2013 QCCA 1915, 2013 QCCA 1915

Droit de la famille — 133099 2013 QCCA 1915 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023580-137 ( 540-12-017900-127) MINUTES OF THE HEARING DATE: November 7, 2013 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. LORNE GIROUX, J.A. JACQUES DUFRESNE, J.A. APPELLANT ATTORNEY K. T. Mtre Hugo Legris Delahaye Albert Legris Delahaye, société nominale d'avocats RESPONDENT ATTORNEY J. P. Mtre Michèle Tétreault Arnault, Thibault, Cléroux, avocats

On appeal from a judgment rendered on April 9, 2013, by the Honourable Mr. Justice Michel Déziel of the Superior Court, District of Laval. NATURE OF THE APPEAL : Family Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9 h 35 Submissions by Mtre Hugo Legris Delahaye. 9 h 54 Mtre Michèle Tétreault produced her appearance at court. 9 h 54 Submissions by Mtre Michèle Tétreault. 10 h 15 Rebuttal by Mtre Hugo Legris Delahaye 10 h 17 End of arguments. 10 h 17 Suspension. 10 h 29 Resumption. BY THE COURT: Unanimous judgment rendered by the Honourable Allan R. Hilton, J.A. – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT

[ 1 ] K. T. appeals the judgment of the Superior Court rendered on April 9, 2013 by the Hon. Mr. Justice Michel Déziel that dismissed her motion to revoke a judgment of the Superior Court rendered by default on January 29, 2013 by the Hon. Mr. Justice Michel Delorme. The conclusions of the latter judgment were to pronounce the divorce of the parties, to order the dissolution of the parties' matrimonial regime, and to ratify the respondent's renunciation to the division of insurable earnings of the Quebec Pension Plan in accordance with An Act respecting the Quebec Pension Plan , R.S.Q. c.

R-9. [ 2 ] The parties were married in Town A in 1978 under the regime of partnership of acquests. They are the parents of two adult children. Not long after the marriage, the parties moved to Greece, where they remained for several years before returning to Canada. The appellant contends that she moved to Quebec in January of 2010, while the respondent says she did so in 2006, at which time they ceased living together. The respondent followed his wife to Canada in 2011. [ 3 ] The respondent's divorce proceedings sought only the conclusions granted by Delorme, J.

The main difficulty this case raises is the process undertaken to serve the proceedings on the appellant. The respondent claims he had not seen the appellant since November of 2006, while the appellant asserts that she lived with him for four months in Laval in 2011. [ 4 ] A bailiff attempted to serve the appellant at the address supposedly known to the respondent on October 3, 2012, without success. The address in question was that of the appellant's sister. The respondent's counsel accordingly sought and obtained permission to serve the appellant by way of a notice in a newspaper.

The newspaper chosen, however, was a French language one in Laval entitled "24 h", where a notice was published between November 2 and 4, 2012. [ 5 ] The appellant affirmed in her affidavit that accompanied the motion in revocation that she neither speaks nor understands French, a fact that precluded her from ever seeing or understanding the notice in "24 h". [ 6 ] The respondent inscribed for judgment by default on December 4, 2012, which thus led to the judgment of Delorme, J. that she seeks to revoke. [ 7 ] The motions judge who heard the application to receive the motion in revocation was of the view that the requirements of

Article 482 C.C.P . had not been met. He noted that the address at which the bailiff attempted to serve the divorce proceedings was the address at which the appellant ultimately took cognizance of the divorce judgment when it was mailed to her there by the Registry of the Laval Court House. He also concluded that the corollary relief the appellant would have wanted to assert in the context of the divorce proceedings, including a division of the family patrimony and spousal support, was still open to her. [ 8 ] The Court is of the view that the appellant's motion should have been received. [ 9 ] First, the appellant's motion satisfies the requirements of the second paragraph of

article 482 C.C.P. in that it alleges both the grounds of revocation and the grounds of defence to the respondent's proceedings, namely an adjudication of the issues surrounding the division of the family patrimony, the division of the partnership of acquests and her claim for spousal support. In that respect she has alleged facts that if proven are perfectly susceptible of supporting her claim. [ 10 ] The fact that such relief may also be available in a post-divorce environment pursuant to

article 817 C.C.Q . does not make it any less appropriate to assert in the motion for revocation as a ground of defence, especially since the availability of such relief under

article 817 C.C.Q . is discretionary. [ 11 ] The purpose of filtering motions in revocation by the process of reception was well described by this Court in Barabé v. Béliveau ( J.E. 89-984 ): La formalité de la réception permet d'éliminer les requêtes dont le rescindant est manifestement mal fondé parce que tardives, ou parce qu'informes ou futiles à leur face même, tant du côté du rescisoire que du côté du rescindant.

Après sa réception, le requérant devra établir le fondement des allégations visant le rescisoire avant qu'il ne soit statué sur le fond. [Emphasis added] [ 12 ] It cannot be said that the appellant's proceedings are "tardive", "informe" or "futile". On the contrary, they allege serious grounds to obtain the relief she claims. [ 13 ] There remains the issue of ineffective service. [ 14 ] All that can be said is that the respondent's bailiff and or counsel could not have invested much effort in trying to locate the appellant for the purpose of service.

Even if the respondent claims not to have known the current wherabouts of the appellant (where she has been living since January of 2012), the motion in revocation alleges facts that suggest it would have been a simple matter to locate her. [ 15 ] For example, the parties' two adult children live in the same community as the respondent, and they are in communication with both of their parents. It is alleged in paragraph 14 of the motion that one of their children gave the respondent the appellant's address and telephone number.

Even more significant are the allegations in paragraphs 18 and 19 to the effect that the respondent telephoned the appellant in December of 2012 at her residence, and that he actually came to her residence on January 29, 2013, which turned out to be the same day the divorce judgment was rendered. [ 16 ] No legitimate excuse is proffered, save for the bailiff's one ineffective attempt to serve the appellant, to explain why personal service could not have been effected. [ 17 ] Finally, the publication of the notice of service in a French language newspaper when the appellant neither speaks nor

understands French, something that the respondent must have known, is further evidence of a desire to enhance the prospects of proceeding by default and thus place the appellant in the presence of a fait accompli.

The respondent's argument in this Court that the appellant actually understands French, as well as the contestation of the other facts mentioned in paragraph [15] above, rings hollow when it is considered that the allegations in her affidavit in support of the motion in revocation went completely unchallenged in the Superior Court, since she was never examined on her affidavit with a view to establishing the falsity of its contents. [ 18 ] The service of divorce proceedings cannot be taken lightly, given the consequences they entail. Unfortunately, that is what happened in this instance.

FOR THESE REASONS, THE COURT : [ 19 ] ALLOWS the appeal with costs; [ 20 ] REVERSES the judgment of the Superior Court dated April 9, 2013; [ 21 ] RECEIVES the appellant's motion in revocation, with costs to follow suit in the Superior Court. ALLAN R. HILTON, J.A. LORNE GIROUX, J.A. JACQUES DUFRESNE, J.A.