2022 QCCA 1106, 2022 QCCA 1106

Gothelf Phillips c. Succession de Douek 2022 QCCA 1106 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029643-210 (500-17-116834-212) DATE: August 16, 2022 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. PETER KALICHMAN, J.A. ROSLYN GOTHELF PHILLIPS APPELLANT – Plaintiff v.

LA SUCCESSION D’ALBERT DOUEK RESPONDENT – Defendant and NICOLE MAGDER DOUEK MAUREEN ROSEN DOUEK OFFICIER DE LA PUBLICITÉ DES DROITS DE LA CIRCONSCRIPTION FONCIÈRE DE MONTRÉAL MARIE-CLAUDE DRAPEAU (HD 1189, PAQUETTE, HUISSIER DE JUSTICE) IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] This is an appeal from a judgment of the Superior Court in the district of Montreal (the Honourable Marc St-Pierre) rendered on July 28, 2021 and rectified on July 29, 2021, quashing a seizure before judgment. * * * [ 2 ] The Late Albert Douek ( Albert [1] ) was married to the Late Bertha Goliger Douek ( Bertha ).

They had two daughters, Maureen Rosen Douek ( Maureen ) and Nicole Magder Douek ( Nicole ), who are the sole liquidators of their parents’ estates. [ 3 ] Although he remained married to Bertha until his death, Albert began a romantic relationship with the Appellant, Roslyn Gothelf Phillips ( Roslyn ), in the 1980’s. They lived together from 2000 until Albert’s death in 2012. [ 4 ] Following Albert’s death, a dispute arose between the parties over the validity of several wills that he had signed.

By judgment dated March 19, 2020, the Honorable Frédéric Bachand, J.S.C. (as he then was), ruled in Roslyn’s favour and declared that the only valid will was one that Albert had signed in April of 2012 (the Will ). [2] The Will contained a specific bequest to Roslyn in an amount of $700,000 and Albert’s estate was ordered to pay her that amount. The judgment of Justice Bachand has since been confirmed by the Court. [3] [ 5 ] In October, 2020, Roslyn published a legal hypothec against a residence belonging to Bertha (the Residence ).

According to Roslyn, the Residence was part of the family patrimony formed by Bertha’s marriage to Albert. [ 6 ] The Superior Court (the Honourable Dominique Poulin), ordered the cancellation of the registration of the legal hypothec. [4] Justice Poulin concluded that Roslyn has no real right in the Residence and mentioned that the appropriate recourse for a creditor in Roslyn’s position is an oblique action. [5] A motion for leave to appeal Justice Poulin’s decision was denied. [6] [ 7 ] In July, 2021, Roslyn brought an action as a creditor of Albert’s estate against Maureen and Nicole, to: (

i) compel them to liquidate the estate and, in particular, Albert’s share in the family patrimony; and (ii) respect the obligation to pay her the $700,000 bequest that had been recognized in the judgment of Justice Bachand. [7] [ 8 ] In the context of her action, Roslyn was authorized to seize the Residence before judgment. The seizure was based on: (

i) Roslyn’s fear that without a seizure the recovery of her claim might be in peril (art. 518 of the Code of Civil Procedure ( C.C.P. ); and (ii) the right of a spouse to seize property of the other spouse for the share they would be entitled to upon dissolution of the matrimonial regime (art. 519 C.C.P .). The allegations in support of the seizure are summarized below:

8.1. As the beneficiary of a particular bequest of $700,000 that has been declared enforceable by judgment, Roslyn is entitled to exercise the rights of Albert’s estate and to seize the Residence for the estate’s share in the family patrimony established as a result of Albert’s marriage to Bertha; 8.2. The liquidators have failed to take steps to liquidate Albert’s estate; 8.3. Maureen has gone on record as saying that Roslyn will not get a penny from Albert’s estate; 8.4.

While Albert was gravely ill, Maureen and possibly Nicole, made him sign documents which had the effect of depriving his estate of close to $3,000,000; and 8.5. Given the animosity of Maureen and Nicole towards her and their efforts to strip Albert’s estate of its assets, Roslyn fears that without a seizure before judgment the recovery of her claim would be in jeopardy as they can sell the Residence and arrange not to honour the terms of the judgment rendered by Justice Bachand. [ 9 ] Maureen and Nicole brought an application to quash the seizure.

They raised a number of arguments, including that the Residence was not part of the family patrimony and that Roslyn’s action against them was prescribed. In addition, they denied that they had ever transferred assets out of their father’s estate. [ 10 ] By judgment rendered on July 28, 2021 and rectified the following day, the seizure was quashed by the Honourable Marc St- Pierre, J.S.C. He agreed with Roslyn that the Residence was part of the family patrimony but ruled that, as a third party, Roslyn could not invoke

article 519 C.C.P. since this remedy is only available to spouses. Furthermore, he agreed with Maureen and Nicole that Roslyn’s action against them was prescribed. The judge ordered provisional execution of the judgment notwithstanding appeal. [8] [ 11 ] On September 2, 2021, Roslyn obtained leave to appeal the judgment of Justice St-Pierre and a stay of the provisional execution order. [9] She maintains that the judge erred in concluding that her action was prescribed and in his application of

article 519 C.C.P . Furthermore, she adds that even if the seizure was not justified under

article 519 C.C.P. , it was justified in virtue of

article 518 C.C.P. which the judge failed to address. [ 12 ] Maureen and Nicole argue that the Residence ceased to be part of the family patrimony created by the marriage of Albert to Bertha at least ten years before Albert’s death, when he began living with Roslyn. Accordingly, they submit that the conditions of

article 519 C.C.P. were clearly not met. Furthermore, they contend that the judge was correct in concluding that Roslyn’s action was prescribed since: (

i) any right Albert had in the family patrimony had to be exercised within three years of his death in 2012; and (ii) Roslyn was aware in August 2013 when she brought her proceedings against them in regards to Albert’s wills, of all the elements giving rise to her claim such that her right of action was prescribed in 2016. Finally, Maureen and Nicole argue that since Albert’s interest in the Residence was left to Bertha by particular title conditional on her renouncing to the family patrimony and since she did not do so, it is clear from the Will that it was left to them in equal shares as a legacy, leaving Roslyn with a claim against Albert’s estate and no right to seize under

article 519 C.C.P . * * * [ 13 ] A seizure before judgment can be authorized in virtue of articles 518 or 519 C.C.P ., which are reproduced below:

518. With the authorization of the court, the plaintiff may seize the defendant’s property before judgment if there is reason to fear that recovery of the claim might be jeopardized without the seizure. 519. In a proceeding for the annulment of a marriage or a civil union, for separation from bed and board or as to property, for divorce or for the dissolution of a civil union, or for payment of a compensatory allowance, each spouse, as of right, may seize before judgment movable property belonging to that spouse whether it is in the hands of the other spouse or a third person.

With the authorization of the court, each spouse may also seize property belonging to the other spouse for the share the spouse would be entitled to on the dissolution of the matrimonial or civil union regime; the court determines who is to be the custodian of the property so seized. 518. Le demandeur peut, avec l’autorisation du tribunal, faire saisir avant jugement les biens du défendeur, s’il est à craindre que sans cette mesure le recouvrement de sa créance ne soit mis en péril. 519.

Dans une instance en nullité de mariage ou d’union civile, en séparation de corps ou de biens, en divorce ou en dissolution d’une union civile ou en paiement d’une prestation compensatoire, chaque conjoint peut, de plein droit, faire saisir avant jugement les biens meubles qui lui appartiennent, qu’ils soient entre les mains de son conjoint ou d’un tiers; il peut en outre, avec l’autorisation du tribunal, faire saisir les biens de son conjoint pour la part à laquelle il aurait droit en cas de dissolution du régime matrimonial ou d’union civile et, en ce cas, le tribunal détermine qui en est le gardien. [ 14 ]

Article 519 C.C.P . provides for two different types of seizures. The first, which does not require court authorization, allows a spouse to seize property that belongs to them but is in the possession of the other spouse. The second allows a spouse to seize property belonging to the other spouse for the share that they would be entitled to on the dissolution of the matrimonial regime. The second type of seizure, which is the one at issue here, requires court authorization. [ 15 ] Regardless of whether it is carried out in accordance with

article 518 or 519 C.C.P ., a seizure before judgment that has been authorized may be quashed on the grounds that the allegations in the supporting affidavit are insufficient or false. [10] Both grounds can be examined in the course of a single hearing, as was done here. [ 16 ] The judge seized with an application to quash a seizure must avoid ruling on the merits of the claim. [11] In examining sufficiency, the judge must simply be satisfied that there is a logical connection between the facts alleged and the right to seize before judgment. [12] In regards to falsity, the judge need only be satisfied that the seizing party has established its allegations on a prima facie basis. [13] * * * [ 17 ] For the reasons that follow, the appeal will be granted. [ 18 ] First, the Court disagrees that the right to a seizure in virtue of

article 519 C.C.P . is only available to spouses and is not transmitted to the spouse’s estate. Since the right to the partition of family patrimony is transmissible to a spouse’s heirs [14] , it is logical to assume that a procedural remedy associated with that right would also be available to them. Furthermore, s ince transmission of rights to one’s heirs is the rule and not the exception [15] and since nothing in

article 519 C.C.P . suggests that the legislator intended to preclude such transmission, the judge’s narrow reading of

article 519 C.C.P . must be rejected. [ 19 ] Few cases have dealt with

article 519 C.C.P . [16] and this Court has never considered the question of whether it is available to anyone other than a spouse. However, among the principles that emerges from the case law is that

article 519 C.C.P . and its predecessor,

article 734.0.1 C.C.P ., should be given a large and liberal

interpretation. In L.O.-M. c. É.L. , Justice Bich, writing for the Court, explains this approach: [ 52 ]

L'article 734.0.1 C.p.c. a pour but la protection des conjoints et, plus précisément, la protection du conjoint vulnérable, dans un souci d'équité. En conséquence, je crois que le contexte particulier de cette disposition milite en faveur d'une interprétation libérale ou, en tout cas, d'une interprétation moins restrictive que ce n'est en général le cas en matière de saisie avant jugement. [17] [ 20 ] The judge adopts instead a restrictive

interpretation, which we do not share. [ 21 ] Second, the judge’s conclusion that Roslyn’s action was prescribed was based on an analysis that went far beyond what he was required to do for the purposes of an application to quash a seizure.

The judge writes: WHEREAS the two mises en cause contend that the “introductory demand” of the Plaintiff is of time limit because the plaintiff knew all the facts since 2013, having taken procedures based on the same fact back to 2013; WHEREAS the three years limitation must apply here because, as judgment of Dominque Poulin J. decided, the right of the Plaintiff is personal; WHEREAS the so called lack of amount of action by the liquidators of the estate, being the two mises en cause, doesn’t not in the opinion of this judge suspend the delay of limitation as suggested by the Plaintiff, the mises en causes having good reason to wait for the judgment on Plaintiff’s suit for recognition of the will by which she (the Plaintiff) inherits;

[ 22 ] For the purposes of the application to quash the seizure, all the judge needed to find was a logical connection between the facts alleged by Roslyn and the conclusions she sought in her action. Such a connection clearly exists. Roslyn’s recourse seeks to force Maureen and Nicole to liquidate Albert’s share in the family patrimony. [18] In support of the seizure, she alleges that she has a claim against Albert’s estate, that Albert and Bertha were married and that the Residence formed part of their family patrimony.

The judge’s analysis should have stopped there, leaving the issue of prescription for the merits. The judge erred in quashing the seizure on the basis of prescription. [ 23 ] In reaching this conclusion, the Court does not preclude the possibility that a seizure can exceptionally be quashed on the basis of prescription; just that it was an error to do so here.

Deciding whether or not Roslyn’s action is prescribed and whether prescription was interrupted by the action instituted in 2013 in regards to Albert’s wills or suspended by Maureen and Nicole’s inaction as liquidators, involve questions of fact that are clearly issues for the merits. [ 24 ] As far as the Residence is concerned, the judge concludes that Maureen and Nicole are precluded from arguing that it no longer forms part of the family patrimony because they made an admission to the contrary in their proceedings.

They disagree with the judge on this point and argue that he should instead have determined that it ceased to part of the family patrimony when Albert moved in with Roslyn and that this was an additional reason for quashing the seizure. [ 25 ] The Court does not agree. As was indicated above, the allegations attested to by Roslyn were sufficient to justify the seizure of the Residence.

Determining whether or not it was part of the family patrimony when the seizure was brought is an issue for the merits. [ 26 ] Finally, Maureen and Nicole’s contention that the Residence was left to them in equal shares as a legacy is based on an

interpretation of certain provisions of the Will which, in the Court’s view, are ambiguous. Consequently, this question is also one for the merits. [ 27 ] As a result of the Court’s conclusion regarding the application of

article 519 C.C.P. , it is not necessary to examine the possible application of

article 518 C.C.P. FOR THESE REASONS, THE COURT: [ 28 ] ALLOWS the appeal; [ 29 ] SETS ASIDE the judgment in first instance; [ 30 ] DISMISSES the Application to quash a seizure before judgment of May 25, 2021; [ 31 ] WITH LEGAL COSTS against Respondent in first instance and appeal. MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. PETER KALICHMAN, J.A. Mtre Henry Altschuler Mtre Harvey Lazare LAZARE & ALTSCHULER For the Appellant Mtre Robert Pancer Mtre Angeliki Papadimitropoulos PHILLIPS FRIEDMAN KOTLER For the Respondent and the Impleaded parties Nicole Magder Douek and Maureen Rosen Douek Date of hearing: June 1, 2022