2020 QCCA 71, 2020 QCCA 71

D.C. c. J.Y. 2020 QCCA 71 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027708-189 (760-17-004638-170) DATE: February 4, 2020 CORAM: THE HONOURABLE MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A. D. C. APPELLANT – Defendant v. J. Y.

RESPONDENT – Plaintiff CORRECTED JUDGMENT [ 1 ] Considering the Respondent’s request that paragraph 23 of the judgment of January 17, 2020 which reads as follows: “ ACKNOWLEDGES the appellant’s undertaking to renounce to claim his right of undivided co-ownership of the immovable located at [...] in Town A” be corrected as follows: [23] ACKNOWLEDGES the appellant’s undertaking to renounce to claim his right to title in the immovable located at [...] in Town A such that he will nonetheless retain claim to all other rights associated with ownership, namely financial compensation, as though he remained co-owner of the property until the date of final judgment; [ 2 ] Whereas the reasons of the judgment refer in paragraph 19 to the undertaking given by the appellant at the hearing; [ 3 ] Whereas the conclusions of the judgment should be corrected so that they accurately reflect the content of paragraph 19; [ 4 ] Considering

article 338 of the Code of Civil Procedure ; FOR THESE REASONS, THE COURT: [ 5 ] REPLACES paragraph 23 of the judgment of 17 January 2020 with the following: [23] ACKNOWLEDGES the appellant’s undertaking to renounce to claim his right of undivided co-ownership of the immovable located at [...] in Town A and to limit his representations solely to monetary compensation; MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A. Mtre Paola Tiranardi BARDAGI TIRANARDI For the appellant Mtre Laurence Trépanier-Couture CENTRE COMMUNAUTAIRE JURIDIQUE DE LA RIVE SUD For the respondent Date of hearing: January 14, 2020

D.C. c. J.Y. 2020 QCCA 71 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027708-189 ( 760-17-004638-170 ) MINUTES OF HEARING DATE: January 17, 2020 CORAM: THE HONOURABLE MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A. APPELLANT COUNSEL D. C. Mtre Paola Tiranardi ( Bardagi Tiranardi ) (Absente) RESPONDENT COUNSEL J. Y. Mtre Laurence Trépanier-Couture ( Centre Communautaire juridique de la Rive Sud ) (Absente) On appeal from a judgment rendered on June 15 th 2018 by the Honourable Frédéric Bachand of the Superior Court , District of Beauharnois .

NATURE OF THE APPEAL: Civil procedure - Revocation of Judgment. Clerk at the hearing : Amanda Kaneza Courtroom: Antonio-Lamer HEARING 9:30 Commencement of the hearing. Continuation of the hearing held on January 14 th , 2020. The parties were excused from appearing in Court. BY THE COURT : Judgement see page 3

9:30 Conclusion of the hearing. Amanda Kaneza, Clerk at the hearing JUDGMENT [1] The appellant appeals against a judgement of the Superior Court, District of Beauharnois, (the Honourable Mr. Justice Frédéric Bachand) dated June 15, 2018 that dismissed his application for the revocation of the judgment rendered on June 16, 2017 and corrected on August 8, 2017. [2] The parties lived in a de facto union for nearly 10 years until March 2010.

They have two children, who were 15 and 13 years old when the parties ceased to cohabit. [3] After the breakup, the appellant practically ceased all involvement in raising the children and, after moving to [Province A], he eventually stopped having any contact with the respondent. She was the sole provider for their two children and assumed, alone, the expenses of their home. [4] In 2014, the respondent located the appellant and negotiated an agreement with him dealing with child support and the partition of the home, of which the respondent would purchase the appellant’s share for $10,000.

There was no follow-up to this agreement, for which the parties blame each other. [5] In 2017, the respondent once again, but unsuccessfully, attempted to locate the appellant. The hypothec on their co-owned property was coming due, on March 16, 2017.

The respondent instituted proceedings seeking the repayment of the maintenance and administrative costs for the co-owned property (without specifying the amount); payment of child support from March 1, 2010 until the hearing date (again without specifying the amount); and the set-off of those amounts against the appellant’s share in the co-owned property, which property would be transferred to the respondent, thereby terminating the indivision. [ 6 ] The respondent obtained the court’s authorization to serve the proceedings on the appellant through Facebook.

There was still no answer, such that the matter was heard by default and a judgment was rendered on June 16, 2017 and corrected on August 8, 2017. The judge, in compensation for the reimbursement by the appellant of the expenses for the immovable since March 1 st , 2010, (which were not quantified in the judgment), ordered that the appellant’s share of the immovable be transferred to the respondent.

In addition the judge liquidated at the total sum of $55,843.01 in child support arrears that the appellant owes to the respondent and ordered the appellant to pay to the respondent child support in the amount of $475.50 per month retroactively to January 1, 2017. [ 7 ] The appellant, asserting that he only learned of the judgment in a letter from Revenu Québec dated October 25, 2017 regarding the payment of child support, filed an application for the revocation of the judgment on November 16, 2017 . The parties agreed first to limit the proceedings to the merits of the appellant’s application for revocation.

On June 15, 2018, the Superior Court dismissed that application. [ 8 ] The judge, who began by examining the reason justifying the revocation, as

article 346 of the Code of Civil Procedure requires, concluded that the record showed that the appellant had not been aware of the service, even though it had been carried out in accordance with the court’s authorization. Moreover, the judge concluded that, in the present case, the appellant had not been negligent in failing to see the message received on Facebook. Nonetheless, he found the appellant partially responsible due to his conduct. He wrote: [21] However, there are special circumstances in this case.

As is clear from the record, the reason why the plaintiff was unable to serve her originating application on the defendant personally has to do with the decision he took, in 2010, to essentially abandon his responsibilities towards his family. He did not leave an address when he moved to [Province A] shortly thereafter — the plaintiff even had to hire a private investigator to locate him in 2014 when she initiated the discussions concerning the house —, nor did he provide the plaintiff and their children with his new contact information when he moved back to Montreal in early 2016.

Furthermore, and as I mentioned earlier, the defendant never followed up with the plaintiff after accepting, in 2014, to settle the matter of the transfer of his share in the house for $10,000. He surely understood the plaintiff’s interest in terminating the indivision with respect to the house, and he must have known — or at least should have known — that the issue would resurface one way or another in a near future.

In these circumstances, the defendant must carry at least some responsibility for the fact that he did not become aware of the plaintiff’s lawsuit until after the impugned judgments were rendered. [ 9 ] The trial judge then assessed the grounds of defence the appellant intended to raise on the merits, concluding that prima facie

these grounds did not have a reasonable chance of success. He therefore dismissed the appellant’s application for revocation. * * * [ 10 ] Before this court the appellant raises several grounds of appeal dealing simultaneously with the reason for the revocation and the grounds of defence on the merits. [ 11 ] On the first point, he criticizes the judge for having rejected the substance of the reason for the revocation due to his conduct concerning his family obligations, even though that the judge concluded that the ineffectiveness of the service had not been due to negligence on the part of the appellant.

Similarly, and in particular, the appellant argues that the judgment by default adjudicates beyond the conclusions in the respondent’s pleadings, which, prima facie , seems accurate. [ 12 ] As for the grounds of defence on the merits, before this court the appellant reiterates the points raised in first instance, but also asserts new ones or, at the very least, presents them from a different angle. [ 13 ] Contrary to what the respondent claims, the appellant is not raising new facts or seeking permission to adduce fresh evidence. He is merely raising new legal arguments, based on the record as constituted.

Given that these arguments would not have led to additional evidence from the respondent had it been raised in first instance, in accordance with the jurisprudence of this court, [1] it can be seized thereof now. [ 14 ] The appellant argues that the sums paid by the respondent as expenses for the immovable prior to March 16, 2014 are prescribed. The respondent replies that the 2014 agreement that was not finalized interrupted prescription. All of this remains to be seen, but the appellant’s ground of defence is not one of those that has no reasonable chance of success.

The same is true as regards the child support and the application of former

article 595 C.C.Q. for the period prior to June 15, 2012. [2] These grounds of defence may have more than a significant impact on the amount that could be owed by the appellant. [ 15 ] This new perspective on the merits of the case, which the trial judge did not have, at least not in these terms, has a significant impact on the balance the Court must strike between, on the one hand, the principle of the finality of judgments, which is required for the sound administration of justice and the stability of legal relationships and, on the other hand, the right to be heard and present a full defence. [ 16 ] The balance the Court must strike between these competing principles explains the two components required for the power to revoke to be exercised, namely, the justification for the revocation and the grounds of defence.

It also explains why these two components are often interconnected, as this Court stated in Groupe JSV : [3] [30] En matière de rétractation de jugement pour cause de « surprise ou autre cause jugée suffisante » ( C.p.c., art. 482), le rescindant (les « motifs qui justifient la rétractation ») et le rescisoire (« les moyens de défense à l’action ») sont des vases communicants.

Plus les moyens de défense sont sérieux, plus sont vraisemblables et recevables les motifs du défendeur pour expliquer que son défaut est dû à la surprise, à l’oubli, à l’inadvertance, à la méprise, à une erreur, peut-être même stupide, mais sincère. [ 17 ] Thus, neither the quality of the reasons for revocation nor the quality of the grounds of defence on the merits is generally sufficient to justify the revocation of a judgment. It is all a matter of balance.

In fact, this is the exercise the trial judge rightly carried out in his analysis [4] . [ 18 ] Without having to opine on the judge’s remarks regarding the reason for the revocation and more particularly on the responsibility imposed on the appellant, the Court is convinced, in the present case, based on all of the circumstances and, in particular, on the judge’s conclusion that the appellant’s failure to read the Facebook message was not negligent, that the grounds of defence on the merits as presented before it justify giving priority to the appellant’s right to be heard over the finality of the judgment rendered by default and justify granting the application for revocation.

That is particularly true considering that the conclusion of the judgment rendered by default exceed significantly the conclusions searched by the originating demand. [ 19 ] In addition the Court mentions that the appellant indicated at the hearing that the intention of his appeal is not to contest the fact that the respondent is now the sole owner of the immovable, but to have the possibility to debate the amounts the parties owe each other.

Therefore, in the case where his appeal should be granted by the Court, he will renounce his co-ownership share in the immovable located at [...] in Town A, and will limit himself to a monetary compensation. The Court will acknowledge his undertaking in its conclusions.

FOR THESE REASONS, THE COURT: [ 20 ] ALLOWS the appeal; [ 21 ] REVERSES the judgment under appeal; [ 22 ] GRANTS the application for revocation; [ 23 ] ACKNOWLEDGES the appellant’s undertaking to renounce to claim his right of undivided co-ownership of the immovable located at […] in Town A; [ 24 ] REFERS the case back to the court of first instance so it can proceed anew on the original application; [ 25 ] Without legal costs, given the circumstances.

MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A.