2019 QCCA 1366, 2019 QCCA 1366

Droit de la famille — 191637 2019 QCCA 1366 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028174-191 (500-12-342007-196) MINUTES OF THE HEARING DATE: August 6, 2019 CORAM: THE HONOURABLE ROBERT M. MAINVILLE , J.A. PATRICK HEALY , J.A. LUCIE FOURNIER , J.A. APPELLANTS COUNSEL L. R. H. B. Mtre DANIELLE OIKNINE (Oiknine & Associé

s) RESPONDENT COUNSEL d. l. Mtre muriel librati (Teitelbaum Librati) On appeal from a judgment rendered on March 4, 2019 by the Honourable Justice François P. Duprat of the Superior Court, District of Montreal. De bene esse Application for leave to appeal .

DESCRIPTION : Divorce – Provisional measures – Proof of marriage. Clerk: Stephane Robinson Courtroom: Pierre-Basile-Mignault HEARING 9:31 Commencement of the hearing. Identification of counsel. Recess. 11:25 Resumption of the hearing. 11:25 Submissions by Mtre Oiknine. 11:25 Justice Mainville J.A., asks Counsel whether the individuals in attendance are linked to the file and whether Counsel objects to their presence at the hearing.

Counsel informs the Court that the individuals are linked to the file and Counsel does not object to their presence at the hearing. 11:30 Mtre Oiknine files an exhibit to the Court. 11:38 Submissions by Mtre Librati. 12:04 Rebuttal by Mtre Oiknine. 12:09 Recess. 12:14 Resumption of the hearing. 12:15 BY THE COURT : Unanimous judgment rendered forthwith by the Honourable Robert M. Mainville, J.A., for which the reasons will be inserted in the minutes of the hearing – see page 3. 12:16 Conclusion of the hearing. Stephane Robinson Clerk BY THE COURT JUDGMENT [ 1 ] Appellant L.

R., who is 35 years old, and the respondent, aged 23, are both members of an orthodox Jewish community. They were in a relationship for approximately three years, though they never cohabitated. The parties planned to marry. According to the appellant, the marriage was never concluded, while the respondent submits it was celebrated, but had a short duration of 10 days without cohabitation. * * * * * [ 2 ] In her divorce proceedings dated February 5, 2019, the respondent asserts that the marriage was celebrated in a civil ceremony held before a notary on June 1, 2018.

This was allegedly followed by a religious ceremony celebrated on June 10, 2018 before a rabbi. A dispute broke out between the parties and their families at the reception following the religious ceremony. In light of this dispute, the respondent ended the marriage the next day, June 11, 2018, by asking the appellant to consent to a religious divorce, which he allegedly refused. [ 3 ] The respondent thus seeks a civil divorce as well as an order under s. 21.1 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) with

respect to a religious divorce. She also seeks the division of the family patrimony, the dissolution of the matrimonial regime, spousalsupport of $1,500 a month and a provision for costs of $20,000. She further seeks the transfer of a 50% interest in an immovable bearingcivic address [...] in Town A, under a Contract of a Promise of a Gift made by the appellant and enforceable upon the marriage of theparties. * * * * * [4] A hearing on interim measures was held before the Superior Court on March 4, 2019. The appellant sought to postpone thishearing, but the judge refused.

The appellant then made an application to dismiss the proceedings pursuant to art. 168 of the Code ofCivil Procedure (“CCP”) on the ground that no marriage had been concluded and that consequently the Superior Court was withoutjurisdiction. [5] The Superior Court judge refused to grant the dismissal.

He was of the view that the allegations in the respondent’s proceedingswere sufficient to conclude that a marriage had taken place for the purposes of issuing interim orders under the Divorce Act, while notingthat the issue of the existence of the marriage could be debated and decided at a later date. [6] The judge then ordered the appellant to pay to the respondent interim spousal support of $1,500 a month and a provision forcosts of $5,000.

He also set the date of August 8, 2019 for a hearing under s. 21.1 of the Divorce Act. * * * * * [7] The appellant appeals the judgment as of right and also makes an application de bene esse for leave to appeal. [8] The judgment dismissing an application to dismiss a proceeding pursuant to

article 168 CCP is clearly a judgment rendered inthe course of a proceeding. The judgment on interim measures is also rendered in the course of the proceedings. Leave to appeal istherefore required pursuant to

article 31 CCP: Droit de la famille – 121718, 2012 QCCA 1229; Droit de la famille – 18123, 2018 QCCA115. [9] Since the appeal raises a serious question with respect to the jurisdiction of the Superior Court, leave is granted: Procureurgeneral de Terre-Neuve et Labrador c. Uashaunnuat (Innus de Uashat the de Mani-Utenam), 2017 QCCA 14, para. 16 (Marcotte, J.A.);Gentra Canada Investments Inc. v.

Pearl, (QC CA), [1996] R.D.J. 427 (C.A.), para. 2 (Deschamps, J.A.). * * * * * [10] Though the appellant raises various grounds of appeal based on procedural fairness, his principal submission is that the judgeerred in law in that he had no jurisdiction to order interim spousal support and to set a date for a hearing under s. 21.1 of the Divorce Actbefore conclusively determining whether the parties were actually legally married. In the absence of

an act of marriage, the judge shouldhave concluded that there was no evidence of a marriage and should have therefore dismissed the divorce proceedings. He submits thatthis is a core question of jurisdiction. [11] The respondent recognizes that the existence and validity of the marriage is a core issue of jurisdiction. She, however, submitsthat this jurisdictional issue can be resolved later on the merits of the divorce proceedings.

She recognizes that no act of marriage wasdrawn-up, but she asserts that this is the result of a stratagem between the appellant and the notary who celebrated the marriage in orderto deprive her of its benefits. She submits that her allegations that a marriage was concluded before the notary and was followed by areligious ceremony are sufficient to confer upon the Superior Court jurisdiction to issue interim orders under the Divorce Act and to holda hearing under s. 21.1, notwithstanding the absence of

an act of marriage and the fact that the very existence of the marriage has yet tobe conclusively determined. * * * * * [12] Since marriage carries with it important legal consequences, the Civil Code of Quebec (“CCQ”) sets out specific formalities forits conclusion: arts. 365 to 377 CCQ. It also requires proof that these formalities have been complied with. The CCQ provides that suchproof is through

an act of marriage, which is a document registered shortly after the celebration of the marriage based on a declarationmade to the registrar of civil status by the officiant of the marriage: arts. 118-121 and 378-379 CCQ. [13] Michel Tétrault, in his work Droit de la famille, volume 1, Éditions Yvon Blais, 2010, pp. 104-105 emphasizes the importance ofthe act of marriage for the purposes of proving the existence of a marriage: 3.7.4 La preuve du mariage L’inscription du mariage sans délai suivant sa célébration, dans les registres de l’état civil, est une condition de forme essentielle pourprouver l’existence du mariage (art. 109, 110, 118, 130 et 131 C.c.Q.).

La seule preuve admise est la production de l’acte de mariage (art.378 C.c.Q.) et nul ne peut réclamer le

titre d’époux et les effets civils du mariage à moins de produire un tel acte ou, à

titre exceptionnel,de prouver le mariage conformément à l’article 143 C.c.Q. (le cas de l’acte perdu ou détruit). Le législateur exclut ainsi la preuve par lapossession d’état et empêche toute fabrication de preuve. À

titre d’exemples, les personnes vivant en union libre publiquement commemari et femme en portant le

titre d’époux et affichant l’apparence d’un mariage ne peuvent prétendre être mariées sans produire un actede mariage.

Le directeur de l’état civil mentionne le mariage dans l’acte de naissance de chacun des époux (art. 134 C.c.Q.). Toutefois, la possession d’état d’époux peut suppléer aux défauts de l’acte de mariage. Elle permet de le corriger, sur requête ou surdemande adressée au directeur de l’état civil lorsqu’il s’agit d’une erreur d’écriture, sans qu’on puisse mettre en doute la validité dumariage (art. 142 et 379 C.c.Q. et 864 C.p.c.). Elle peut servir à faire rectifier l’indication de date erronée, la signature de l’acte demariage de l’épouse sous le nom de son mari, les erreurs d’écriture (Sylvin au lieu de Sylvain) ou l’absence de signature de l’un des

témoins mentionnés à l’acte. En résumé, le mariage s’établit par la présentation de l’acte de mariage ( art. 118 à 121 , 375 et 378 C.c.Q. ). Le Code civil prévoit d’autres modes de preuve du mariage pour des circonstances particulières ( art. 139 et 379 C.c.Q. ). Si la possession d’état peut suppléer aux défauts de forme de l’acte de mariage, il ne saurait faire la preuve du mariage ( art. 379 C.c.Q. ). (Emphasis added) [ 14 ] Jean Pineau and Marie Pratte take the same view in La famille , Éditions Thémis, 2006, at paras. 72-75 (pp. 95-97).

They note that “ [l]a seule preuve possible sera la représentation d’un acte de mariage inscrit dans le registre de l’état civil ”. They also recognize some exceptions to this rule, but none would apply to the circumstances at hand. [ 15 ] The few decisions of the Superior Court on the issue take a similar stand: Droit de la famille – 162255 , 2016 QCCS 4242 ; Houle c. Directeur de l’état civil , 2014 QCCA 658 ; Droit de la famille – 1312 , 2013 QCCS 67 ; Droit de la famille – 093038 , 2009 QCCS 5794 . [ 16 ] The law provides remedies where a marriage celebrated in Quebec must be proved and

an act of marriage has not been inserted in the registry of civil status.

Article 130 CCQ empowers the Quebec registrar of civil status to make a

summary investigation, draw up the act of marriage on the basis of the information he obtains and insert it in the register.

Article 141 CCQ further empowers the Superior Court to order the insertion of

an act of marriage in the register. * * * * * [ 17 ] In the case at hand, the respondent claims to have entered into a marriage celebrated in Quebec which lasted 10 days without cohabitation, while the appellant denies that a marriage was contracted.

No act of marriage was produced by the respondent, nor is it likely that she will produce one shortly. [ 18 ] Since the Superior Court has no jurisdiction to issue orders under the Divorce Act unless the parties are married to each other, a judge seized of divorce proceedings must act prudently in a situation where no act of marriage is produced and where the very existence of the marriage is challenged by one of the parties. [ 19 ] Without foreclosing, in such circumstances, the powers of the Superior Court to issue interim orders under its inherent or general powers to issue protection and safeguard orders where exceptional or urgent circumstances warrant (art. 49 CCP ), the prudent course of action is to abstain from issuing orders under the Divorce Act or otherwise until such time as the existence of the marriage has been established and

an act of marriage has been produced or is ordered to be inserted in the register of civil status. [ 20 ] In this case, there are no exceptional or urgent circumstances which warrant protective or safeguard measures before the very existence of the marriage has been proven and the jurisdiction of the Superior Court under the Divorce Act has thus been confirmed. [ 21 ] The parties never cohabited prior to or during the extremely brief alleged marriage.

There is no evidence before us that the appellant provided any financial support to the respondent prior to the marriage, nor that the respondent’s financial situation is worse now than before the marriage. The exceedingly short duration of the marriage (a factor which would be taken into account pursuant to s. 15.2(4) (

a) of the Divorce Act should that act apply), also weighs strongly against interim spousal support in this case prior to the very existence of the marriage having been proven. [ 22 ] With regard to

section 21.1 of the Divorce Act , it is a prerequisite to its use that the parties be married. The absence of

an act of marriage and the assertion by the appellant that no marriage, civil or religious, was concluded, renders its use problematic before the marriage has been conclusively proven. In the peculiar and exceptional circumstances of this case, the issue of the very existence of the marriage should be the first issue to be resolved since it goes to the very jurisdiction of the Superior Court under the Divorce Act . The trial judge should thus have ordered that a hearing on this issue be held prior to or concurrently with a hearing under

section 21.1 of the Divorce Act . FOR THESE REASONS, THE COURT: [ 23 ] GRANTS the application for leave to appeal and AUTHORIZES the appeal of the judgment dated March 4, 2019 rendered by the Superior Court, District of Montreal; [ 24 ] ALLOWS the appeal in part only; [ 25 ] SETS ASIDE the judgment rendered March 4, 2019; [ 26 ] ORDERS that the hearing before the Superior Court on August 8, 2019 proceed on that date for the purpose of first determining the existence of the marriage and the constitution of

an act of marriage and, in the event the marriage is so proven, that the proceedings then continue to consider the application of

section 21.1 of the Divorce Act . [ 27 ] THE WHOLE without costs, in light of the nature of the proceedings. ROBERT M. MAINVILLE, J .A.

PATRICK HEALY, J.A. LUCIE FOURNIER, J.A.