2021 QCCA 913, 2021 QCCA 913

Droit de la famille — 21977 2021 QCCA 913 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029501-210 ( 500-12-332049-166 ) MINUTES OF HEARING DATE: June 2, 2021 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPLICANT S. R. ABSENT AND UNREPRESENTED RESPONDENT COUNSEL C. M. Mtre MURIEL LIBRATI ( Teitelbaum Librati ) Absent DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on April 21, 2021 , by the Honourable Thomas M. Davis of the Superior Court , District of Montreal (Articles 31 and 32 C.C.P. ).

Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING 9:33 Commencement of the hearing. Continuation of the hearing held on May 31, 2021. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 3. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] Mr. S. R. is seeking leave to appeal the Superior Court judgment that dismissed his Re-amended Motion to dismiss and revocation of judgment and declared it abusive. [ 2 ] While his application for leave to appeal raises points of contention with respect to various aspects of the judgment, Mr. S. R. confirmed at the time of the hearing that he is only seeking leave with respect to the conclusion that declared his application abusive. [ 3 ] In first instance, Mr. S.

R. sought the dismissal of the divorce proceedings based on the improper service of the divorce application by the Respondent some four years prior. He also sought the revocation of the judgment rendered on August 23, 2016, (the “Dugré Judgment”) which had authorized the special service of the divorce application. [ 4 ] The application to revoke the Dugré Judgment was dismissed, given that it was filed after the time limit (more than 6 months after the Applicant was made aware of the judgment) and given that, in the absence of any allegations of an impossibility to act on the part of Mr. S. R., the conditions of

article 84 C.C.P. were not met. [ 5 ] The first judge also addressed the merits of the other allegations of Mr. S. R.’s application. He concluded that Mr. S.

R., although he may not have been aware of the Dugré Judgment which authorized special service by email, was not prejudiced by the alleged “improper service” of these proceedings, as he was aware at all times of these proceedings which he contested and on which he had the full opportunity to be heard. [ 6 ] The first judge noted that the essential element of his application had already been considered and decided upon by the Court of Appeal in a judgment rendered on December 11, 2019, in the context of his appeal of another judgment which had authorized special service by email. [1] He cited extracts of the judgment where this Court explained that it refused to grant the annulment of the orders previously rendered by the Superior Court, regardless of the improper service of the proceedings, given that Mr.

S. R. had not suffered any prejudice as a result, having contested and been heard on the provisional measures. [ 7 ] The first judge also pointed out that the Court of Appeal had considered and set aside the argument raised with respect to the Swiss courts’ refusal to recognize foreign decisions where the introductory motion has not been served correctly, leaving the issue to be decided by the Swiss courts. [ 8 ] Moreover, the first judge also concluded that Mr. S.

R.’s claim that his divorce filing in Switzerland would have been filed first, had the Quebec proceedings been served properly under the Hague Convention rules, was hypothetical. [ 9 ] The first judge’s decision to declare Mr. S. R.’s application abusive was based on the fact that his application raised issues that had already been considered and decided by the Court of Appeal: It had held that Mr. S. R. could not argue irregular service at the merits stage while having had knowledge of the proceedings.

His application ignored the Court of Appeal’s findings and the fact that the revocation of the Dugré Judgment could not give rise to the dismissal of the divorce proceedings. The first judge wrote: [48] The Court concludes that the husband’s current application is abusive. He is essentially asking to throw out over four years of court proceedings based on his affirmation that he only recently became aware of Justice Dugré’s judgment.

This is disingenuous at best since, as the Court has said, the husband been aware that he could refuse e-mail service from the outset and has raised this objection for some proceedings and not for others. [49] In addition, in asking for the dismissal of the divorce proceedings has ignored the Court of Appeal’s findings, particularly those at paragraph 52, and that the revocation of Justice Dugré’s judgment would not give rise to the dismissal of the proceedings. [50] Finally, a reading of

article 347 C.C.P. should have led him to conclude that his application to revoke the judgment was outside the mandatory time limit. [51] This conduct of the husband meets the threshold of temerity. He should have realized that he was putting forward an application to dismiss that: “ une personne raisonnable et prudente, placée dans les circonstances connues par la

partie au moment où elle dépose la procédure ou l’argumente, conclurait à l’inexistence d'un fondement pour cette procédure .” [ 10 ] In order to obtain leave to appeal, Mr. S. R. must demonstrate that his application meets the conditions of paragraph 2(3) and 3 of

article 30 C.C.P ., in that the matter at issue is one that should be submitted to the Court because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions. He fails to make that demonstration. In fact, he fails to show any reviewable error on the part of the trial judge, in the particular context of the matter.

[ 11 ] Such an appeal would not, in my view, serve the ends of justice. This is the parties’ fifth trip to the Court of Appeal and the situation has not evolved much since my colleague Hamilton J.A. rendered judgment on November 13, 2020, and denied the applicant leave to appeal from another judgment rendered in the same file by the same case management judge (and for which the applicant has since been denied leave to appeal to the Supreme Court). His comments still bear relevance six months later: [17] […] 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 .

THEREFORE, THE UNDERSIGNED: [ 12 ] DISMISSES the Application for leave to appeal from a judgment rendered in the course of a proceeding; [ 13 ] WITHOUT legal costs, given the nature of the proceedings. GENEVIÈVE MARCOTTE, J.A.