2016 QCCA 377, 2016 QCCA 377

Droit de la famille — 16437 2016 QCCA 377 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025282-153 (500-12-314506-126) MINUTES OF THE HEARING DATE: February 18, 2016 CORAM: THE HONOURABLE nicole duval hesler , C.J.Q. jean-françois émond , J.A. marie-josée hogue , J.A. APPELLANT ATTORNEY M. M. Mtre BRIGITTE KARIB (Aide Juridique de Montréal) RESPONDENT ATTORNEY R. D. personaly On appeal from a judgment rendered on April 15, 2015 by the Honourable Justice Guylène Beaugé of the Superior Court, District of Montreal.

DESCRIPTION : Divorce - apparel- moral and punitive damages actions Clerk: Shirley Thomas Courtroom: Pierre-Basile-Mignault HEARING 10: 16 Commencement of the hearing. Identification of parties. 10: 16 Representations by Mtre Karib. 11: 13 Recess. 11: 39 Resumption of the hearing. 11: 39 Mtre Karib continues his argument. 11: 46 Recess. 11: 58 Resumption of the hearing. The Court will not hear the representations of the respondent because it is able to render judgment. 11: 59 By the Court: Judgment – see page 3. 12: 00 Conclusion of the hearing.

SHIRLEY THOMAS Clerk BY THE COURT JUDGMENT [ 1 ] The parties were married in 2003. The appellant filed for divorce in 2012. No children were born of this marriage, which was not the first for either party. [ 2 ] The appellant raises as first argument that the reasons given by the judge below are insufficient. [ 3 ] It is true that the trial judge's reasons are relatively brief on some issues.

Although it might have been preferable for her to explain her reasons more fully, it remains that a meaningful review is possible on appeal and that her duty to provide reasons has been met. [1] [ 4 ] As his second ground of appeal, the appellant seeks the equal partition of the family patrimony. [ 5 ] The trial judge acknowledged that the net value of the family patrimony is normally shared equally between the spouses after the dissolution of a marriage. She decided, however, that the exception provided in

article 422 CCQ allowing unequal petition of the patrimony should apply in this case because: the preponderant evidence administered shows that [the appellant] not only did not contribute to the establishment of the family patrimony but categorically refused to do so…. Indeed, he would tell [the respondent] that since she was the owner of the residence, he did not want to contribute…. He would even refuse to pay for the groceries arguing that [the respondent’s] children were living in the residence. [2] [ 6 ] The trial judge reviewed the principles applicable to the partition of the family patrimony, explicitly noting that any grounds

justifying derogation from the general rules must relate to the economic union of the parties. In her opinion, the evidence demonstrated that the appellant contributed only minimally to the family patrimony, refusing at times to pay for expenses because the respondent was the owner of their home and because her children lived there intermittently.

For the trial judge, this conscious refusal to contribute to the family patrimony was not the result of different income or wealth levels, as asserted by the appellant. [ 7 ] The appellant essentially disagrees with the trial judge's conclusion and notes that her judgment does not make reference to the cheques showing contributions by the appellant to the respondent and testimony about his contributions to the home.

However, this Court has established that a trial judge's decision does not need to be exhaustive in order to satisfy the obligation that it be sufficiently motivated: "L’ obligation de motiver n’impose pas celle de démontrer explicitement que le décideur a tenu compte de tous les éléments de la preuve." [3] [ 8 ] The trial judge was aware of the legal test she was applying.

In addition, there was evidence to support the conclusion that the appellant did not contribute to the family patrimony to the best of his abilities, including not only testimony by the respondent but also bank statements that suggested the appellant had the financial means to contribute more than he did. [ 9 ] The trial judge mentioned two other factors that contributed to her decision to apply

article 422 CCQ: the failure of the parties' restaurant caused a financial loss "mostly to [the respondent]" [4] and the appellant was earning income from his construction business. [ 10 ] In addition, the trial judge found that the Florida property would have been excluded from the family patrimony in any case. She concluded that the purchase of the property was intended to be, partially the respondent's investment (one-third) and partially a gift to her children (one-third to each of her two children).

She noted that the appellant had refused to invest in this property with the respondent, and that the parties did not spend vacations there.

She found that the appellant had visited "only once or twice". [5] [ 11 ] Having dealt with the issue of the partition of the family patrimony, and before addressing the parties' other requests, the trial judge noted the following: [30] CONSIDERING the excessiveness on both parts in these proceedings, each party having unnecessarily complicated the file; [31] CONSIDERING that the Tribunal finds the parties' respective demands for damages, compensatory allowance, compensatory payment, spousal support and provision for costs so excessive and ill-founded that they do not warrant to be entertained lengthily; [ 12 ] Indeed, this passage does explain the brevity of the reasons on the appellant's secondary demands in first instance and constitutes sufficient explanation for the purposes of this appeal. [ 13 ] The trial judge relied on her finding that the appellant did not contribute as required to the marriage to dismiss his request for a $50,000 compensatory allowance.

She rejected his assertion that "he would have paid for almost all the house expenses with the consequence that [the respondent] would have unjustly enriched herself". [ 14 ] Since this Court accepts the trial judge's conclusion regarding the appellant's lack of contribution to the family patrimony, his appeal regarding his claim for a compensatory allowance cannot succeed.

A spouse who has not contributed as required to the marriage cannot be said to have unjustifiably enriched the patrimony of the other spouse. [ 15 ] Noting that the respondent was self-represented for a time, the trial judge denied the motion to declare the respondent's actions an abuse of procedure.

For instance, she found that the appellant had not established that the respondent was in bad faith, that the respondent had sincerely believed more subpoenas were necessary to prepare her file for trial, and that she intermittently lacked representation by a lawyer. [ 16 ] In addition, the trial judge found that the respondent had acted in good faith when she reported the purported robbery and attempted murder to the police. The trial judge therefore found no fault on the part of the respondent that would justify the appellant's request for $30,000 in punitive damages for defamation.

Rather, the trial judge characterized the respondent's actions as "disturbing erratic behaviour [of a person] who sincerely believed and still believes to have been a victim for an attempted murder on two occasions". [6] [ 17 ] Although a more complete explanation form the trial judge might have been helpful, it is clear that she believed that the respondent's actions were more in line with a good faith and earnest effort to enforce her rights than conduct that amounted to an abuse of rights, a reasonable conclusion if one is mindful of the fact that this is a family dispute. [ 18 ] The trial judge also denied the appellant's request for a provision for costs, as he would have been eligible for legal aid and he had not demonstrated special circumstances to justify his decision to hire a private lawyer, a choice the consequences of which he now had to assume. [ 19 ] We note for the sake of completeness that the trial judge also rejected the respondent's request for spousal support. [ 20 ] In short, the appellant has failed to establish an error of law of a palpable and overriding error of fact that would warrant intervention by this Court.

He is in effect asking the court to re-assess the whole of the evidence. That is not the role of a Court of Appeal. FOR THESE REASONS, THE COURT: [ 21 ] DISMISSES the appeal.

NICOLE DUVAL HESLER, C.J.Q. JEAN-FRANÇOIS ÉMOND, J.A. MARIE-JOSÉE HOGUE, J.A.