2020 QCCA 1526, 2020 QCCA 1526

Droit de la famille — 201759 2020 QCCA 1526 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029179-207 , 500-09-029183-209 ( 500-12-332049-166 ) MINUTES OF HEARING DATE: November 13, 2020 THE HONOURABLE STEPHEN W. HAMILTON, J.A. 500-09-029179-207 APPLICANT S. R. Unrepresented Absent RESPONDENT COUNSEL C. M. Mtre AMANDA G. EMANUELE Mtre MURIEL LIBRATI ( Teitelbaum Librati ) Absent IMPLEADED PARTY COUNSEL Revenu Québec Mtre Danika Graziani Mtre JOSÉE PROVOST ( Revenu Québec ) Absent 500-09-029183-209 APPLICANT

S. R. Unrepresented Absent RESPONDENT COUNSEL C. M. Mtre AMANDA G. EMANUELE Mtre MURIEL LIBRATI ( Teitelbaum Librati ) Asbent DESCRIPTION: Application for leave to appeal from two judgments rendered in the course of the proceeding on October 9, 2020 by the Honourable Thomas M. Davis of the Superior Court , District of Montréal (Art. 31-32 C.C.P. ) . Clerk at the hearing : Mélahelle Sicotte Courtroom: RC-18 HEARING 9:30 Commencement of the hearing. Continuation of the hearing held on November 10, 2020 The parties were excused from appearing in Court. BY THE JUDGE : Judgement – see page 4.

Conclusion of the hearing. Mélahelle Sicotte, Clerk at the hearing JUDGMENT [ 1 ] The Applicant presents two motions for leave to appeal, relating to two judgments of the Superior Court, District of Montreal, rendered by the case management judge, the Honorable Thomas M. Davis, on October 9, 2020.

The first judgment dismisses the Applicant’s application to obtain a mainlevée of what the Applicant describes as the seizure of his Canadian passport, and the second dismisses his application to quash the seizure before judgment of the proceeds of an insurance policy and renders a case management order with respect to the notification of proceedings. *** [ 2 ] The first issue is the suspension of the Applicant’s Canadian passport. [ 3 ] It was suspended at the request of the Agence du revenu e du Québec on the basis that the Applicant was in persistent arrears in paying child support.

In accordance with the Family Orders and Agreements Enforcement Assistance Act , [1] the Agence advised the Applicant that he was in persistent arrears and that it intended to request the suspension of his passport, unless he entered into an acceptable payment plan or satisfied the Agence that he was unable to pay the arrears and that it would not be reasonable to request the suspension of his passport. The Applicant responded to the notice but the Agence was not satisfied with his response and proceeded to request the suspension of his passport.

[ 4 ] The Applicant contested the suspension of his passport before the Superior Court and lost. He now seeks leave to appeal to the Court, arguing that it is urgent for him to have his Canadian passport. While that may well be true, and other than the issue of notification to which I will return below, I see no basis for the Court to intervene. The Applicant has not paid any child support since 2016. He argues that there was no child support judgment in force in Quebec from 2016 to 2019, but recognizes that there was a Swiss judgment.

He contests the amount of arrears claimed by the Respondent, but acknowledges owing in excess of $30,000. He did not propose any payment plan.

There is no evidence that he is unable to pay the arrears. *** [ 5 ] The second issue is the seizure of the insurance proceeds payable to the Applicant in the amount of $250,000. [ 6 ] The Respondent seized those proceeds pursuant to Articles 518 and 519 C.C.P. in order to guarantee payment of the arrears in child support and the Applicant’s obligations with respect to the partition of the family patrimony and the dissolution of the partnership of acquests. [ 7 ] The Applicant’s motion to quash the seizure was dismissed and he seeks leave to appeal from that judgment.

I see no basis for the Court to intervene with the judge’s conclusion that the allegations in the Respondent’s solemn declaration in support of the seizure were clearly sufficient. *** [ 8 ] The final issue is notification. [ 9 ] The Applicant lives in Switzerland and the Respondent has been notifying him by email since the institution of the proceedings in 2016. [ 10 ] The Applicant formally objected to this form of notification on April 11, 2019 and has consistently insisted since then on notification in accordance with the Hague Convention. [2] On December 11, 2019, the Court issued a judgment confirming that

Article 494 C.C.P. requires that all service and notifications in the present matter be in accordance with the Hague Convention. [3] [ 11 ] The Applicant raised as part of his contestation of the suspension of his passport and of the seizure of the insurance proceeds the fact that he had not been notified in accordance with the Hague Convention.

In response, the Respondent presented a motion asking for permission to notify the Applicant by email. [ 12 ] The judge found that the Applicant had the right to insist on the application of the Hague Convention, but that his insistence on it was “capricious” and “unnecessarily delays the proceedings and makes them more expensive for the wife”.

In particular, the judge found that the cost of translating the documents into German was significant and that the Applicant does not even speak the language. [ 13 ] Accordingly, the judge issued the following case management order: [82] ISSUES the following case management order to apply to all occasions where Plaintiff wishes to notify or serve a document or procedure to Defendant: • Plaintiff’s lawyers will advise Defendant by e-mail at [...]@gmail.com of any new procedure or document that they intend to notify or serve; • Within 48 hours of the transmission of any such e-mail, Defendant will advise Plaintiff’s lawyers by e-mail if he requires service under the rules of the Hague Convention; • If so, Plaintiff’s lawyers will obtain the details of the cost of the translation of the document or procedure into German and service of it in Switzerland under the Hague Convention and communicate said cost details to Defendant by e-mail at [...]@gmail.com; • Defendant will have 48 hours from the transmission of the cost details to advise Plaintiff’s lawyers whether he still requires service under the Hague Convention and if so, within this time limit, will be required to pay the cost of same as a provision for costs, in advance of the translation and service, by way of a certified cheque or other agreed upon method of payment to Plaintiff’s lawyers in trust; • If Defendant fails to pay the said provision for costs within this time limit, he will be deemed to have consented to notification by e-mail at [...]@gmail.com; • Any 48 hour period will be suspended between 5 pm on Friday afternoon and 9 am on Monday morning (Montreal time) and between 5 pm on the day preceding a statutory holiday and 9 am on the day following a statutory holiday (Montreal time); • Defendant shall advise the Court and Plaintiff’s lawyers of any change in his e-mail address as soon as it becomes effective. [ 14 ] The Applicant seeks leave to appeal from that order on the basis that it is contrary to

Article 494 C.C.P. and the Court’s 2019 judgment. [ 15 ] The judge has a broad discretion with respect to case management orders. His judgment on these matters can only be reviewed by the Court if it is unreasonable (Article 32 C.C.P. ). Further, he has a broad discretion on provisions for costs. [ 16 ] Moreover, the Hague Convention allows notification by email when the party receiving notification consents. The order is in technical compliance with the Hague Convention in that allows notification by email only if the Applicant consents. However, the order compels the Applicant to consent by ordering him to pay the cost of translation as a provision for costs if he requires service in

accordance with the Hague Convention and it deems his consent if he fails to pay the provision for costs within a short delay. Those modalities of the order appear to go against the spirit of

Article 494 C.C.P. and the Hague Convention and would normally not be appropriate. I have particular doubts with respect to the deemed consent. [ 17 ] However, the present order is issued in a particular context. Specifically, the parties have been involved in acrimonious divorce proceedings in Quebec and in Switzerland since 2015. This is their fourth trip to the Court of Appeal. No trial date is scheduled and according to the Applicant, the case is nowhere near ready to be set down for trial.

The judge concluded that the Applicant was insisting on compliance with the Hague Convention to further delay proceedings and make them more expensive for the Respondent. This situation is not acceptable and the case management order appears to be reasonable in all of the circumstances. [ 18 ] For these reasons, the applications for leave to appeal are dismissed. *** [ 19 ] All of this being said, I would note the following. [ 20 ] First, I understand the difficulties for the Applicant that are created by the seizure of the insurance proceeds and the suspension of his Canadian passport.

At the same time, I understand the difficulties for the Respondent created by the Applicant’s ongoing refusal to pay child support. I would hope that the parties could agree on a partial mainlevée of the seizure on the insurance proceeds to enable the Applicant to pay the arrears of $34,931.66 that are due according to the Agence and thereby obtain the release of his passport. [ 21 ] Further, the Applicant appears to have some legitimate concerns about the short delays under the case management order on notification.

Those delays are intended to keep the proceedings moving efficiently and are not intended to cause the Applicant to lose rights, other than perhaps the right to insist on a translation that he cannot read. I expect the Respondent not to take advantage of the order to try to obtain a default judgment and for the judge to show flexibility if difficulties arise. Finally, I note that the provisions of the case management order should be extended to cover notification by the Applicant on the Respondent, with any necessary changes, if the Applicant makes a motion to that effect.

FOR THESE REASONS, THE UNDERSIGNED: [ 22 ] DISMISSES the motions for leave to appeal; [ 23 ] THE WHOLE , without judicial costs given the nature of the proceedings. STEPHEN W. HAMILTON, J.A.