2013 QCCQ 9264, 2013 QCCQ 9264

Wanzer c. Smith 2013 QCCQ 9264 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Civil Division No. 455-32-003686-119 DATE: June 19, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ ELWIN WANZER Plaintiff v.

FRED SMITH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff is claiming $2600 from the defendant in reimbursement of a sum he says he advanced to persons domiciled in the Philippines in order to obtain one or more marriage annulments. [ 2 ] The Court understands that the plaintiff, now 84 years old, was married three or four times in the past.

First of all, he had children with his first wife, who abandoned them and left him alone to raise the children. [ 3 ] It appears that many years later he entered into a marriage in the Philippines. That spouse died and it does not seem that she ever came to Canada, where the plaintiff Wanzer has always been domiciled. The plaintiff married again in 2002, and once more in 2009. Those spouses, also from the Philippines, were respectively 20 and 19 years old at the time.

It is far from clear whether he lived with any of them. [ 4 ] In the case of the last spouse, it seems that the plaintiff went to the Philippines and there, during the honeymoon, caught his new spouse in a relationship with another woman.

That was the end of their "couple". [ 5 ] Be that as it may, the Court notes that, after that unfortunate event, the defendant and his spouse, who are acquaintances of the plaintiff, informed him that the spouse's niece, also from the Philippines, wanted to get married and wished to marry the plaintiff Wanzer. [ 6 ] An exchange of correspondence followed, during which they mutually confirmed their desire to be united by the bonds of marriage. However, before reaching that step, it was revealed that Elwin Wanzer was already married.

That made a new marriage impossible. [ 7 ] Proceedings had to be initiated in the Philippines to obtain the annulment of the previous marriages. Not surprisingly, those proceedings were costly, and the plaintiff Wanzer undertook to transfer funds to either the family of his future spouse or possibly the local attorney, mandated to obtain the annulment of previous marriage(

s) that had not been annulled. [ 8 ] It seems that, at a certain point, either because the proceedings for marriage annulment turned out to be too complex or the result was not probative, the likelihood of marrying the defendant's niece was reduced. The plaintiff then considered having the niece come to Canada on a work permit.

[ 9 ] In any event, it appears that the "relationship" between the plaintiff and the defendant Smith's niece "cooled off", and the marriage plans were abandoned. [ 10 ] In that situation, the plaintiff decided to claim reimbursement of the sums already transferred to the Philippines, namely $3800; however, he agreed to deduct the sum already spent for the attorney, in addition to other expenses that had been agreed upon.

The balance claimed is $2600. [ 11 ] The plaintiff is claiming those sums from the defendant Smith, whose spouse is from the Philippines, because he believes that Smith is responsible for his problems, as he encouraged him in his marriage plans and possibly also promised to repay him. [ 12 ] Unable to appear in Court, the defendant gave his spouse the mandate to represent him. Her testimony is clear: she never promised the plaintiff that he would be reimbursed, her husband never did anything of the sort, and the plaintiff is of full age, so he should assume his responsibilities.

If he took steps to remarry, he knew very well what he was doing and is responsible for his actions. ANALYSIS AND DECISION [ 13 ] The Court has very serious reservations concerning the legality or legitimacy of the plaintiff's many "marriage" proposals to women from the Philippines. The desire to remarry before annulling the previous marriages or obtaining a divorce leaves the Court wondering. [ 14 ] Notwithstanding the Court's opinion on that question, what must be determined is relatively simple: does the defendant owe the plaintiff $2600? [ 15 ] It is up to the plaintiff Wanzer to prove that is so.

It is first of all clear that no money passed through the hands of the defendant or his spouse. It is also clear that they had nothing to do with who received the money: it was exclusively intended for an attorney or the plaintiff's "fiancée". [ 16 ] The only possibility, however remote, which is alleged, is that the defendant accepted to be personally responsible for the reimbursement. If so, he would have stood surety for the principal debtor of the obligation to reimburse, if one existed. [ 17 ] First of all, the Civil Code of Québec provides that suretyship is not presumed.

It must be express (article 2335 C.C.Q.). Nothing of the sort occurred here. In addition, the Civil Code of Québec also states the following: 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500.

However, failing proof in writing and regardless of the value in dispute, proof may be made by testimony of any juridical act where there is a commencement of proof; proof may also be made by testimony, against a person, of a juridical act carried out by him in the ordinary course of business of an enterprise. 1991, c. 64, a. 2862. [ 18 ] Once again, nothing like that is seen here. There is no written document by Fred Smith, or commencement of proof in that regard. There is no admission either. [ 19 ] Consequently, there is no legal relationship between the parties.

What is more, with respect, the case does not show that there is

a valid debt against anyone. THEREFORE, THE COURT: [ 20 ] DISMISSES the plaintiff's action. [ 21 ] THE WHOLE WITH COSTS. ______________________________ Serge Champoux J.C.Q. Date of hearing: May 13, 2013