CAUTION: Prohibition of disclosure or distribution: the Code of Civil Procedure (« C.p.c. “) prohibits the disclosure or dissemination of any information allowing the identification of a party or a child whose interest is at stake in a family law proceeding, except with the authorization of the court (article 16 C.p.c.).
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APPELLANT |
LAWYER |
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S… R… |
Me ROBERT (Allali Brault)
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RESPONDENT |
LAWYER |
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A… T… |
Ms ISABELLE LAROCQUE (Binette Carignan Lawyers) By videoconference
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9 h 29 |
Beginning of the hearing. Identification of the file and lawyers. Preliminary remark of the Court. |
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9 h 30 |
Argumentation de Me Tannous. |
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9 h 43 |
Court’s commentary. Exchanges between the Court and Me Tannous. |
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10 h 07 |
Me Tannous continues his observations. |
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10 h 08 |
Adjournment of hearing. |
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10 h 12 |
Resumption of hearing. The panel wishes to hear Me Larocque’s observations regarding the legal costs. It will not be necessary to hear him on the rest. |
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10 h 13 |
Argument by Me Larocque. |
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10 |
Reply by Me Tannous. |
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10 |
Adjournment of hearing. |
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10 |
Resumption of hearing. BY THE COURT: Unanimous judgment rendered forthwith – see page 3. |
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10 h 22 |
End of hearing. |
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Anne Dumont, Court Clerk |
CAUTION: Prohibition of disclosure or distribution: the Code of Civil Procedure (« C.p.c. “) prohibits the disclosure or dissemination of any information allowing the identification of a party or a child whose interest is at stake in a family law proceeding, except with the authorization of the court (article 16 C.p.c.).
[1]
This is an appeal from a judgment rendered on April 29, 2022 by the Superior Court, district of Joliette (the Honorable Serge Gaudet). The judge decides that the parties, de facto spouses, had entered into a verbal agreement at the beginning of their cohabitation of its own kind that the respondent, in return for an undertaking to pay $27,200, would have acquired 40% of the equity in the house of which the appellant was the sole owner listed in the Land Register. The judge noted this undertaking, which was confirmed by the appellant’s testimony (para. 22 of the judgment) and, Among other, by the fact that, each year, the respondent paid 40% of the mortgage payments and property taxes. In addition, in March 2020, shortly following the parties separated, the Appellant undertook to buy out the Respondent’s share in the building, thus confirming the agreement that still existed between them.
[2]
At the time of the separation, a balance of $12,446.27 was still owed by the respondent to the appellant. The market value of the house at the time of the parties’ separation being, according to the evidence, $312,500 or a net worth of $185,360.56, once the mortgage debt had been deducted, the judge sentenced the appellant to pay the respondent $74,144.24, representing 40% of the net equity, less the balance owing of $12,446.27 (for a judgment of $61,697.97).
[3]
The appellant’s main argument that the judge rendered judgment ultra petite does not stand up to analysis. The judge clearly explained, in footnote 18, that the respondent (who was not represented by counsel at trial) claimed the “profits” of a hypothetical sale of the house and that this was a way, in the context, to ask for his share of net worth. Thus, the judge corrects the impropriety in the conclusion of the procedural act to give it its true qualification with regard to the allegations of the act, as allowed by article 10 al. 2 C.p.c. Anyway, the concept ofultra petite
applies flexibly in family law.
[4]
That the judge did not identify the agreement as a nominate contract under the C.c.Q. is not an error in law. Either way, a contract of its own kind binds the parties. The appellant’s proposal to that effect must therefore also be rejected.
[5]
Contrary to what the appellant argues, the respondent’s failure to pay the balance of $12,446.27 does not constitute a fundamental obstacle to the execution of the agreement entered into between the parties providing for the acquisition by the ‘respondent for 40% of the equity in the house. Indeed, no payment period was agreed between them and, as the evidence shows, the actions and words of the parties establish that the respondent had been entitled to 40% of the equity in the house since 2012.
[6]
Also, the judge did not err in exercising his discretion not to award interest to the appellant on the unpaid balance of $12,446.27. As mentioned, no term of payment has been agreed between the parties. Moreover, according to the evidence presented, the respondent gave the appellant checks representing the agreed sum on two occasions, but the latter simply did not cash them.
[7]
That being said, the appellant fails to establish that the judge committed errors of law or errors of mixed law and fact that led to his ordering him to pay an amount equivalent to 40% of the equity in the house. .
[8]
The appellant did not reproduce any of the evidence given at trial. It is therefore difficult for him to challenge the judge’s findings of fact.
[9]
The appellant also claims that the respondent committed an abuse of process given the multiple factual allegations in its amended originating application, which were initially drafted with a view to obtaining sole custody of their child. According to the appellant, she withdrew this request on the first day of the trial and thus consented to the continuation of the sharing of parental time. He therefore claimed the fees charged by his lawyer to prepare the contestation of this request.
[10] The judge rejected this claim, following making the following remarks:
[119] However, no more than Mrs.
[l’intimée]Sir [l’appelant] Didn’t he modify his legal claim in order to now provide that he accepted the principle of shared custody. In short, to stick to the only requests that were in the Court’s file, each of the parties requested sole custody of the child, whereas in fact each accepted the principle of shared custody which had been in place since the June 11, 2020 and which was recommended by the DPJ.
[120] Moreover, Mr. did not demonstrate at trial that the allegations relating to the custody of the child were reckless or otherwise wrongful. Admittedly, the request was unnecessarily long, but that does not make it abusive and the demonstration that there was abuse was not made.
[11] He added that the Respondent had verbally informed the Appellant’s lawyer before the hearing that she was accepting shared parenting time (shared custody) and that the fees paid by the Appellant ($75,000) “seem completely out of in proportion to the real issues raised by it. »
[12] The appellant fails to convince the Court that the judge made a manifest and decisive error in this respect and this plea cannot be accepted either.
[13] Accordingly, the appeal must be dismissed. Given the essentially family nature of the conflict, the legal costs will not be awarded on appeal, just as the judge did not award them in the first instance.
FOR THESE REASONS, THE COURT :
[14] REJECTS the appeal, without legal costs.
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GENEVIEVE MARCOTTE, JCA |
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JOCELYN F. RANCOURT, J.C.A. |
