2018 QCCA 656, 2018 QCCA 656

Droit de la famille — 18880 2018 QCCA 656 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026985-176 (500-12-314564-125) MINUTES OF THE HEARING DATE: April 19, 2018 CORAM: THE HONOURABLE ALLAN R. HILTON , J.A. MARTIN VAUCLAIR , J.A. GENEVIÈVE MARCOTTE , J.A. APPELLANT COUNSEL A. K. Mtre ANDREAS STEGMANN (Pearl & Associé

s) RESPONDENT COUNSEL S. R. Mtre ORNA E. HILBERGER (Hilberger & Associé

s) On appeal from a judgment rendered on July 14, 2017 by the Honourable Justice Lucie Fournier of the Superior Court, District of Montréal. DESCRIPTION : Family Law – Change of Consent – Corollary Relief .

Clerk: Philippe Charette Courtroom: Pierre-Basile-Mignault HEARING 11:54 Commencement of the hearing. Identification of counsel. 11:54 Submissions by Mtre Stegmann. 12:28 Recess. 13:58 Resumption of the hearing. 13:59 Submissions by Mtre Hilberger. 14:29 Reply by Mtre Stegmann. 14:39 Recess. 14:48 Resumption of the hearing. 14:49 BY THE COURT: Appeal dismissed, with legal costs. Conclusion of the hearing. Philippe Charette Clerk BY THE COURT JUDGMENT FOR THE REASONS TO BE FILED, THE COURT: [ 1 ] DISMISSES the appeal; [ 2 ] WITH legal costs, in application of

article 340, paragraph two of the Code of Civil Procedure . ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A.

GENEVIÈVE MARCOTTE, J.A. Droit de la famille — 18880 2018 QCCA 656 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026985-176 (500-12-314564-125) DATE: April 23, 2018 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. A. K. APPELLANT – Defendant v. S. R. RESPONDENT – Plaintiff REASONS FOR JUDGMENT RENDERED AT THE HEARING [1] At the conclusion of the hearing on April 19, 2018, the Court rendered the following judgment: “The Court dismisses the appeal, with legal costs, in application of

article 340, paragraph two of the Code of Civil Procedure .” [2] These are those reasons: [ 3 ] The appellant is appealing a Superior Court judgment which dismissed his application to modify corollary relief measures but granted the annulment of child support payable for the benefit of the eldest child, now of the age of majority.

The judgment under appeal also homologated a “Private agreement” signed by the parties on January 12 and 31, 2012, which the respondent had filed into the Court record upon the appellant failing to respect the terms of the Consent homologated by the divorce judgment rendered on April 16, 2014. [ 4 ] It also refused, at the request of the appellant, to order the sale of the family residence and ordered that the appellant transfer same to the respondent as provided under the divorce judgment. [ 5 ] The judge granted the homologation of the Private agreement which had been prepared by the parties, duly assisted by counsel, with full knowledge of their financial situation, interest and obligations.

She determined that this agreement formed an integral part of the Consent which the parties had chosen to file at the time of the divorce judgment. [ 6 ] By virtue of this agreement, the appellant had undertaken to pay additional amounts to the appellant, including but not limited to special expenses for the children, travelling expenses for vacation with the respondent, spousal support and additional child support together with collateral security to protect said payments, car leasing and related expenses of the respondent, as well as a lump sum compensatory amount.

The agreement also included a provision identical to the one contained at paragraph 4.3 [1] of the original Consent homologated by virtue of the divorce judgement, whereby in consideration for the respondent’s “renunciation to the family businesses assets, as well as any retained earnings or capital /loan balances reflected in the financial statements of the companies as at December 2010 […] the spousal support provided herein for the FATHER as, as well the CHILD SUPPORT and special expenses, shall not be modified, suspended or cancelled at any point in time by the FATHER whatever the changes in the circumstances, loss of income or change in financial situation or of business ventures of any kind whatsoever;” (capital letters in original text). [ 7 ] The judge described the context in which the Consent and the Private agreement were signed and the reasons which led the respondent to renounce to any claim to the assets of the family businesses in exchange for the appellant’s financial undertakings under the Private agreement.

[ 8 ] She also noted that the financial situation of the appellant had changed, as a result of the appellant having transferred many assets and doing business through third parties. After reviewing the facts and the positions as well as the principles pertaining to the variation of spousal support order under

section 17 of the Divorce Act as outlined by the Supreme Court in Willick v. Willick [2] and in L.M.P. c. L.S. , [3] the judge dismissed the appellant’s application, not without highlighting the many inconsistencies of his position: [45] Ainsi, Monsieur, tout en plaidant l’indigence, reconnait l’existence de prête-nom lui permettant de poursuivre ses activités commerciales et de maintenir un certain train de vie. Il requiert de retenir un revenu de 39 000 $ aux fins de la modification des mesures accessoires au jugement, alors même que les obligations qu’il consent à assumer ne le lui permettent pas.

La situation financière tel que dépeinte par Monsieur est invraisemblable, compte tenu même des paiements qu’il se défend d’avoir acquitté et qu’il offre de continuer de faire au bénéfice des enfants. À

titre d’exemple, l’institution scolaire privée coûteuse fréquentée par les enfants coûte pour la seule année 2016-2017, pour la cadette, Aliya, 21 265 $. Or, Monsieur consent à ce que ses obligations en faveur des plus jeunes enfants soient maintenues de même qu’une pension alimentaire pour Madame de 1 100 $ par mois. Même en ne tenant pas compte des autres obligations prévues au Consentement et au Private Agreement, le revenu de 39 000 $ que prétend avoir Monsieur ne lui permettrait pas d’acquitter les obligations alimentaires qu’il offre d’assumer.

De plus, Monsieur demande de réduire ses obligations financières envers Madame qu’il s’était engagé à respecter en n’y mettant aucun terme, en contrepartie d’une renonciation complète et finale de sa part dans les affaires de la famille où elle était impliquée pour y avoir consacré temps et énergie et à laquelle elle avait droit à

titre d’acquêts. [ 9 ] The appellant argues in appeal that the judge failed to apply the principles set out by the Supreme Court in L.M.P. c.

L.S. , which require the Court to examine whether “there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order”. [4] He asserts that the judge failed to mention the specific changes alleged with respect to his losses pertaining to the restaurant, hotel and parking lot operations which could not be contemplated at the time of signature of the Consent and Private agreement. [ 10 ] The appellant further contends that the judge gave excessive weight to the terms of the Consent and Private agreement which stipulated that they could not be modified “whatever the changes in the circumstances, loss of income or change in financial situation or of business ventures of any kind whatsoever”. [ 11 ] The standard of review in appeal in matters of this nature [5] dealing with the appreciation of facts is that of palpable and overriding error.

In the case at hand, no such error has been demonstrated. [6] [ 12 ] The appellant failed to convince the trial judge that there had been significant changes to his financial situation which could not be envisaged at the time of signing the Consent and Private agreement, after highlighting the context in which these agreements had been signed and the manner in which the appellant had proceeded to dispose of his assets after the divorce and operate his businesses under the name of third parties. [ 13 ] He has failed again to convince this Court that the judge committed any error in concluding in the manner that she did. [ 14 ] Given the transfer and sale of the family residence since the judgment was rendered, the issue pertaining to the order to transfer the residence in accordance with the divorce judgment has become moot and need not be addressed. [ 15 ] Nor can this Court address the changes alleged by the appellant since the judgment under appeal, absent any permission to file new evidence and in keeping with the principle that the Superior Court remains the best suited forum to address changes in the situation of the parties. [7] [ 16 ] As far as legal costs are concerned, given the circumstances of the case, the Court is of the opinion that they should be borne by the appellant, pursuant to

article 340 paragraph two of the Code of Civil Procedure . ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. Mtre Andreas Stegmann Pearl & Associés For Appellant Mtre Orna E. Hilberger Hilberger & Associés For Respondent Date of hearing: April 19, 2018