2020 QCCA 432, 2020 QCCA 432

Droit de la famille — 20391 2020 QCCA 432 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028144-194 (500-12-329969-160) DATE: March, 12 2020 CORAM: THE HONOURABLE MANON SAVARD, J.A. SIMON RUEL, J.A. GENEVIÈVE COTNAM, J.A. AH. D. APPELLANT – Defendant v. A. R.

RESPONDENT – Plaintiff JUDGMENT [ 1 ] The Appellant is appealing a judgment rendered on January 28, 2019, by the Superior Court, district of Montreal (the Honourable Madam Justice Micheline Perrault), [1] which, among other conclusions: [2] - grants the divorce between the parties; - orders the Appellant to pay child support for their daughter ($1,000 a month plus tuition fees); - orders the Appellant to pay arrears in amount of $120,238.89 as compensation for half of the sums incurred by the Respondent for the benefit of both children; - confirms that the letter of intent signed by the parties on March 19, 2019 is valid and, accordingly, that the Appellant owes the Respondent an amount of $613,500 to the Respondent; - grants the Respondent full ownership of the family residence in City A, in lieu of partial payment of the sum of $198,480 applied toward the Appellant’s debt of $613,500, thus leaving a balance of $415,020 with interest and the legal indemnity since the institution of the divorce proceedings; - grants the Respondent full ownership of the silver cutlery, the paintings, the china and the antique statues that furnish the family residence; - grants the Respondent full ownership of the Range Rover and orders that the Appellant give back the keys to the car; - cancels the seizure before judgement authorized in this file; - declares that the Appellant’s conduct in this matter was abusive; - dismisses the Appellant’s cross application; - the whole with legal costs against the Appellant. [ 2 ] The Appellant is asking the Court to declare the letter of intent null and void, as it was signed under the false pretense that the Respondent had depleted all her savings and assets.

He adds that the Respondent’s claim for child support should be dismissed as she failed to file the mandatory Child Support Determination Form (“Schedule I”). He also argues that the judge erred in law by omitting to proceed with the partition of the value of the paintings used to decorate the family residence and committed a palpable and overriding error by declaring his conduct abusive. THE CONTEXT [ 3 ] The parties married in [Country A] in 1990. They are the parents of two grown children, a son (27 years old) and a daughter (23 years old).

[ 4 ] They both come from wealthy families and are well educated. The Appellant is an engineer while the Respondent worked as a [...] for many years. [ 5 ] In 2009, after their son decided to attend university in City A, they purchased a house on [Street A]. Although they agreed that the purchase price of the house and all related expenses would be supported equally, the Respondent paid the entire down payment of $262,000 and most of the expenses. [ 6 ] In 2010, the spouses applied to become permanent residents of Canada under the Quebec Immigrant Investor Program.

In order to meet the requirements of the program they had to deposit an amount of $180,000, which was mostly paid by remortgaging the [Street A] residence. [ 7 ] At the end of 2014, the Respondent sought the help of the Appellant’s brother-in-law (husband of his sister) as she was concerned by the fact that her savings and assets were rapidly being depleted while the Appellant still owed her a substantial sum of money, including his share of the down payment for the [Street A] residence and the expenses paid for that house between 2009 and 2015. [ 8 ] With the assistance of the brother-in-law who acted as a mediator, of the Appellant’s brother and of the Respondent’s brother, an agreement was reached between the parties while they were still living in [Country A].

Once they moved to Canada, it was put into legal terms by an attorney and became what is referred to as the “letter of intent.” [ 9 ] The parties ended their relationship in December 2015. The Respondent instituted divorce proceedings in February 2016. THE ISSUES IN APPEAL [ 10 ] The appeal raises the following issues: 1- The validity of the letter of intent signed by the parties; 2- The partition of the value of the paintings used to decorate the family residence; 3- The allocation of child support and arrears notwithstanding the fact that the Respondent failed to complete

Schedule I; 4- Whether the Appellant’s conduct was abusive, thus justifying the award of legal costs against him. ANALYSIS 1- The validity of the letter of intent [ 11 ] The Appellant acknowledges having signed the letter of intent and does not repudiate its content. He argues however that his consent was vitiated by the Respondent’s misrepresentation of her financial situation.

He believes that her lavish lifestyle is not compatible with her claim that her financial resources were depleted at the time of the letter of intent’s signature. [ 12 ] The trial judge concluded that the Appellant did not prove that his consent was vitiated by any false representation and therefore declared that the letter of intent was valid. [ 13 ] The Appellant has failed to demonstrate a palpable and overriding error with respect to this conclusion. [ 14 ] The fact that the Respondent was worried that her assets were quickly being depleted was the trigger that lead to discussions between the parties in order to settle the amounts owed by the Appellant who, among other things, had not paid his share of the [Street A] house or the expenses, contrary to his undertaking. [ 15 ] The Appellant met with his brother, the Respondent’s brother-in-law and the Respondent’s brother on numerous occasions in order to negotiate the amount of his debt and discuss the terms of payment.

The evidence is silent as to the information that was exchanged between the parties during these discussions, but the Appellant agreed to the terms of the agreement, which were then transposed into an Excel spreadsheet. [ 16 ] The letter of intent was drafted by an attorney in Quebec based on this agreement. As reflected in the letter intent: 6. The Husband hereby acknowledges a debt owed to the Wife in the amount of ($500,000) five hundred thousand US dollars and agrees to the repayment of the debt; 7.

The Wife acknowledges receipt of a prepayment in the amount of ($50,000) fifty thousand US dollars. […] [ 17 ] The Appellant is inviting the Court to reconsider the trial judge’s assessment of the evidence, which is not the role of this Court. The trial judge carefully examined the testimony of the witnesses, assessed their credibility and explained the reasons why she found the Respondent’s expert to be more reliable. [3] She considered that the Appellant’s involvement in the preparation of his expert’s report weakened his opinion.

That report was based on a classification between what the Appellant considered to be a family expense and a personal expense, which is subjective in nature. The trial judge also noted that there were some inconsistencies and errors in the report. Thus, using her discretion, she chose to consider the report and testimony of the expert retained by the Respondent. We see no reason to intervene in this matter. As our Court recently decided: [25] En ce qui concerne les rapports d’expert et le choix du juge de retenir celui de M.

Doré, la norme d’intervention de cette Cour est très exigeante, surtout quand les deux rapports sont contradictoires :

« [28] [...] Le juge des faits jouit d’une grande discrétion dans l’appréciation des expertises, ce qui est davantage le cas, lorsque confronté à des expertises contradictoires. » [26] Le juge a très bien analysé les deux rapports d’expert et sa conclusion de retenir celui de M. Doré est raisonnable. Contrairement au rapport de M. Doré, le juge trouve que celui de M.

Sanfaçon repose sur une prémisse subjective qui relève de son point de vue et qui a pour conséquence d’augmenter la valeur du terrain sous étude. [4] [ 18 ] On the basis of this evidence, the trial judge decided that the Respondent had not misrepresented her financial situation and thus concluded that the Appellant had failed to demonstrate that his consent had been vitiated at the time of the signature of the letter of intent. The letter was therefore a valid agreement by which the Appellant had acknowledged the amounts he owed to the Respondent.

The payment of the first installment in the amount of US$50,000 also confirms this conclusion. [ 19 ] These conclusions are unassailable. 2- The partition of the value of the paintings used to decorate the family residence [ 20 ] The judge granted the Respondent full ownership of the silver cutlery, the paintings, the Villeroy and Boch china and the antique statues that furnish the family residence. The Appellant argues that she should not have excluded the paintings from the family patrimony under

section 415 C.C.Q ., but rather, that she should have deducted their value from the net value of the family patrimony according to

section 418 C.C.Q . [ 21 ] This issue was not raised in the notice of appeal. The simple fact that the Appellant asks the Court to “share equally the family patrimony according to law” in his conclusions does not allow him to raise a new ground of appeal in his factum, especially when the judge’s conclusions regarding the family patrimony are not addressed in the notice of appeal. [ 22 ] That being said, although the trial judge should not have excluded the paintings owned by the Respondent from the net value of the family patrimony, the Appellant has failed to prove the impact of such an error.

The evidence shows that the Respondent bought some paintings before her father passed away. However, it does not establish that any of those paintings were in the City A family residence. The Respondent also owned an apartment in City B and a beach house in [Country A]. Furthermore, the Appellant recognized that the Respondent had purchased most of the paintings located in the family residence with the inheritance left by her father.

The exact value of those paintings is unknown. [ 23 ] Under these circumstances we see no reason to intervene. 3- Child support and arrears [ 24 ] The Appellant argues, for the first time in appeal, that the trial judge should not have awarded child support for his daughter and should not have ordered him to pay arrears for both children, because the Respondent failed to file

Schedule I, contrary to the requirements of the Regulation respecting the determination of child support payments [5] . [ 25 ] The Code of Civil Procedure provides that

Schedule I must be filed by the parties in order to obtain a ruling on the parental child support obligation [6] and must be attached to the judgement awarding child support. [7] In this case however, although child support was sought, both parties failed to file

Schedule I. This omission was not raised nor discussed by the parties at trial. It was not brought up by the trial judge who, according to

section 447 C.C.P. , should have attached

Schedule I to her judgement. For these reasons, the situation could not be corrected in due time. [ 26 ] The Appellant now raises this procedural shortcoming to argue that the judge should have refused to rule on the matter of child support and arrears in the absence of

Schedule I. [ 27 ] Although the filing of

Schedule I is mandatory to allow the judge to allocate child support, we consider that, in this particular case, this omission had no impact on the trial judge’s findings regarding the allocation of child support and the payment of arrears. It would be contrary to the interest of justice to return the file to the trial judge simply to allow the filing of that schedule. [ 28 ] The trial judge had access to all the information normally detailed in

Schedule I. It was clear that the Respondent had no income and the judge was fully aware of the assets owned by the parties. [ 29 ] Furthermore, although the Appellant never paid child support after the separation in December 2015, he expressed, during his examination on discovery and in his proceedings, his willingness to pay child support in the amount of $1,000 per month for his daughter and to pay his share of the tuition fees for his children. He simply refused to do so because he considered his children to be “disrespectful and unappreciative”.

He never contested the amounts paid by the Respondent for the tuition and the care of his children nor did he raise any issue regarding his financial capacity to pay such amount. [ 30 ] The judge had to assess the needs of two children of full age, which meant that, according to the Regulation respecting the determination of child support payments , [8] she could: 2 […] fix the support payable for a child of full age at a level that departs from the level of support which would be provided under these Rules, if [she] considers it appropriate, taking into account all the circumstances in which the child finds himself, particularly his age, health condition, level of education or nature of his studies, civil status, place of residence, as well as his level of autonomy and, where applicable, the time needed by the child to acquire sufficient autonomy. [9] [ 31 ] After deciding that lack of respect from a child does not justify denying that child’s right to support, [10] the trial judge ordered

the Appellant to uphold his undertaking regarding the financial support he was willing to offer to his children. [ 32 ] Under these circumstances, although

Schedule I should have been filed, the Appellant has failed to show any consequence to this omission. It would therefore be useless and contrary to the interest of the parties and their children to return this matter to the trial judge at this stage. 4- The Appellant’s abusive conduct [ 33 ] The trial judge found that the Appellant’s use of procedure was unreasonable and that his conduct was abusive.

She therefore ordered him to pay legal costs. [ 34 ] This conclusion rests on the following reasons regarding the Appellant’s conduct: (1) at the end of the trial, he withdrew his claim that several properties inherited by the Respondent in [Country A] should be considered part of the family patrimony, (2) he withdrew a claim for $24,000, (3) he attempted to seize properties in [Country A] and [Country B] that belonged to the Respondent’s family members and (4) he spent considerable time at trial discussing the amounts received by the Respondent after she sold the shares owned in a family company, notwithstanding that this transaction took place after the separation. [ 35 ] Although the Court must show great deference towards the finding by a trial judge that the conduct of a party is abusive, [11] the Court concludes that the facts in this case did not justify departing from the general rule in family matters that each party bears its own costs (art. 340, para. 2 C.C.P. ).

The trial judge ordered the Appellant to assume all the legal costs without considering their total amount, notwithstanding that these fees could be quite substantial since both parties filed multiple expert reports. [ 36 ] Contrary to what the trial judge stated, the Respondent did not inherit the apartment in City B in which the parties lived for numerous years, nor the beach house. The apartment was transferred to her by her father, prior to the wedding, pursuant a deed of sale, while the beach house was purchased by the Respondent but paid for by her father.

There was therefore a debate at trial in order to determine whether these transactions could be likened to donations under [Country A] law. Both parties filed expert reports on the issue. [ 37 ] The simple fact that the Appellant withdrew this claim and his claim for $24,000 at the end of the trial, does not warrant the conclusion that they were abusive in his context. [ 38 ] It appears from the evidence that understanding the financial situation of the Respondent was not an easy task.

She owned or inherited property jointly with her brother, transferred the property of a house located in [Country B] to her mother and had more than 20 bank accounts through which substantial sums of money circulated. She also inherited some shares in the family company, which she sold for a substantial amount in 2016. [ 39 ] The trial judge blamed the Appellant for having wasted precious trial time in order to obtain financial information on that company, notwithstanding that the shares had been sold after the separation.

She failed to mention that the debate also concerned amounts that the Respondent had potentially received as dividends or as a member of the board during the marriage. Although he had requested it, the Appellant was denied access to the company’s financial information and had to resort to forcing the communication of these documents. This did require a considerable amount of court time, but the Appellant had the right to assess the Respondents financial situation.

Furthermore, the evidence confirmed that she had received some dividends although the amount ended up being trivial. [ 40 ] The Appellant’s conduct must also be assessed in light of his impression that, because of her lifestyle, the Respondent was not being entirely truthful regarding her financial situation. [ 41 ] The fact that his efforts to establish this fact failed to convince the trial judge was not, in the absence of other elements, sufficient to conclude that the Appellant’s conduct was abusive and did not warrant departing from the general rule that in a family matter the legal costs are borne by each of the parties [12] . [ 42 ] Before us, the Appellant filed a motion to adduce new evidence in order to show that, while the case was under advisement, the Respondent had informed the trial judge that the keys to the car had been stolen and that the Appellant had refused to give her his keys, thus depriving her of the use of the car.

According to the new evidence, this was not accurate, because the car’s locks had been changed by the insurance company and she was in possession of the keys. [ 43 ] This new evidence is only relevant regarding the issue of the Appellant’s abusive conduct. Considering our decision on that matter, the motion to adduce new evidence is no longer necessary.

FOR THESE REASONS , the Court: [ 44 ] GRANTS the appeal, in part, for the sole purpose of replacing paragraphs [123] and [124] as follows: [123] DISMISSES the Plaintiff’s motion to declare the Defendant’s conduct in this matter abusive; [124] THE WHOLE , with costs, given

article 340 C.C.P .; [ 45 ] DECLARES that the motion to adduce new evidence is moot; [ 46 ] THE WHOLE without costs, given

article 340 C.C.P. MANON SAVARD, J.A.

SIMON RUEL, J.A. GENEVIÈVE COTNAM, J.A. Mtre Dominique Ménard m tre Geneviève Claveau LCM AVOCATS For the Appellant Mtre Marie-Hélène Dubé m tre Marie Anne Martin GOLDWATER, DUBÉ For the Respondent Date of hearing: December 12, 2019