by the legislature in

article 427 C.C.Q. Instead, the appellant has asked this Court to review the whole of the family’s finances presented at trial that failed to sway the judge. [ 7 ] It is trite law to say that it is not the role of an appellate court to retry a case on the facts. [1] In Lacroix v. Valois , [2] the Supreme Court of Canada made this point particularly clear in respect of claims made for a compensatory allowance where it underscored the deference owed on appeal to findings of fact at trial.

This is particularly the case where, as here, credibility is at issue. [3] [ 8 ] In these circumstances, the appellant has failed to show a palpable and overriding error of fact that would allow the Court to disturb the judge’s decision to dismiss his claim for a compensatory allowance. *** [ 9 ] The appellant alleges bad faith on the part of his wife to substantiate his claim for unequal partition of the family patrimony. Before this Court, he repeated many arguments explicitly dismissed by the trial judge. [ 10 ] The evaluation of conduct amounting to bad faith within the meaning of

article 422 C.C.Q. is a finding of fact. The judge decided that the respondent contributed to the expenses of the household in proportion to her ability to do so. He noted that while the appellant may have contributed financially more than his wife, this financial contribution did not amount to a situation justifying unequal partition (paras [83] and [84]).

No reviewable error was shown on this finding. [ 11 ] As for the claim that his parents made him a gift towards the cost of acquiring the family residence, the judge explicitly rejected this argument, saying that the evidence of a gift by parents of both sides – both spouses had made similar arguments – was inconclusive (para. [50]). No reviewable error has been shown. *** [ 12 ] The appellant did not appeal the interlocutory decision to maintain the respon-dent’s objection to evidence taken from an out- of-court examination. That decision was subject to appeal, with leave, within 30 days of judgment.

It cannot now be appealed. [4] [ 13 ] None of the other arguments raised by the appellant has any merit. [ 14 ] FOR THE AFOREMENTIONED REASONS , the Court: [ 15 ] DISMISSES the appeal, without costs given the nature of the dispute. FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A.