R.S. Appellant v. P.R., 2019 SCC 49

SUPREME COURT OF CANADA Citation: R.S. v. P.R., 2019 SCC 49, [2019] 3 S.C.R. 643 Appeal Heard: January 21, 2019 Judgment Rendered: October 25, 2019 Docket: 37861 Between: R.S. Appellant and P.R. Respondent - and - Attorney General of Quebec Intervener Official English Translation: Reasons of Gascon J. and reasons of Brown J. Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. Reasons for Judgment: (paras. 1 to 99) Concurring Reasons: (paras. 100 to 144) Dissenting Reasons: (paras. 145 to 189) Gascon J. (Wagner C.J. and Moldaver, Karakatsanis and Martin JJ. concurring) Abella J. Brown J. r.s. v. p.r. R.S. Appellant v. P.R. Respondent

and Attorney General of Quebec Intervener Indexed as: R.S. v. P.R. 2019 SCC 49 File No.: 37861. 2019: January 21; 2019: October 25.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ. on appeal from the court of appeal for quebec Private international law — Lis pendens — Application for stay of ruling — Condition of susceptibility of recognition of foreign judgment — Burden and degree of proof — Discretion of trial judge — Parallel applications for divorce filed first in Belgium by husband and then in Quebec by wife — Husband applying in Quebec for stay of ruling on wife’s application on basis of international lis pendens — Application dismissed by Superior Court but allowed by Court of Appeal — Whether Court of Appeal erred in attributing burden of proof and in interpreting degree of proof required for condition of susceptibility of recognition of foreign judgment in context of international lis pendens — Whether Court of Appeal was justified in intervening in exercise of trial judge’s discretion — Civil Code of Québec, art. 3137 .

R and S married in Belgium in 2004. They moved to Quebec with their children in 2013. In 2014, the couple’s relationship deteriorated, and S told R that she had decided to terminate their union. Two applications for divorce were then brought, one by R in Belgium on August 12, and the other by S in Quebec on August 15. Under Belgian law, R then revoked, in a letter, all the gifts he had given S during their marriage, which were valued at over $33 million.

R applied to the Superior Court under art. 3137 of the Civil Code of Québec (“ C.C.Q. ”) to stay its ruling on S’s proceedings in Quebec on the basis of international lis pendens . That court — which considered that it would not be possible to recognize in Quebec a decision of a Belgian court based on the provision of Belgium ’s Code civil under which R could revoke the gifts, because that provision is discriminatory — held that S’s divorce proceedings in Quebec should not be stayed.

The Court of Appeal reversed that judgment, finding that it would be premature to conclude that a Belgian decision with respect to the revocation of the gifts could not be recognized in Quebec. In the Court of Appeal’s opinion, the trial judge had also made an error that had caused her analysis concerning the appropriateness of exercising her discretion to order a stay to be unreasonable. It therefore ordered that S’s divorce proceedings in Quebec be stayed . Held (Brown J. dissenting): The appeal should be allowed and the Superior Court’s conclusion on dismissing the application for a stay restored.

Per Wagner C.J. and Moldaver, Karakatsanis, Gascon and Martin JJ.: The conditions for the application of art. 3137 C.C.Q. are met in this case. R has discharged his burden, which is not onerous, of establishing that it is possible that the eventual decision of the Belgian court will be susceptible of recognition in Quebec. However, the Court of Appeal’s intervention in the exercise of the trial judge’s discretion was unwarranted. It was open to the trial judge to conclude that it was appropriate to decline to order a stay as she did in this case. Her decision on this point must therefore be restored.

Article 3137 C.C.Q. establishes the lis pendens exception in Quebec private international law. Under it, a court may stay its ruling on an action brought in Quebec if the dispute is already the subject of proceedings before the courts of a foreign jurisdiction. Although this

article is applied regularly, it constitutes an exception in that the Quebec court is departing from the general principle with respect to cases filed with it by staying proceedings that have in fact been validly brought before it. The international lis pendens exception is intended to allow the domestic court to stay its ruling in order to eventually give effect to the foreign decision in Quebec for the purpose of avoiding a situation in which parallel proceedings result in inconsistent decisions that could both have effects in Quebec.

Under this article, three conditions must be met before a Quebec court may stay its ruling. First, the action must have been filed with the foreign forum first. Second, there must be an identity of parties, of facts and of subject — the condition of three identities — between the two actions that have been brought. Third, it must be possible for the foreign action to result in a decision that will be susceptible of recognition in Quebec. If any one of these conditions is not met, the application for a stay cannot be granted, because there is then not a situation of lis pendens under art. 3137 C.C.Q.

The court cannot raise the international lis pendens exception of its own motion.

Article 3137 C.C.Q. provides that the Quebec authority may stay its ruling on an action only “[o]n the application of a party”. In accordance with the principles of evidence that apply in civil matters, and as in any other case, it is the party who raises international lis pendens and seeks a stay who must show, on a balance of probabilities, that the conditions of that article, including the third one, are met. This is provided for explicitly in art. 2803 para. 1 C.C.Q. , which reads “[a] person seeking to assert a right shall prove the facts on which his claim is based” .

Article 3155 C.C.Q. changes nothing in this regard . It establishes a presumption that the foreign decision is valid, and this presumption can be rebutted only if one of the six exceptions enumerated in that

article applies . While it is true that the condition of susceptibility of recognition under art. 3137 C.C.Q. must be considered in light of the exceptions of art. 3155 C.C.Q. , the burden is still on the party who seeks to benefit from art. 3137 C.C.Q. to show that the three conditions under it are met .

In S’s opinion, what is at issue in the analysis of the third condition in this case is whether art. 1096 of the Belgian Code civil is inconsistent with public order as understood in international relations, which is one of the exceptions to the recognition of foreign judgments that are provided for in art. 3155 C.C.Q. But according to the words setting out this exception, what must be analyzed is the outcome of the foreign decision, not the laws of the foreign jurisdiction. The purpose is not to instruct the foreign authorities in their own law.

The Quebec court’s role is limited to ensuring that a foreign decision is not enforced if the decision’s outcome would be so inconsistent with certain of the underlying values of the Quebec legal system as to be incapable of being incorporated into it. Public order as understood in international relations is thus generally more limited than its domestic law counterpart. The reason for this lies in a desire to apply Quebec rules of conflict that allow for the application of a foreign law under certain conditions even if that law is inconsistent with Quebec law.

Thus, a foreign decision will not be recognized if its outcome runs counter to the moral, social, economic or even political conceptions that underpin Quebec’s legal order. In this case, the trial judge relied solely on an analysis of the discriminatory nature of art. 1096 of the Belgian Code civil to conclude that there was a “great” risk that a Belgian court’s decision would not be recognized in Quebec. The discriminatory nature of the legislative provision can be a relevant factor for purposes of the analysis.

However, an approach as restrictive as the one adopted by the trial judge strays from the requirements of art. 3137 C.C.Q. In the context of art. 3137 C.C.Q. , the assessment of the possibility that the foreign decision is inconsistent with international public order must take into account the required degree of proof. The burden of showing that the third condition is met, that is, that it will be possible for the foreign proceedings to result in a decision that is susceptible of recognition in Quebec, is not an onerous one.

On the basis of the very words of art. 3137 C.C.Q. , the only requirement is that the action pending in the foreign court “can result in a decision which may be recognized in Québec”. Thus, even if the exceptions listed in art. 3155 C.C.Q. remain relevant for the purpose of determining whether the Quebec court may order a stay under art. 3137 C.C.Q. , the burden applicable to international lis pendens differs from the one that applies to the proceeding for recognition and enforcement of the foreign decision.

Where the international lis pendens exception is at issue, the court does not rule on the question whether the foreign judgment should be incorporated into the Quebec legal order; it merely decides whether the proceedings brought in Quebec should be stayed pending the filing there of an application for exemplification. In such situations, the Quebec court does not always have the benefit of a final foreign decision. The analysis with respect to the condition of susceptibility of recognition cannot therefore be completed as definitively as in the context of the exemplification proceeding.

That is why certain authors describe the burden of proof under art. 3137 C.C.Q. in terms of a “prognosis” or a “plausibility” of recognition. The applicant can discharge this burden by showing that it is possible that the foreign decision will eventually be recognized in Quebec. This low threshold can be explained in particular by the underlying purposes of art. 3137 C.C.Q. , namely to foster international comity and avert the risk of potentially conflicting judgments . The trial judge imposed a burden of proof that was more onerous than the one required by art. 3137 C.C.Q.

R was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with public order as understood in international relations. At this time, the outcome of the eventual Belgian decision is uncertain. There are a number of factors in support of the possibility that that outcome will not involve the revocation of the gifts, and therefore that it will not be manifestly inconsistent with this international public order. This is enough to meet the third condition of art. 3137 C.C.Q .

Once the applicant has established that there is in fact a situation of international lis pendens for the purposes of art. 3137 C.C.Q. , the Quebec court must still exercise its discretion and decide whether it should stay its ruling in the circumstances. The discretion under art. 3137 C.C.Q. is grounded in the idea that, even if the dispute was submitted to the foreign court first, and even if none of the exceptions to the recognition of foreign decisions set out in art. 3155 C.C.Q. apply, it is nonetheless possible that the foreign court is not the one that has the closest connections with the dispute.

In this regard, the required analysis is related to the one that applies with respect to the discretion under art. 3135 C.C.Q. , which codifies the doctrine of forum non conveniens in Quebec private international law. Because of this close relationship, the criteria developed by the courts with respect to forum non conveniens also apply to international lis pendens . The list of criteria is not exhaustive, and the weight to be attached to each of the criteria depends on the circumstances. While the perspective specific to each

article differs, there is no reason to distinguish the analysis of the criteria conducted for the purposes of art. 3137 C.C.Q. from the one required in the context of art. 3135 C.C.Q. solely on the basis of the nature of the application. The standard for intervention that should be applied to an exercise of the discretion in the context of international lis pendens is an exacting one. An appeal court should intervene only if the judge who ruled on the application erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision.

A simple difference of opinion will not suffice. In the end, the possible recognition of the Quebec judgment in the other country is the only criterion on which the Court of Appeal relied to substitute its own analysis for that of the trial judge in this case. The Court of Appeal expressed no disagreement with her regarding the other criteria she had discussed. This criterion alone could not justify that court’s intervention in the trial judge’s exercise of her discretion.

The recognition of the Quebec judgment in the other country cannot be a determinative consideration unless the Quebec judgment would not be effective without being enforced in the other country. There is no doubt in this case that the Quebec judgment would be effective, given that much of the valuable property at issue in the litigation is located in Quebec. Per Abella J.: There is agreement that the proceedings in Quebec should not be stayed. However, there is disagreement with the majority’s application of the legal scheme governing the susceptibility of recognition of foreign decisions.

R has not discharged his burden of demonstrating that a Belgian decision rendered under art. 1096 of the Belgian Civil Code permitting the unilateral revocation of gifts could be recognized by a Quebec court. As a result, he has not met the test for a stay. The evidence shows that the Belgian provision is non-discretionary and allows a spouse to unilaterally revoke, without any formalities or justification, gifts bestowed during the marriage. It is an absolute right, even when exercised in bad faith.

More significantly, the revocation contemplated under art. 1096 of the Belgian Civil Code is valid in Belgium even when its application results in flagrant inequalities between spouses. In this case, the husband is seeking to unilaterally revoke over $33 million dollars in assets. As the trial judge found, the consequences for the wife will be catastrophic. The party seeking a stay under art. 3137 of the C.C.Q. bears the burden of demonstrating, on a balance of probabilities, that a stay should be granted.

This includes the burden to demonstrate that the outcome of the foreign decision will not be manifestly inconsistent with public order. Because of the uncertainty usually surrounding the effects of a pending decision, the examination simply requires demonstrating a possibility that the decision will be recognized. While it may be desirable in some cases to await the outcome of a pending proceeding to determine whether it will be inconsistent with the public order condition, art. 3137 of the C.C.Q. does not require a court to do so.

The Court of Appeal was of the view that the burden was not on the husband who was seeking the stay, but on the wife who opposed it. This reversal of the onus led the Court of Appeal to suggest various hypotheticals showing that it was premature to determine at this stage whether the decision would be manifestly inconsistent with public order. Allowing speculation to drive the analysis, rather than the reality of the revocation for the wife, empties the burden on the husband of any meaning.

A decision, or pending decision, cannot be recognized in Quebec if, contrary to art. 3155 of the C.C.Q. , it is “manifestly inconsistent with public order as understood in international relations”. Not every foreign decision that reaches a result different from what it would likely be under Quebec law will be found to violate the fundamental values underlying the international public order.

The international public order exception applies only to situations where the application of a foreign law would contradict the moral, social, economic and political conceptions underlying the Quebec legal system to such an extent as to be incapable of combining with it. The violation of the principle of spousal equality would be manifestly incompatible with public order as understood in international relations. Various international instruments reinforce the view that inequality between spouses in the divorce context is contrary to public order as understood in international relations .

As well, the equality of spouses and the protection of a vulnerable one are philosophical underpinnings of the C.C.Q. The spousal property regime in Quebec allows the spouses to choose together which regime they wish to apply to their property. It is a regime based both on consensus and equality between the parties. Foreign judgments which contradict those conceptions, such as any decision made under art. 1096 of the Belgian Civil Code in this case, will not be recognized in Quebec.

Without any evidence that there is even a possibility of a judgment in Belgium that does not infringe these fundamental public order values, the outcome of the decision under art. 1096 of the Belgian Civil Code could not be recognized in Quebec. Per Brown J. (dissenting): The Quebec Court of Appeal was right to intervene in the discretionary decision of the Quebec Superior Court and grant the requested stay. The appeal should be dismissed.

There is agreement with the majority that the Superior Court erred in concluding that none of the threshold conditions of art. 3137 C.C.Q. for the exercise of the discretion were met. However, the majority fails to address the Superior Court’s error of law with respect to the subject of an action, which directly affected that court’s conclusions relating to the condition of first filing with the foreign authority. These errors had a determinative impact on the Superior Court’s decision to decline to stay its ruling.

There is also disagreement with the majority regarding the Superior Court’s exercise of its discretion. The discretion conferred on the Quebec authority by art. 3137 C.C.Q. has two purposes. First, it is intended to prevent abusive forum shopping, a practice that would on the contrary be encouraged if the Quebec authority systematically deferred to a first filing with a foreign authority. Second, the international lis pendens exception is also intended to avoid a multiplicity of proceedings and a risk of conflicting judgments.

The Superior Court erred in ruling out this risk when it found that the claims concerning the partition of the family patrimony and the compensatory allowance had been submitted to the Quebec court first and that the Cour d’appel de Bruxelles could also order a stay with respect to the claims that have been submitted to the Belgian court first. The Superior Court should not have disregarded as it did the risk of conflicting judgments being rendered by the Quebec and Belgian courts. That was an error of law. The discretion

provided for in art. 3137 C.C.Q. cannot be exercised without giving serious consideration to the very purpose of this article, which is to avoid conflictingjudgments. The courts and the authors recommend that the criteria developed in the context of the doctrine of forum non conveniens be applied tointernational lis pendens cases. These criteria must be assessed from the specific perspective of art. 3137 C.C.Q., which is not the same as that of art. 3135C.C.Q.

The legislature has provided that the Quebec court’s power to decline to exercise its jurisdiction on the basis of forum non conveniens isexceptional in nature. In contrast, ordering a stay in a case of international lis pendens under art. 3137 C.C.Q. is not exceptional; in a spirit of cooperationbased on international comity, Quebec courts are in fact quite open to doing so. Accordingly, it is not necessary to establish that the foreign authority isclearly more appropriate, as is the case in the context of forum non conveniens.

In the context of international lis pendens, it is enough to show that theforeign authority is an appropriate forum. The Superior Court also erred on the issue of the law applicable to the revocation of gifts, that is, on the main issue on which the partiesdisagree. Contrary to the Superior Court’s conclusion, under the Quebec rules of private international law, Belgian law is the law applicable to therevocation of the gifts, at least in respect of the gifts that were given while the parties were residing in Belgium.

Finally, the Superior Court did not consider the fact that an eventual Quebec judgment liquidating the parties’ matrimonial regime would notbe susceptible of recognition in Belgium, where the parties still own numerous assets. Where, as in this case, a foreign authority to which a dispute wassubmitted first is an appropriate forum, the Quebec authority should be circumspect in exercising its discretion to not stay its ruling.

First, if the Quebecauthority declines to stay its ruling, it and the foreign authority could render conflicting judgments, and the Quebec proceedings could prove to be pointlessin the event that the foreign authority to which the dispute was submitted first rendered its decision before the Quebec court.

Second, if the Quebecauthority were to exercise its discretion not to stay its ruling, there might then be a real risk that the Quebec decision would not be susceptible ofrecognition by the foreign authority to which the dispute was submitted first specifically because of the Quebec authority’s violation of the lis pendensrule. In this case, the fact that a Quebec decision is not recognized in another country is an important factor, as the parties have numerous assets inBelgium, which means that a Quebec judgment that cannot be recognized in that country could be of no effect in respect of those assets.

It makes no sensefor a Quebec court to partition the numerous assets located outside Quebec, given that the resulting judgment would not be susceptible of recognition at theplace where the assets are located. Cases Cited By Gascon J. Applied: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; referred to: Oppenheim forfait GMBH v. Lexusmaritime inc., ; Rocois Construction Inc. v. Québec Ready Mix Inc., (SCC), [1990] 2 S.C.R. 440; Droit de la famille —143160, 2014 QCCA 2290; Valois v. Caisse populaire Notre-Dame de la Merci (Montréal), (QC CA), [1995] R.D.J. 609; Birdsall Inc.v.

In Any Event Inc., (QC CA), [1999] R.J.Q. 1344; Samson v. Banque Canadienne Impériale de Commerce, 2010 QCCA 604; M.I.B.v. M.-P.L., 2005 QCCA 1023, [2005] R.J.Q. 2817; Barer v. Knight Brothers LLC, 2019 SCC 13, [2019] 1 S.C.R. 573; Mutual Trust Co. v. St-Cyr (1996), (QC CA), 144 D.L.R. (4th) 338; Resorts International Hotel Inc. v. Auerbach (1991), (QC CA), 89 D.L.R. (4th) 688;Marble Point Energy Ltd. v.

Stonecroft Resources Inc., 2009 QCCS 3478, aff’d 2011 QCCA 141; Droit de la famille — 08689, 2008 QCCA 549; Droit dela famille — 1466, [1991] R.D.F. 492; Droit de la famille — 072464, 2007 QCCS 4822, [2007] R.D.F. 817; Gauvin v. Rancourt, (QCCA), [1953] R.L. 517; Droit de la famille — 151172, 2015 QCCS 2308; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Cormier,Cohen, Davies, Architectes, s.e.n.c. v. Bizzotto, 2009 QCCA 513; Bell v. Molson, 2008 QCCS 992; Melley v. Toyota Canada inc., 2011 QCCS 1229;Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Lebrasseur v.

Hoffmann-La Roche ltée, 2011 QCCS 5457; Bombardier inc. v. FastwingInvestment Holdings Ltd., 2010 QCCS 6665, aff’d 2011 QCCA 432; Boucher v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Spar Aerospace Ltd. v.American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; RudolfKeller SRL v. Banque Laurentienne du Canada, ; Lac d’amiante du Québec ltée v. 2858-0702 Québec inc., . By Abella J. Considered: Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; referred to: Rocois Construction Inc. v.

Québec Ready MixInc., (SCC), [1990] 2 S.C.R. 440; Birdsall Inc. v. In Any Event Inc., (QC CA), [1999] R.J.Q. 1344; Moge v. Moge, (SCC), [1992] 3 S.C.R. 813; Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420. By Brown J. (dissenting) Rocois Construction Inc. v. Québec Ready Mix Inc., (SCC), [1990] 2 S.C.R. 440; Roberge v. Bolduc, (SCC),[1991] 1 S.C.R. 374; Pesant v. Langevin (1926), 41 B.R. 412; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; P. (S.) v. R. (M.), (SCC), [1996] 2 S.C.R. 842; Lacroix v.

Valois, (SCC), [1990] 2 S.C.R. 1259; Droit de la famille — 112606, 2011 QCCA1554; Droit de la famille — 977, (QC CA), [1991] R.J.Q. 904; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Droitde la famille — 10829, 2010 QCCA 713, [2010] R.D.F. 201; Droit de la famille — 2561, [1997] R.D.F. 3; Spar Aerospace Ltd. v. American MobileSatellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Oppenheim forfait GMBH v. Lexusmaritime inc., ; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; Boucher v.

Stelco Inc., 2005 SCC 64,[2005] 3 S.C.R. 279; Birdsall Inc. v. In Any Event Inc., (QC CA), [1999] R.J.Q. 1344; 2493136 Canada inc. v. Sunburst Products Inc.,; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & BlackwellLLP, 2016 SCC 30, [2016] 1 S.C.R. 851. Statutes and Regulations Cited Act to amend the Civil Code of Québec and other legislation in order to favour economic equality between spouses, S.Q. 1989, c. 55. Canadian Charter of Rights and Freedoms, s. 15.

Civil Code of Québec, arts. 391, 392, 394, 414, 416, 427, 513, 514, 521, 585, 599 et seq., 2803, 3081, 3089, 3111 to 3113, 3135, 3137, 3155, 3158, 3167para. 1. Code civil (Belgium), art. 1096. Code of Civil Procedure, CQLR, c. C-25.01, art. 168. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16, 22(1). Loi portant le Code de droit international privé (Belgium), arts. 14, 25(6), 48(1), 49, 51. Treaties and Other International Instruments

Convention on the Elimination of All Forms of Discrimination against Women , Can. T.S. 1982 No. 31, art. 16(1)(c), (h). European Communities. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 , Official Journal of the European Union , vol. 46, L 338, art. 8. European Communities.

Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations , Official Journal of the European Union , vol. 52, L 7, art. 3(c). Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms , 1525 U.N.T.S. 195, art. 5. Universal Declaration of Human Rights , G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 16(1). Authors Cited Castel, Jean-Gabriel. Droit international privé québécois . Toronto: Butterworths, 1980. Emanuelli, Claude.

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APPEAL from a judgment of the Quebec Court of Appeal (Dufresne and Kasirer JJ.A. and Ouellet J. ( ad hoc )), 2017 QCCA 1470 , [2017] AZ-51428714, [2017] J.Q. n o 13361 (QL), 2017 CarswellQue 8510 (WL Can.), setting aside a decision of Hallée J., 2016 QCCS 3357 , [2016] AZ-51305977, [2016] J.Q. n o 8360 (QL), 2016 CarswellQue 6605 (WL Can.). Appeal allowed, Brown J. dissenting. Martin Poulin , Myriam Simard and Molly Krishtalka , for the appellant. Jessica Harding and Julien Hynes-Gagné , for the respondent. No one appeared for the intervener the Attorney General of Quebec.

English version of the judgment of Wagner C.J. and Moldaver, Karakatsanis, Gascon and Martin JJ. delivered by Gascon J. — I. Overview [ 1 ] Three days. That short difference is the reason why the issue of the scope and application of the international lis pendens exception in

Quebec private international law has come up in this case. This issue arises in the context of divorce proceedings between the parties in Belgium and in Quebec. [ 2 ] The respondent, P.R. (“the husband”), filed for divorce in Belgium , in the court of first instance of Brussels, on August 12, 2014. The appellant, R.S. (“the wife”), filed for divorce in Quebec, in the Superior Court, on August 15, 2014. In the same month, the husband applied to the Superior Court under art. 3137 of the Civil Code of Québec (“ C.C.Q. ”) to stay its ruling on the wife’s proceedings in Quebec.

In October 2014, under Belgian law, the husband revoked, in a letter, all the gifts he had given his wife during their marriage. He drew up a non-exhaustive list in which those gifts were valued at over $33 million. [ 3 ] The Superior Court — which considered that it would not be possible to recognize in Quebec a decision of a Belgian court based on the provision of Belgium ’s Code civil under which the gifts in question could be revoked, because that provision is discriminatory — held that the wife’s divorce proceedings in Quebec should not be stayed.

The Court of Appeal reversed that judgment, finding that it would be premature to conclude at that time that a Belgian decision with respect to the revocation of the gifts could not be recognized in Quebec. In the Court of Appeal’s opinion, the trial judge had also made an error that had caused her analysis concerning the appropriateness of exercising her discretion to order a stay to be unreasonable.

The Court of Appeal therefore ordered that the wife’s proceedings in Quebec be stayed with the exception of those on the issue of corollary relief — child custody, support obligations and use of the family residence — which had been submitted only to the Quebec authorities. [ 4 ] In this appeal, this Court must first consider the conditions for the application of art. 3137 C.C.Q. , which establishes the exception of international lis pendens in Quebec private international law, and in particular the condition of susceptibility of recognition of a foreign decision in Quebec.

After that, the Court must turn to the principles for exercising the discretion the Quebec authorities have where that

article does apply. [ 5 ] In my opinion, the conditions for the application of art. 3137 C.C.Q. are met in this case. The husband has discharged his burden of establishing that it is possible that the eventual decision of the Belgian court will be susceptible of recognition in Quebec. However, I am of the view that the Court of Appeal’s intervention in the exercise of the trial judge’s discretion was unwarranted.

Although I do not agree with the trial judge’s analysis in every respect, I find that it was open to her to conclude that it was appropriate to decline to order a stay as she did in the circumstances of this case. I would therefore allow the wife’s appeal and restore the trial judge’s conclusion on dismissing the husband’s application for a stay. II. Background [ 6 ] The husband and the wife first met in Paris in the 1990s. The wife was a Moroccan national and the husband, a French national.

Two children, born in 1997 and 2002, resulted from their relationship. [ 7 ] The husband and the wife are wealthy individuals who have extensive investments in a number of countries. They left France for tax purposes in 2004, moving to Brussels, Belgium . They married there on December 21, 2004 after signing a marriage contract before a notary on December 13 . In that contract, the couple opted for the regime of separation of property. [ 8 ] In 2012, all the members of the family obtained Belgian nationality, and the husband definitively renounced his French nationality.

That same year, the parties also took steps to obtain citizenship in St. Kitts and Nevis. In addition, the family had been considering the possibility of immigrating to Quebec since 2008. This led the parties to acquire a luxury property in Quebec in 2013 and to move there with their children in July of that year. Ultimately, the husband and wife established their family residence there . [ 9 ] In 2014, the couple’s relationship deteriorated. On August 3 of that year, when they were on vacation at their secondary residence in Belgium , the wife told the husband that she had decided to terminate their union.

Less than two weeks later, two applications for divorce were brought, one by the husband in Belgium on August 12, and the other by the wife in Quebec on August 15. [ 10 ] In his proceedings in the Belgian court, the husband essentially sought a judgment granting a divorce and liquidation of the matrimonial regime. He also asked the court to rule on whether the Belgian courts had jurisdiction over the case as well as on the law applicable to the divorce, to the liquidation of the matrimonial regime, to the revocation of the gifts, and to the compensatory allowance should the wife make such a request in Belgium .

As for the wife, aside from a judgment granting a divorce and liquidation of the matrimonial regime, she asked the Quebec court to rule on child custody, on support for her and for the children, on partition of the family patrimony and on the payment of a compensatory allowance. All the wife’s claims were made under Quebec law. [ 11 ] On August 20, 2014, the husband countered the proceedings brought by the wife in Quebec by bringing the motion to dismiss and for a stay that is the subject of this appeal.

He asked the Superior Court to stay its ruling on the dispute between himself and his wife on the basis of international lis pendens under art. 3137 C.C.Q. He also asked the Quebec court to decline jurisdiction on the basis of forum non conveniens under art. 3135 C.C.Q. [ 12 ] The husband subsequently notified the wife on October 17, 2014, citing art. 1096 of the Belgian Code civil , that he was revoking all the gifts he had given her while they were married.

Article 1096, which provides that spouses may at their discretion revoke any gifts given in the course of their marriage, reads as follows: [ translation ] 1096. Any gifts between spouses that are given while they are married otherwise than by marriage contract shall, even if described as gifts inter vivos , be revocable at all times. . . .

Such gifts may not be revoked by reason of the arrival of children. [ 13 ] In his letter, the husband listed the revoked gifts by categories: cash gifts (CAN$16.2 million), assignments of claims (CAN$695,000), stock-exchange securities (CAN$1.4 million), jewellery and watches (CAN$6 million), valuable bags (CAN$2.08 million), collector shawls (CAN$3.6 million), the car (CAN$98,000) and a half-share of immovable property (CAN$3.55 million). In this regard, he said that he was revoking the gift of half the value of the family residence in Quebec, which was valued at CAN$6.6 million.

He also mentioned that the list was not exhaustive and that this was only the first part of the gifts he intended to revoke . As the Superior Court and the Court of Appeal noted, it is because of this revocation that the choice of forum is the main issue of the litigation between the parties. [ 14 ] In parallel with the application for a stay filed by the husband in Quebec, the wife filed a similar application with the Belgian authorities. She submitted, in particular, that the Belgian court should declare that it did not have jurisdiction to rule on the divorce and the liquidation of the matrimonial regime.

In the alternative, she asked that court to stay its ruling pending the decision of the Quebec court in the matter, arguing that Quebec law applied to all the claims. Should the Belgian court decide to apply Belgian law to the revocation of the gifts, she intended to apply for a declaration that art. 1096 of that country’s Code civil is unconstitutional. [ 15 ] The Belgian court of first instance rendered its decision on the issues related to international lis pendens on December 16, 2015. It

concluded that the parties’ applications had the same purpose, a judgment granting a divorce, and that the dispute had been submitted to the Belgian courtfirst, on August 12, 2014. The court therefore declared that the Belgian authorities had jurisdiction to hear the application for a divorce and that it was notappropriate to stay its ruling pending a ruling by the Quebec authorities on the lis pendens exception the husband had raised in Quebec.

The Belgian courtalso concluded that Canadian law applied to the judgment granting a divorce and Quebec law to the claim for a compensatory allowance, but that it wasBelgian law that applied to the liquidation of the matrimonial regime, to the revocation of the gifts and to the partition of the family patrimony. [16] The wife appealed the Belgian court’s judgment. The Cour d’appel de Bruxelles rendered its decision on September 20, 2018,upholding the trial court’s judgment in almost every respect.

It began by accepting that the Belgian authorities had jurisdiction to hear the case and that itwould not be appropriate to order a stay. It then recognized that Canadian law applied to the application for a divorce and granted the divorce between thespouses immediately. However, it held that it was instead Belgian law that should apply to the issue of the compensatory allowance.

Finally, the Courd’appel de Bruxelles reserved judgment on the law applicable to the partition of the family patrimony and to the revocation of the gifts. [17] It was in the context of these parallel proceedings in Belgium that the Superior Court and the Court of Appeal ruled in Quebec on thehusband’s motion to dismiss and for a stay. It should be pointed out, however, that the decision of the Cour d’appel de Bruxelles was rendered after thejudgments of the Superior Court and the Court of Appeal that are the subject of this appeal. III. Judicial History A.

Quebec Superior Court (2016 QCCS 3357) [18] In a judgment dated July 15, 2016, the Superior Court dismissed the husband’s application for a stay on the basis of international lispendens. The trial judge began by noting that for a situation of international lis pendens to exist, the dispute must have been submitted to the foreignauthorities first; in her view, such a determination must be based on the law of the foreign jurisdiction. Citing the evidence of experts on the applicableBelgian law, she found that the date when the dispute was submitted must be determined on the basis of each of the claims.

But, she stated, the husbandhad, in the proceedings he filed with the Belgian authorities on August 12, 2014, sought only a judgment granting a divorce and the liquidation of thematrimonial regime. It was the wife who had been first to file claims with respect to the partition of the family patrimony, the payment of a compensatoryallowance and the revocation of the gifts, and she had done so in the Quebec court. What is more, the issues with respect to child custody and the parties’support obligations had quite simply not been submitted to the Belgian authorities.

This led the trial judge to find that art. 3137 C.C.Q. could not apply tothese claims, because the condition of first filing had not been met. She also expressed the opinion that the Cour d’appel de Bruxelles could either order astay on or decline jurisdiction over all the issues. [19] The trial judge nonetheless pursued her analysis regarding the conditions for the application of art. 3137 C.C.Q. so as to determinewhether it was possible for the Belgian proceedings to result in a decision that would be susceptible of recognition in Quebec under art. 3155 C.C.Q.

Inparticular, she considered whether art. 1096 of the Belgian Code civil is manifestly inconsistent with public order as understood in international relations,which would, by virtue of art. 3155(5) C.C.Q., preclude the recognition of the foreign judgment in Quebec. In her opinion, [translation] “there is a greatrisk” that a Belgian decision approving the revocation of the gifts would not be recognized in Quebec, because art. 1096 of the Belgian Code civil isdiscriminatory, and contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms.

She added that there is no remedial measure under Belgian lawthat could offset the impact of the revocations on the wife’s financial situation, and she concluded that the effects of enforcing that decision in Quebecwould accordingly be disastrous. [20] That analysis led the trial judge to decline to rule on the constitutional question raised by the wife, that is, whether art. 3167 para. 1C.C.Q. should be declared to be invalid or inoperative on the basis that it unduly adds to the criteria for recognition of a foreign divorce under s. 22(1) ofthe Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

She pointed out that this question would become moot should a Belgian court’s decision not be recognizedin Quebec for one of the reasons set out in art. 3155 C.C.Q., or should the Belgian Cour d’appel decide to stay the proceedings in Belgium. [21] The trial judge found that the conditions of first filing, of three identities (that is, identity of facts, of subject and of parties between theparallel proceedings) and of susceptibility of recognition of the foreign decision that are provided for in art. 3137 C.C.Q. were therefore not met.

Despitethese conclusions, she nonetheless considered the question whether it was appropriate to stay the Quebec proceedings. She stressed that, even if all theconditions of art. 3137 C.C.Q. are met, the Quebec court always retains the discretion to decline to stay its ruling in favour of a foreign authority to whichthe same dispute was submitted first.

Given that, in her view, the analysis required by art. 3137 C.C.Q. is similar in many ways to the one that applies inthe context of the doctrine of forum non conveniens, which is now codified in art. 3135 C.C.Q., she considered each of the 10 criteria set out in this regardin Oppenheim forfait GMBH v. Lexus maritime inc., (Que. C.A.).

Her analysis with respect to these criteria led her to conclude thatordering a stay was not appropriate in the circumstances of this case. [22] In light of that conclusion, the trial judge did not rule on the appropriateness of declining jurisdiction on the basis of forum nonconveniens. B. Quebec Court of Appeal (2017 QCCA 1470) [23] On September 29, 2017, the Court of Appeal allowed the husband’s appeal, dismissed the wife’s incidental appeal and reversed the trialjudge’s decision.

It ordered a stay of the Quebec proceedings, with the exception of those concerning child custody, support obligations and use of thefamily residence, until the Belgian courts had ruled on the issues pending before them. [24] The Court of Appeal identified the situations in which a Quebec court can stay its ruling under art. 3137 C.C.Q. It stated that in acontext of international lis pendens, the Quebec court does not have the discretion to order a stay if it is clear that the action pending in the foreign forumcan result in a decision that is susceptible of recognition in Quebec.

Similarly, the Quebec court must decline to order a stay if it is clear that the foreigndecision will not be susceptible of recognition in Quebec.

The Court of Appeal noted that it is only when there is a doubt as to the susceptibility ofrecognition of the foreign judgment in Quebec that the Quebec court can exercise its discretion to rule on the issue of international lis pendens. [25] On the conditions for the application of art. 3137 C.C.Q., the Court of Appeal distanced itself from the trial judge’s conclusions on,first, the three identities with respect to the applications and first filing in the foreign court and, second, the susceptibility of recognition of the foreigndecision in Quebec. [26] On the first point, the Court of Appeal stated that the identity of subject and the date of filing in the foreign court are not determinedindividually for each claim as the trial judge did.

It is instead necessary to identify the nature of the action as a whole in order to determine whether there isan identity of subject; once that is done, it is then necessary to determine whether a substantially identical action was filed first in the foreign court. TheCourt of Appeal found that there was an identity of subject in the proceedings in this case, as they essentially concerned two applications for a divorce towhich claims for corollary relief relating to the effects and the dissolution of marriage were attached.

The Court of Appeal concluded that because theapplication for a divorce had been filed in the Belgian court before one was filed in the Quebec court, and because it was common ground that theproceedings were based on the same facts and involved the same parties, the conditions of three identities and of first filing had been met. [27] On the second point, the Court of Appeal expressed the opinion that art. 3155 C.C.Q. establishes a presumption of recognition offoreign decisions and that the application of art. 3137 C.C.Q. must be considered in light of that general principle of recognition.

Hence, it is the party who

objects to the order for a stay who must rebut that presumption and show, by establishing that one of the exceptions listed in art. 3155 C.C.Q. applies, thatthe foreign decision will not be susceptible of recognition. [28] In this regard, the Court of Appeal stated that the trial judge had erred in finding that there was a [translation] “great” risk that theBelgian decision would not be recognized in Quebec solely on the basis that art. 1096 of the Belgian Code civil is incompatible with the CanadianCharter.

In the Court of Appeal’s opinion, this reasoning not only confused domestic public order with public order as understood in internationalrelations, but also did not correspond to the criterion of art. 3155(5) C.C.Q., which requires that the analysis focus not on the consistency of the foreignlaw, but on the consistency of the outcome of the other forum’s decision.

The Court of Appeal also stressed that the risk of the decision not beingrecognized on the basis of the application of Belgian law to the revocation of the gifts is mitigated by other considerations, including the facts that theconstitutionality of art. 1096 of the Belgian Code civil may be challenged in that country’s Cour constitutionnelle, that it is unlikely that the husband’s listof revoked gifts will be confirmed as is, and that the calculation of the compensatory allowance may ultimately take the loss resulting from the revocationof the gifts into account, given that the Belgian court has held that Quebec law will apply to that claim.

This led the Court of Appeal to conclude that thecondition of susceptibility of recognition was met. [29] The Court of Appeal also rejected the wife’s argument that s. 22(1) of the Divorce Act would prevent the foreign judgment from beingrecognized in Quebec, because the Belgian court of first instance had determined that the judgment granting the divorce would be governed by Canadianlaw. [30] Despite its conclusion that all the conditions of art. 3137 C.C.Q. were met, and despite its view that the analysis could [translation] “endhere” because the decision would clearly be susceptible of recognition in Quebec and because the “Quebec court must therefore order a stay in thecircumstances” (para. 106 ), the Court of Appeal nonetheless went on to consider the exercise of the discretion to order a stay in this case. [31] On this point, the Court of Appeal stated that the trial judge had failed to consider whether it would be possible for the Quebecjudgment to be recognized in the other country.

On the basis of the expert evidence presented at trial, the court noted that, because the dispute had beensubmitted to the Belgian authorities first, the Belgian court would not be able to order a stay unless the Cour d’appel de Bruxelles were to reverse thejudgment rendered at first instance in Belgium.

As well, in the Court of Appeal’s view, the trial judge’s failure to consider this had tainted her exercise ofthe discretion and made it unreasonable, and the trial judge should have concluded that ordering a stay was necessary because it would be impossible forthe judgment that would be rendered in Quebec to be recognized in Belgium. [32] Finally, the Court of Appeal dismissed the wife’s incidental appeal, which challenged the constitutionality of para. 1 of art. 3167 C.C.Q.on the ground that it is inconsistent with s. 22(1) of the Divorce Act.

The court considered that constitutional issue to be moot, pointing out that the DivorceAct provision in question does not apply in this case given that its scope is limited to divorces granted “pursuant to a law of a country . . . other thanCanada”. IV. Issues [33] Before beginning the analysis, I must make two things clear. [34] First, in this Court, the parties do not question the Court of Appeal’s conclusions regarding the

interpretation and application of the firstcondition of art. 3137 C.C.Q., that of first filing in the foreign forum. That the date of filing is determined on the basis not of each separate claim, but ofthe principal claim, is not in issue. In this case, the first application for a divorce — which includes on an incidental basis the claims with respect to theeffects and the dissolution of marriage — was filed with the Belgian authorities. Nor do the parties question that the second condition, that of threeidentities, provided for in art. 3137 C.C.Q. is met in this case.

Lastly, the wife has withdrawn her challenge to the constitutionality of art. 3167 para. 1C.C.Q. The divorce has in fact now been granted by the Cour d’appel de Bruxelles pursuant to the Divorce Act, which means that that provision of theC.C.Q. does not apply here.

Because these points are no longer at issue, they need not be discussed in these reasons. [35] Second, it should be noted that, independently of the outcome of this appeal on the issue of international lis pendens, the litigationbetween the husband and wife on the matter of the corollary relief relating to their divorce will be pursued on both sides of the Atlantic. Even if it shouldprove to be appropriate to grant a stay in Quebec, it is agreed that the issues relating to child custody, support obligations and use of the family residenceremain before the Quebec authorities.

The Belgian authorities do not have jurisdiction under their laws to consider those claims. Even if these issues areincidental to the application for a divorce, they cannot be the subject of a decision in Belgium, let alone of a decision that would be susceptible ofrecognition in Quebec. Likewise, if it proved to be inappropriate to order a stay in Quebec, the pending proceedings would be pursued in parallel inBelgium, because the Belgian court assumed jurisdiction and declined to stay its ruling, a conclusion that was upheld by the Cour d’appel de Bruxelles.

Inshort, regardless of the outcome of the appeal, a bifurcation of the divorce proceedings between the parties is inevitable. [36] These points having been made, the questions this Court must answer are limited to the following: 1. Did the Court of Appeal err in attributing the burden of proof and in interpreting the degree of proof required for the condition of susceptibility ofrecognition of the foreign judgment under art. 3137 C.C.Q.? 2. What are the conditions for exercising the judge’s discretion under art. 3137 C.C.Q. in relation to international lis pendens?

Was the Court of Appealjustified in intervening in the trial judge’s conclusions in this regard? V. Analysis A. Lis Pendens Exception in Quebec Private International Law [37]

Article 3137 C.C.Q. establishes the lis pendens exception in Quebec private international law. Under it, a court may stay its ruling on anaction brought in Quebec if the dispute is already the subject of proceedings before the courts of a foreign jurisdiction. Although this

article is appliedregularly, it constitutes an exception in that the Quebec court is departing from the general principle with respect to cases filed with it by stayingproceedings that have in fact been validly brought before it.

Article 3137 C.C.Q. reads as follows: 3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties,based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision whichmay be recognized in Québec, or if such a decision has already been rendered by a foreign authority. [38] Under this article, three conditions must be met before a Quebec court may stay its ruling. First, the action must have been filed with theforeign forum first.

Second, there must be an identity of parties, of facts and of subject — the condition of three identities — between the two actions thathave been brought. Third, it must be possible for the foreign action to result in a decision that will be susceptible of recognition in Quebec. Only theapplication of this third condition is at issue in this case. [39] I wish to be clear that if any one of these conditions is not met, the application for a stay cannot be granted, because there is then not asituation of lis pendens under art. 3137 C.C.Q.

In such a case, the underlying considerations of art. 3137 C.C.Q. simply do not apply, and it is as a resultnot open to the Quebec court to stay its ruling. For example, regarding more specifically the condition of susceptibility of recognition, it will not be met if

the foreign authorities do not have jurisdiction (art. 3155(1) C.C.Q.; Rocois Construction Inc. v. Québec Ready Mix Inc., (SCC), [1990] 2S.C.R. 440, at p. 450; Droit de la famille — 143160, 2014 QCCA 2290, at para. 25 ; Valois v. Caisse populaire Notre-Dame de la Merci(Montréal), (QC CA), [1995] R.D.J. 609 (C.A.), at p. 614). By the same logic, a foreign decision that would be manifestly inconsistentwith public order as understood in international relations would not be susceptible of recognition, as the very words of art. 3155(5) C.C.Q. would apply toit.

If recognition is not possible, there could not be conflicting judgments, and therefore the question of lis pendens quite simply would not arise. [40] If, however, the conditions of art. 3137 C.C.Q. are all met, then there is an international lis pendens situation. That is not the end of thematter, though. In such a case, the court must continue with the analysis in order to decide whether the Quebec proceedings should be stayed.

It is onlywhere the court has found that it is appropriate to exercise the discretion conferred on it by the legislature in art. 3137 C.C.Q. that the application for a stayon the basis of international lis pendens can be granted.

(1) Burden and Degree of Proof Applicable to the Condition of Susceptibility of Recognition [41] The husband does not deny that it was he who had to show that the dispute was submitted to the Belgian tribunal first and that thecondition of three identities between the Belgian and Quebec proceedings is met. But he argues that the situation is different where the third condition, thatof susceptibility of recognition of the Belgian decision in Quebec, is concerned. [42] In the husband’s opinion, art. 3155 C.C.Q. establishes a presumption that the foreign decision is valid, and this presumption can berebutted only if one of the six exceptions enumerated in that

article applies. He submits that the condition of susceptibility of recognition under art. 3137C.C.Q. must be assessed in light of art. 3155(5) C.C.Q., the effect of which is to indirectly grant him the benefit of that presumption, and that the burden ofproving an exception is therefore on the party who seeks to take advantage of it (art. 2803 para. 2 C.C.Q.). The husband concludes from this that it is thewife who must establish that, as an exception from this general principle of validity of the foreign decision, the Belgian decision will not be susceptible ofrecognition in Quebec.

The Court of Appeal seems to have agreed with him. It suggested that art. 3137 C.C.Q. [translation] “reflects essentially the samelogic” as the principle of recognition under art. 3155(5) C.C.Q. (para. 109). [43] The wife argues that it is instead the party seeking to benefit from a stay of proceedings under art. 3137 C.C.Q. who bears the burdenof showing that all the conditions provided for in that

article are met. Susceptibility of recognition of the Belgian decision in Quebec is one of thoseconditions, and it should not be dealt with differently than the other two conditions provided for in the article. [44] I agree with the wife’s approach. The court cannot raise the international lis pendens exception of its own motion (Birdsall Inc. v. InAny Event Inc., (QC CA), [1999] R.J.Q. 1344 (C.A.), at pp. 1351-52; Samson v. Banque Canadienne Impériale de Commerce, 2010QCCA 604, at para. 20 ; C. Emanuelli, Droit international privé québécois (3rd ed. 2011), at No. 171).

Article 3137 C.C.Q. provides that theQuebec authority may stay its ruling on an action only “[o]n the application of a party”. In accordance with the principles of evidence that apply in civilmatters, and as in any other case, it is the party who raises international lis pendens and seeks a stay under art. 3137 C.C.Q. who must show, on a balanceof probabilities, that the conditions of that

article are met. This is provided for explicitly in art. 2803 para. 1 C.C.Q., which reads “[a] person seeking toassert a right shall prove the facts on which his claim is based”. In the case at bar, it is the husband who is asking the Quebec court to stay its ruling on thebasis that proceedings are pending in the courts of Belgium. This means that it is he who must prove the facts in support of his claim that the matter wassubmitted to the Belgian authorities first, that there is an identity of facts, of parties and of subject between the Belgian proceedings and those in Quebec,and that the Belgian proceedings could result in a decision that is susceptible of recognition in Quebec. [45]

Article 3155 C.C.Q. changes nothing in this regard. The party who seeks the stay is opposing the other party’s right to pursueproceedings that were validly brought in Quebec. Because the dispute was properly submitted to the Quebec authorities, it is the party who objects to itsbeing heard who must show why they should decline to exercise their jurisdiction and order a stay.

The conditions of art. 3137 C.C.Q. are intended to,among other things, ensure that Quebec proceedings are not stayed vainly; it is of course pointless to stay a ruling if it is clear that the foreign proceedingscannot result in a decision that is susceptible of recognition in Quebec (G. Goldstein and E. Groffier, Droit international privé, vol. I, Théorie générale(1998), at No. 137; Emanuelli, at No. 170).

It is therefore the party who raises the right to stay proceedings in Quebec on the ground that the same matteris pending in a foreign court who must show the Quebec court that it will be possible for the foreign proceeding to result in a decision that is susceptible ofrecognition in Quebec and that the stay of the Quebec proceedings will not be vain. [46] Thus, while it is true that the condition of susceptibility of recognition under art. 3137 C.C.Q. must be considered in light of theexceptions of art. 3155 C.C.Q., the burden is still on the party who seeks to benefit from art. 3137 C.C.Q. to show that the three conditions under it aremet.

For example, it is the party who raises international lis pendens who must prove that the foreign court has jurisdiction (M.I.B. v. M.-P.L., 2005 QCCA1023, [2005] R.J.Q. 2817, at para. 51). And if the foreign court has no jurisdiction as provided for in art. 3155(1) C.C.Q., it will be impossible for theforeign proceedings to ever result in a decision that is susceptible of recognition in Quebec (Barer v. Knight Brothers LLC, 2019 SCC 13, [2019] 1 S.C.R.573, at para. 29).

Although the dispute between the parties does not relate to the jurisdiction of the Belgian court, the same logic must apply to showingthat the outcome of the foreign decision will not be manifestly inconsistent with public order as understood in international relations (art. 3155(5) C.C.Q.).When, for the purposes of art. 3137 C.C.Q., the person who opposes the stay contends, for one of the reasons set out in art. 3155 C.C.Q., that it will beimpossible for the foreign decision to be recognized in Quebec, it is the person who seeks to obtain the stay of proceedings who must show that the foreigndecision meets this condition.

The reason for this conclusion is obvious: if the outcome of the foreign decision will be manifestly inconsistent with publicorder as understood in international relations, it is inappropriate to stay the Quebec proceedings, because it will be impossible for that decision to berecognized in Quebec. There is therefore no risk of conflicting judgments in such a case.

I note that the international lis pendens exception is intended toallow the domestic court to stay its ruling in order to eventually give effect to the foreign decision in Quebec for the specific purpose of avoiding asituation in which parallel proceedings result in inconsistent decisions that could both have effects in Quebec (G.

Goldstein, Droit international privé,vol. 2, Compétence internationale des autorités québécoises et effets des décisions étrangères (Art. 3134 à 3168 C.c.Q.) (2012), at No. 3137 550). [47] Where, however, the foreign decision will not be susceptible of recognition or enforcement in Quebec, there is no risk of such asituation, which means that the considerations that would justify ordering a stay of proceedings do not come into play.

In this regard, there is no doubt thatthe susceptibility of recognition of the foreign decision is among the facts that support the claim of the person who seeks to obtain the stay of the Quebecproceedings: if there is no possibility that the foreign decision will be recognized, an application for a stay cannot be granted.

It is therefore the personwho brings such an application who must show, among other things, that the outcome of the eventual decision will not be manifestly inconsistent withpublic order as understood in international relations. [48] That being said, the burden of showing that it will be possible for the foreign proceedings to result in a decision that is susceptible ofrecognition in Quebec is not an onerous one. On the basis of the very words of art. 3137 C.C.Q., the only requirement is that the action pending in theforeign court “can result in a decision which may be recognized in Québec”.

Thus, even if the exceptions listed in art. 3155 C.C.Q. remain relevant for thepurpose of determining whether the Quebec court must order a stay under art. 3137 C.C.Q., the burden applicable to international lis pendens differs fromthe one that applies to the proceeding for recognition and enforcement of the foreign decision.

Where the international lis pendens exception is at issue, thecourt does not rule on the question whether the foreign judgment should be incorporated into the Quebec legal order; it merely decides whether theproceedings brought in Quebec should be stayed pending the filing there of an application for exemplification (Goldstein and Groffier, at Nos. 131.1 and137; Emanuelli, at No. 297).

In such situations, the Quebec court does not always have the benefit of a final foreign decision when an application for a stayis filed with it, and the analysis with respect to the condition of susceptibility of recognition cannot be completed as definitively as in the context of theexemplification proceeding. That is why certain authors describe the burden of proof under art. 3137 C.C.Q. in terms of a [translation] “prognosis” or a“plausibility” of recognition (Goldstein (2012), at No. 3137 575; Goldstein and Groffier, at No. 137). The applicant can discharge this burden by showing

that it is possible that the foreign decision will eventually be recognized in Quebec (Goldstein (2012), at No. 3137 575; Goldstein and Groffier, atNo. 137). This low threshold can be explained in particular by the underlying purposes of art. 3137 C.C.Q., namely to foster international comity and avertthe risk of potentially conflicting judgments. [49] In the case at bar, I find that the husband has discharged this burden. I am of the view that the Superior Court erred on this point bytaking an overly demanding approach in light of the actual words of the provision.

(2) Condition of Susceptibility of Recognition of the Belgian Decision [50] In her analysis, the trial judge considered whether it would be possible for the Belgian action to result in a decision that is susceptible ofrecognition in Quebec. In doing so, she inquired into whether art. 1096 of the Belgian Code civil is inconsistent with public order as understood ininternational relations, one of the exceptions to the recognition of foreign judgments that are provided for in art. 3155 C.C.Q.

She concluded from thisinquiry that the Belgian provision unjustifiably discriminates against married couples in that they are treated as if they are incapable of giving free andinformed consent in giving gifts while they are married. She expressed the opinion that the provision is inconsistent not only with the approach to thequestion taken by the legislature in the C.C.Q., but also with the law of other European countries (Sup. Ct. reasons, at paras. 111-15 ). Inparticular, she found that it is contrary to s. 15(1) of the Canadian Charter.

The trial judge wrote on this basis that there was a “great” risk that a Belgiandecision confirming the revocation of the gifts would not be recognized in Quebec.

She also expressed the opinion that there is no remedial measure underBelgian law that could offset the impact of this revocation on the wife’s financial situation (paras. 120-24). [51] I agree with the Court of Appeal that it was not appropriate for the trial judge to rely solely on an analysis of the discriminatory natureof art. 1096 of the Belgian Code civil in order to conclude that there was a “great” risk that a Belgian court’s decision would not be recognized in Quebec.It is true that the discriminatory nature of the legislative provision can be a relevant factor for purposes of the analysis.

However, an approach as restrictiveas the one adopted by the trial judge is inconsistent with the wording of the exception set out in art. 3155(5) C.C.Q., which reads as follows: 3155. A decision rendered outside Québec is recognized and, where applicable, declared enforceable by the Québec authority, except in the followingcases: . . . (5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations; [52] It is clear from this provision that what must be analyzed is the outcome of the foreign decision, not the laws of the foreign jurisdiction.And

article 3081 C.C.Q. is consistent with this. The purpose is not to instruct the foreign authorities in their own law. The Quebec court’s role is limited toensuring that a foreign decision is not enforced if the decision’s outcome would be so inconsistent with certain of the underlying values of the Quebec legalsystem as to be incapable of being incorporated into it (Emanuelli, at No. 299). In my opinion, therefore, it is inappropriate to see art. 3155(5) C.C.Q. asrequiring that the court consider the merits of the decision or of the foreign law.

To conclude otherwise is inconsistent not only with the words ofarts. 3155(5) and 3081 C.C.Q., but also with those of art. 3158 C.C.Q., which expressly bars Quebec authorities from “considering the merits of thedecision” at issue in an enforcement proceeding. In sum, the requirement of consistency with public order simply means that the court must ensure that thesolution provided by the foreign judgment can be harmoniously incorporated into the legal order of the Quebec forum (Goldstein and Groffier, at No. 166;Emanuelli, at Nos. 299 and 466-69; J. A.

Talpis, L’accommodement raisonnable en droit international privé québécois (2009), at pp. 7-9; G. Goldstein,De l’exception d’ordre public aux règles d’application nécessaire: Étude du rattachement substantiel impératif en droit international privé canadien(1996), at p. 53; Mutual Trust Co. v. St-Cyr (1996), (QC CA), 144 D.L.R. (4th) 338 (Que. C.A.), at pp. 344-45; Resorts InternationalHotel Inc. v. Auerbach (1991), (QC CA), 89 D.L.R. (4th) 688 (Que. C.A.); Marble Point Energy Ltd. v.

Stonecroft Resources Inc., 2009QCCS 3478 (“Stonecroft, QCCS”), aff’d 2011 QCCA 141; Droit de la famille — 08689, 2008 QCCA 549; Droit de la famille — 1466, [1991] R.D.F. 492(C.A.); Droit de la famille — 072464, 2007 QCCS 4822, [2007] R.D.F. 817, aff’d on this point Droit de la famille — 08689). [53] This leads me to a second point. Public order as understood in international relations is generally more limited than its domestic lawcounterpart (Ministère de la Justice, Commentaires du ministre de la Justice, vol.

II, Le Code civil du Québec — Un mouvement de société (1993), atp. 1954; Goldstein (2012), at No. 3155 615; Emanuelli, at No. 298; J.-G. Castel, Droit international privé québécois (1980), at p. 90; Stonecroft, QCCS;Droit de la famille — 1466; Auerbach, at p. 693; Gauvin v. Rancourt, (QC CA), [1953] R.L. 517 (B.R.)). The reason for this lies in adesire to apply Quebec rules of conflict that allow for the application of a foreign law under certain conditions even if that law is inconsistent with Quebeclaw (Emanuelli, at No. 465). But such inconsistencies have limits.

Thus, a foreign decision will not be recognized if its outcome runs counter to the moral,social, economic or even political conceptions that underpin Quebec’s legal order (Droit de la famille — 151172, 2015 QCCS 2308, at paras. 84-86; Goldstein (2012), at No. 3155 615; Goldstein and Groffier, at Nos. 119-20). Such a divergence must be serious, and it must be assessed inconcrete terms in order to determine whether the incorporation of the outcome in question into Quebec’s legal order does in fact give rise to that conflict ofconceptions (G.

Goldstein, Droit international privé, vol. 1, Conflits de lois: dispositions générales et spécifiques (Art. 3076 à 3133 C.c.Q.) (2011), atNo. 3081 555; Goldstein and Groffier, at No. 166). [54] That being said, in the context of an application for a stay on the basis of international lis pendens under art. 3137 C.C.Q., any analysisof the possibility that the foreign decision is inconsistent with public order as understood in international relations for the purposes of art. 3155(5) C.C.Q.must take into account the required degree of proof, which is particularly low.

In such a case, the person who seeks a stay of proceedings brought inQuebec need show only that it is possible that the outcome of the foreign decision will not be manifestly inconsistent with international public order(Goldstein (2012), at No. 3137 575; Goldstein and Groffier, at No. 137).

As has already been mentioned, this amounts only to a prognosis, as the analysiswill have to be confirmed later, at the stage of the proceeding for recognition and enforcement of the foreign decision, after a judgment has been renderedby the foreign forum and the Quebec court can determine whether one of the exceptions of art. 3155 C.C.Q. applies to the final decision (Goldstein (2012),at No. 3137 575).

Thus, it is only where there are clear conflicts with fundamental Quebec values that a court can conclude that it will be impossible for anaction pending in another country to result in a decision that is susceptible of recognition in Quebec on the basis that the decision will be manifestlyinconsistent with public order as understood in international relations (arts. 3081 and 3155(5) C.C.Q.; Goldstein (2011), at No. 3081 560; Emanuelli, atNos. 299 and 464-66; Goldstein and Groffier, at No. 120). [55] In the instant case, I agree with the Court of Appeal that the trial judge’s analysis on this point was, erroneously, too strict.

Likewise, Ifind, with respect, that the analysis of my colleague Abella J. strays from the requirements of the provision at issue here. [56] First of all, the analysis should have focused on the outcome of the Belgian court’s eventual decision, not on the question whetherart. 1096 of the Belgian Code civil is consistent with the Canadian Charter.

Although that question can provide insight into the values that underpin thelegal order of Quebec and of Canada, the prognosis of recognition of the foreign decision does not boil down to determining whether and attesting that theapplicable foreign law — art. 1096 in this case — is consistent with our domestic law (Goldstein and Groffier, at No. 166; Emanuelli, at Nos. 299 and466-69; Talpis (2009), at pp. 7-9; Goldstein (1996), at p. 53). Rather, the issue is whether the outcome of the foreign decision is manifestly inconsistentwith public order as understood in international relations.

This means that the focus of the analysis must be on the outcome of the eventual decision, not onthe foreign law. In the instant case, the trial judge attached too much importance to the question whether the Belgian law is consistent with the CanadianCharter, whereas it was instead the outcome of the eventual Belgian decision that should have been examined more extensively. On this question, theCourt of Appeal cited Quebec (Attorney General) v.

A, 2013 SCC 5, [2013] 1 S.C.R. 61, in which this Court had confirmed that the differential treatmentof de facto and married couples in Quebec family law is consistent with the Canadian Charter. The Court of Appeal was not wrong to point out that, as a

result, a conclusion at this time that there is a great risk that it will not be possible to recognize the Belgian court’s eventual judgment in Quebec is,[translation] “moreover, open to debate” (para. 112). [57] Next, to meet this condition of art. 3137 C.C.Q., the husband simply had to show that it was possible that incorporating the outcome ofthe Belgian decision would not be manifestly inconsistent with international public order. But the trial judge expressed the opinion that “there is a greatrisk” that a Belgian decision confirming the revocation of the gifts would not be recognized in Quebec.

In so doing, she imposed on the husband a moreonerous burden of proof than the one he bore under art. 3137 C.C.Q. He was not required to show that there was little or no risk that the decision would notbe recognized in Quebec; he had to show only that there was a possibility that it would be recognized.

In the context of art. 3155(5) C.C.Q., this means thatthe husband was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with publicorder as understood in international relations. [58] In this regard, it must be borne in mind that, at this time, the outcome of the eventual Belgian decision being considered in the analysisrequired by art. 3137 C.C.Q. is uncertain.

As the Court of Appeal noted, there are a number of factors in support of the possibility that that outcome willnot involve the pure and simple revocation of gifts worth a total of more than $33 million, and therefore that it will not be manifestly inconsistent with thisinternational public order. [59] First, the wife stated that she intended to challenge the constitutionality of art. 1096 of the Belgian Code civil in the Belgian Courconstitutionnelle. Unlike, for example, the It

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