2014 QCCA 237, 2014 QCCA 237

Droit de la famille — 14208 2014 QCCA 237 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023766-132 (500-12-295573-087) MINUTES OF THE HEARING DATE: January 30, 2014 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. JACQUES J. LEVESQUE, J.A. APPELLANT COUNSEL N. J. In person RESPONDENT COUNSEL M. H. Mtre Charles-Justin Nichols

On appeal from a judgment rendered on June 25, 2013 by t he Honourable Madam Justice Francine Nantel of the Superior Court, District of Montreal. NATURE OF THE APPEAL : Family Law – Evaluation and right to acquire an immovable Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 11h53 : Commencement of the hearing 11h54 : Submissions by Ms N. J. 12h25 : Suspension 12h28 : Resumption 12h28 : Submissions by Mtre Charles-Justin Nichols 12h28 : Reply by Ms J. 12h35 : Suspension 14h05 : Resumption 14h05 : Unanimous judgment rendered by the Honourable Mr Justice Nicholas Kasirer, J.A. – see page 3 Linda Côté Clerk BY THE COURT

JUDGMENT [ 1 ] N. J. appeals a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Francine Nantel, presiding), rendered on June 25, 2013, that, inter alia , declared the value of an immovable co-owned by the parties to be $475,000 as of 2013, ordered the sale of the immovable within 60 days and granted the parties first and second-ranking rights to acquire the property on terms set forth in the judgment. [ 2 ] The immovable once served as a family residence for the parties who are now divorced.

In her written argument in appeal, Ms J. asks that the date for the evaluation of the immovable be fixed at the time of separation of the parties on July 1, 2007, and that the value of the immovable be set at $231,300. [ 3 ] In applying the rules relating to undivided co-ownership to the partition of the former family residence, the judge made no error in fixing the date of evaluation of the immovable in 2013, at the time of judgment, rather than at the date of separation of the parties in 2007. [1] The parties continued to be undivided co-owners of the immovable after separation in 2007 and after the divorce in 2012.

The judge did not err in ordering partition under articles 1030 to 1037 C.C.Q. in 2013 since partition of the immovable did not depend on the designated date for division of the net value of the family patrimony pursuant to

article 417 C.C.Q . [ 4 ] Ms J. has demonstrated no reviewable error in the judge’s decision to fix the value of the residence at $475,000 in 2013. The judge exercised her discretion to do so under authority of

article 1034 C.C.Q. and, in the absence of proof of a palpable and overriding error, the Court cannot disturb this finding by the trial judge. [ 5 ] The trial judge did not misinterpret the divorce judgment [2] rendered on June 6, 2012 by Le Bel J. in ordering that Mr H. have a second-ranking right to purchase the immovable (see paragraphs [174], [175], and [218] of the divorce judgment). Nor has Ms J. convinced us that the judge was mistaken in declining to order the creation of a trust or escrow account to secure future supports payments.

The divorce judgment contemplates that possibility, but the conclusions to Ms J.’s proceedings in first instance did not place the matter before the trial judge. In the circumstance, it would in inappropriate, on the basis of the record as constituted by the parties, for the Court to issue such an order without the benefit of proof on the matter. [ 6 ] In sum, the appellant has raised no ground of appeal that would justify disturbing the trial judgment. FOR THE AFOREMENTIONED REASONS, THE COURT: [ 7 ] DISMISSES the appeal, without costs given the nature of the dispute. FRANÇOIS PELLETIER, J.A.

NICHOLAS KASIRER, J.A. JACQUES J. LEVESQUE, J.A.