2023 QCCA 1376, 2023 QCCA 1376

Droit de la famille — 231880 2023 QCCA 1376 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030539-233 ( 500-12-351968-213 ) MINUTES OF HEARING WARNING: Disclosure and circulation prohibited: The Code of Civil Procedure ( “C.C.P.” ) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (art. 16 C.C.P. ). DATE: November 3, 2023 CORAM: THE HONOURABLE JULIE DUTIL, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A.

APPELLANT COUNSEL g. l. Mtre joan benson RESPONDENT COUNSEL m. l . Mtre XI QUAN On appeal from a judgment rendered on April 17 , 2023, by the Honourable Florence Lucas of the Superior Court , District of Montréal . NATURE OF THE APPEAL: Divorce – Approval of a consent. Clerk at the hearing : Vitélina Saint-Phard Courtroom: Antonio-Lamer HEARING 9: Continuation of the hearing held on Thursday November 2 nd , 2023. The parties were excused from appearing in Court. Conclusion of the hearing.

Vitélina Saint-Phard, Clerk at the hearing JUDGMENT [ 1 ] The appellant appeals against a judgment of the Superior Court, District of Montreal (the Honourable Florence Lucas), dated April 17, 2023, granting a divorce between the parties and homologating the consent to accessory measures (“ Agreement ”) signed by the parties on July 19, 2022. [ 2 ] The appellant argues that the judge did not fulfil her obligation under

article 415 C.C.P. and failed to properly apply the two- stage analysis of Miglin v. Miglin . [1] The appellant contends that his consent to the Agreement was not obtained freely and that the substance of the Agreement is unfair towards him. [ 3 ] In support of his contentions, the appellant submitted only part of the stenographic notes. Therefore, the Court has neither the testimony of the respondent nor of the parties’ daughter, nor the exhibits filed at trial. Yet, the judge relied on this evidence to support her conclusions regarding the appellant’s consent to the Agreement.

Without these pieces of evidence having been reproduced in the appeal record, the Court cannot intervene on the issue of the appellant's consent. [2] [ 4 ] That being said, a careful reading of the judgment reveals that the judge did not have the relevant evidence to decide on the fairness of the content of the Agreement, namely the financial statements of the depanneur. [3] The parties also informed the Court at the hearing that the judge did not have knowledge of the net value of the family residence. [ 5 ] Without these documents, it was impossible for the judge to rule on the fairness of the Agreement.

Given the particular circumstances of this case, the judge should have given the parties an opportunity to complete their evidence before deciding the question of homologation.

FOR THESE REASONS, THE COURT: [ 6 ] ALLOWS the appeal in part; [ 7 ] OVERTURNS in part the judgment rendered on April 17, 2023, by the Superior Court, District of Montreal (the Honourable Florence Lucas), for the sole purpose of striking the conclusion at paragraph [40] of the judgment; [ 8 ] RETURNS the matter to the Superior Court for a new hearing on the homologation of the Agreement solely in relation to its fairness and for the purpose of allowing the parties to produce evidence on this matter; [ 9 ] WITHOUT COSTS. JULIE DUTIL, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A.