2017 QCCA 376, 2017 QCCA 376

Droit de la famille — 17428 2017 QCCA 376 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025654-153 (500-12-321947-149) DATE: MARCH 8, 2017 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. R. J. APPELLANT - defendant v. L. A.

RESPONDENT - plaintiff JUDGMENT [ 1 ] The appellant appeals as of right from that part of the judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Karen Kear-Jodoin) rendered on September 21, 2015 that declined to receive the conclusions of his motion in revocation of judgment by which he sought the revocation of the conclusions of a judgment of the Superior Court rendered by default (the Honourable Madam Justice Eva Petras) on October 23, 2014 pronouncing the divorce of the parties and issuing various corollary relief orders. [ 2 ] For the reasons of Hilton, J.A., with which Rochette and Pelletier, JJ.A, agree, THE COURT : [ 3 ] QUASHES the appeal inscribed as of right; [ 4 ] GRANTS leave to appeal nunc pro tunc ; [ 5 ] ALLOWS the appeal; [ 6 ] SETS ASIDE the judgment of the Superior Court in part; [ 7 ] RECEIVES the conclusions of the appellant’s motion in revocation that the judgment appealed from refused to receive; [ 8 ] ORDERS the file to be returned to the Superior Court for the adjudication of the recissory grounds in the appellant’s motion in revocation of judgment.

LOUIS ROCHETTE, J.A. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. Mtre Antoine Motulsky Falardeau Mtre Thomas Dougherty Motulsky avocats For the appellant Mtre Christian Dufourd Dufourd Dion, avocats inc.

For the respondent Date of hearing: February 9, 2017 REASONS OF HILTON, J.A. [ 9 ] It is not uncommon for divorce proceedings to proceed by default in Quebec.

The perils of doing so when a petitioner fails to take any means to locate the respondent to be served with the petition, despite the fact that they are both represented by counsel in parallel divorce proceedings in a foreign country, are on full display in this case. [ 10 ] The appeal raises three issues arising out of a judgment that granted in part only a motion to revoke a default judgment divorcing the appellant from the respondent and specifying various corollary relief orders. They are: first, whether the appellant R. J. was entitled to inscribe his appeal as of right under

article 26 of the Code of Civil Procedure that was in force when the judgment appealed from was rendered on September 21, 2015; [1] second, if not, whether the Court should grant leave nunc pro tunc ; and, third, whether the trial judge erred by failing to receive all of the appellant’s revocatory grounds [2] that he asserted in his motion. 1. The relevant facts [ 11 ] The parties are of Syrian origin and were married there in 2005. A. Proceedings in Syria and Lebanon [ 12 ] Three minor children were born of the marriage, a son in 2006 and twin daughters in 2011.

The children and their mother are also all Canadian citizens. [ 13 ] In May of 2011, the parties separated. The respondent L. A. and the three chil-dren moved in with her parents. She then began divorce proceedings in Syria on August 21. Later that year, the appellant obtained an order from a Syrian judge preventing the children from leaving Syria.

Nevertheless, the respondent attempted to leave Syria with the children in September, but she was prevented from doing so at the border. [ 14 ] It is at this point that the parties’ respective accounts of events begins to diverge. [ 15 ] According to the appellant, the respondent initiated a second attempt to leave Syria later that month via Lebanon, and eventually made her way to Town A with the children as the result of having obtained what he characterizes as a fraudulent Lebanese judgment.

He therefore initiated proceedings in Syria seeking the cancellation of the custody order the respondent had obtained with respect to the children, along with an order that the twin girls be returned to him. [ 16 ] The respondent has a completely different account of events. [ 17 ] She contends that she brought the three children with her to Lebanon as of June 8, 2012 with the intention of reaching Canada as soon as possible.

Nevertheless, she says her husband kidnapped their son X on August 31 that year notwithstanding a Lebanese judgment granting her custody of the three children and authorizing her to travel with them. On September 8 she and her twin daughters left for Canada, as did her parents. [ 18 ] A further order of a Syrian court on October 9 that year provided that the parties’ son would thereafter live with his paternal grandmother in Damascus. [ 19 ] The Syrian divorce proceedings followed their course despite the respondent’s absence from the country.

She continued to be represented by an attorney and asserted a claim in the proceedings that was sworn to at the Syrian Embassy in Washington. A judgment divorcing the parties was eventually rendered in Syria on May 14, 2014.

It mentioned her claims for spousal and child support, but did not give effect to them in view of their having been discontinued. [ 20 ] Finally in Syria, according to the appellant, a criminal court in Damascus found the respondent and her parents guilty of what appears to be the offence of having unlawfully taken custody of a minor child, and sentenced them to a term of imprisonment. [ 21 ] While all this was going on, the respondent brought proceedings in Lebanon seeking an order that the appellant be condemned to pay her an alimentary pension for her and the twins, along with a provisional order for their custody.

Judgment was initially rendered in her favour, but it was reversed on December 10, 2012. [ 22 ] The respondent also brought proceedings in Lebanon seeking to have the appellant declared guilty of kidnapping their son. It is unnecessary to go into detail about them since initial orders rendered in her favour were all eventually annulled, the last of which having been issued on April 4, 2015. B. Proceedings in Quebec [ 23 ] For most of the time that proceedings were following their course in Syria and Lebanon, the respondent was pursuing separate matrimonial proceedings by default against the appellant in Quebec. (

i) The separation proceedings

[ 24 ] The first of these was a motion in separation from bed and board the respondent undertook on October 23, 2012. In it she asserted that divorce proceedings between the parties that were underway in Syria had been suspended due to the armed conflict in that country. She further alleged that the appellant had kidnapped their son in Lebanon and had brought him to Syria. She also subscribed an affidavit in support of a motion for special mode of service in which she asserted that she did not know the whereabouts of the appellant.

Service of the motion was accordingly effected by the publication of a notice in Metro, a Montreal newspaper. [3] As one might expect, the appellant, who was still residing in Syria, did not appear to contest the motion. [ 25 ] Reimnitz, J. issued a safeguard order on November 8, 2012.

Amongst other conclusions, he granted the respondent provisional custody of the three children, declared that the domicile of the parties’ son was Town A, and ordered the appellant to return their son to the respondent. [ 26 ] A further safeguard order was issued in the separation proceedings by Brossard, J. on March 19, 2013 specifying the dates of birth of the three children in order to facilitate the recognition of the judgment of Reimnitz, J. in Syria.

The judgment further ordered the appellant to pay specified sums of spousal and child support. [ 27 ] Brossard, J. then rendered a default judgment on June 25, 2013 granting the respondent’s motion in separation of bed and board, fixing the appellant’s annual income at $400,000, ordering him to pay child support for the twin girls and reserving her right to claim for child support for the parties’ son, and further ordering him to pay two lump sum payments of $144,000 no later than 60 days from the date of his judgment. [ 28 ] On July 10, 2013, the appellant wrote to Reimnitz, J.

He had learned of the existence of his judgment because it had been filed in the court record of the Lebanese proceedings. Evidently, he was unaware of the two judgments that Brossard, J. had subsequently rendered on March 19 and June 25, 2013. In his letter to Reimnitz, J., the appellant disclaimed any knowledge of the proceedings that had led to the safeguard order that judge had issued on November 8, 2012.

He further specified both a personal and residential address in Syria at which he could be reached, along with an email address. [ 29 ] I note that the judgment under appeal adjudicates the reception of the appellant’s motion to revoke the two judgments of Brossard, J. rendered in the separation proceedings. The conclusions of the judgment appealed from in such proceedings are not the subject of the appeal before the Court. (ii) The divorce proceedings [ 30 ] The respondent initiated divorce proceedings in Montreal on April 8, 2014.

Once again, she disclaimed knowledge of the whereabouts of the appellant by affirming that he lived at “an unknown address”. She subscribed an affidavit in support of her motion for a special mode of service solemnly affirming that she had “lost all contacts with the Defendant since June 2012 and is unaware of his place of residence”, thus again obtaining leave to have him served by the publication of a notice in the Metro newspaper, which she did on April 10. [ 31 ] These allegations, without more, should not have led to the order for substituted service the respondent obtained.

Indeed, this Court has recently criticized a laissez-faire approach to granting such motions when in Zhang v. Jian , [4] it endorsed a comment of Taschereau, J. in L.R.J.I. v.

A.T.U [5] to the effect that alleging that a party has not heard from someone who it wishes to serve and that it is unaware of that person’s residential address does not mean that the party cannot locate the person being sought by undertaking concrete initiatives. [ 32 ] It is also interesting to note that under the heading “Other proceedings” in her petition for divorce, the respondent mentioned her motion for separation from bed and board in the Superior Court, but not the divorce proceedings she initiated in Syria on August 21, 2011. [ 33 ] The matter proceeded by default before Petras, J. on October 20, 2014.

During the respondent’s brief testimony, [6] neither her counsel nor the judge asked any questions with respect to the allegation in her divorce petition that the appellant “presently resides at an unknown address”. [ 34 ] Nevertheless, by the time of the hearing before Petras, J., the Syrian court had already divorced the parties by judgment rendered some four months earlier on May 14 that year, which evidently was not brought to the attention of Petras, J.

The conclusions of the default judgment she rendered on October 23, 2014, which was prepared at her request by respondent’s counsel, provides as follows: PRONOUNCES a judgment of divorce between the parties, whose marriage was solemnized on April 12, 2005, in the City (of) Damascus, Syria, which will come in force on the thirty-first day following the date of the present judgment; GRANTS Applicant legal custody of the minor children, X, Y and Z; PERMITS Applicant to travel with the children, X, Y and Z outside the Province of Quebec, without Defendant’s consent; PERMITS Applicant to obtain the passports for the children, X, Y and Z, without Defendant’s signature and additional renewals; DECLARES that Defendant’s annual income to be used to determine the amount of child support order is $ 400,000; ORDERS Defendant to pay to Applicant child support of $ 5161.17 per month […]; ORDERS the child, X to be brought to Applicant and that Applicant receives the necessary help from the police forces to bring back the parties’ son, X; RESERVES Applicant’s right to seek child support for the parties’ son, X, born on September 13, 2006 in the city of Damascus, Syria;

ORDERS Defendant to pay spousal support to Applicant of $ 12,000.00 per month […]; DECLARES that the following assets are part of the assets to be divided under the law in force in Syria at the time of the parties’ marriage, namely: - three cars, a BMW 2011, BMW 2007 and VOLKSWAGEN 2005; - an irrigated plot of land in the area of Najha; - an apartment located in the arena of Sharkasieh; - a shed on the ground floor at Al-Thawrah; ORDERS the division of the said assets in accordance with the law in force in Syria at the time of the parties’ marriage; ORDERS Defendant to pay Applicant the dowry in the amount of (2000.000 Syrian Pounds); ORDERS that there shall be no partition of earnings registered under the Quebec Pension Plan between the parties; THE WHOLE , without costs. [7] 2.

The revocation proceedings [ 35 ] It is not disputed that on June 23, 2015, the appellant became aware of the default judgment of divorce, some eight months after Petras, J. had rendered it. The revocation proceedings with which the Superior Court was seized is dated July 2, 2015, well within the 15- day time limit contemplated by art. 484 C.C.P . then in force. [ 36 ] In his motion, the appellant alleged that until June 23, 2015, the only divorce proceedings of which he was aware were those the respondent undertook in Damascus, Syria on August 21, 2011.

It was further alleged that the respondent was represented by counsel in those proceedings and that her counsel had most recently pleaded in the Syrian court on her behalf on June 6, 2015. [ 37 ] Moreover, he had maintained the same residence in Syria since the parties’ marriage in 2005.

He also produced as an exhibit two text messages the respondent sent him in Syria dated February 9 and December 1, 2013, thus showing that when she initiated the Quebec divorce proceedings in April of 2014 she knew perfectly well how to reach him if she was so inclined. [ 38 ] The rescissory grounds [8] assert essentially that Syria is the appropriate forum for the determination of the rights of the parties, especially in light of the proceedings the respondent initiated in that country on August 21, 2011. 3.

The judgment under appeal [ 39 ] The motion judge was right to conclude that the appellant had alleged sufficient revocatory grounds to have the proceedings received. She noted in particular his allegations that the respondent always knew how to reach him, and that by effecting service by means of the publication of a notice in a Montreal newspaper, her desire to conceal the proceedings from him was established, thus ensuring he would have no knowledge of the financial claims against him.

He had further alleged in his motion to revoke the judgment of Brossard, J., which the motion judge also heard and is adjudicated in the judgment under appeal, that he only became aware of the judgment in the separation proceedings when his bank accounts in Paris were seized with a view to satisfying the financial conclusions of that judgment. [ 40 ] The appellant had therefore succeeded in establishing a prima facie cause of revocation. [ 41 ] In the divorce file, however, the motion judge only received and thus suspended the operation of the conclusions in the judgment of Petras, J. dealing with child support and spousal support, thus leaving in place the conclusions divorcing the parties, granting the respondent custody of the minor children, authorizing her to travel outside Quebec with the three children of the marriage without the appellant’s consent, and permitting her to obtain a passport for them as well as their renewals without having obtained the respondent’s signature. [ 42 ] In support of her decision to receive the motion in revocation in

part in the manner she did, the motion judge relied on the judgment of Claude Bouchard, J. in Droit de la famille – 08263 , a judgment in which he held that when a motion in revocation of a judgment divorcing the parties was received, it did not have the effect of suspending the conclusion dissolving the matrimonial relationship. [9] 4. Questions in dispute [ 43 ] The appellant has raised only one issue – whether the motion judge should have received the motion to revoke the judgment of divorce in its entirety rather than limiting it to the corollary relief conclusions.

Prior to the hearing, however, the Court advised counsel of two additional issues that warranted examination: first, whether the judgment under appeal gave rise to an appeal as of right, and second, if not, whether the Court should grant leave nunc pro tunc . 5. Analysis and discussion

(1) Is the appeal one that can be inscribed as of right? [ 44 ] At the hearing, counsel for the appellant explained that he considered the judgment of the motion judge to have been final to the extent that she did not receive all of the conclusions of the judgment of Petras, J. He acknowledged, however, that the judgment did receive part of the conclusions, and that to that extent, it was more in the nature of a judgment that decided the issues in part, since those

that had been received would become subject to the adjudication of the rescissory grounds in the motion. [45] Manifestly, the judgment under appeal is not a “final” one, as art. 26(1) C.C.P. requires for there to be an appeal as of right.

Thejudgment does not dismiss the reception of the revocation proceedings – it does so only in part and thus contemplates the continuation ofproceedings to adjudicate the rescissory grounds alleged for those conclusions of the default divorce judgment the motion judge did notexclude. [46] A judgment dismissing the reception in its entirety would have been final, but not one dismissing it in part. To that extent, thejudgment under review is one that, pursuant to art. 29(1) C.C.P. “…in part decides the issues/…decide en

partie du litige.” [47] Accordingly, the appellant did not enjoy an appeal as of right and leave from a judge of this Court had to have been obtained bya motion to that effect within 30 days of the judgment under appeal, or failing that, a motion to the Court pursuant to art. 523 C.C.P.provided that “more than six months have not elapsed since the judgment/pourvu qu’il ne se soit pas écoulé plus de six mois depuis lejugement”. As we know, the appellant did not present and obtained such an order under either art. 29(1) or art. 523 C.C.P. [48] For that reason, the appeal is improperly before the Court.

That being said, I appreciate that the appellant’s counsel’s error wasone made in good faith, and that his

interpretation of his client’s right of access to the Court of Appeal was not the result of carelessnessor a lack of consideration. [49] Nevertheless, I would quash the appeal inscribed as of right, and next consider whether the Court should hear it on its merits.

(2) Should the Court grant leave to appeal nunc pro tunc? [50] Granting leave nunc pro tunc has developed as a means to overcome the failure to respect the outside time limit of six months toseek leave to appeal under art. 523 C.C.P.

It is seen in circumstances such as those present in this case, but has also been used, albeitmore rarely, when a judge in chambers grants leave on a matter over which the judge has no jurisdiction. [51] Generally speaking, the Court will consider granting leave nunc pro tunc if an appellant: (1) has clearly demonstrated anintention to appeal within the prescribed time limits; (2) the opposing party has not invoked the irregularity of the appeal and will sufferno prejudice by such leave being granted; (3) the appeal is not on its face dilatory or frivolous, and raises questions of general interest. [52] An excellent illustration of the application of this mechanism can be seen in the recent judgment of the Court in ConstructionSteco inc. v.

Gestion Michel Bélanger inc.[10] in which Dalphond, J.A. observed the following on behalf of the Court: [19] Dans cet arrêt, au nom d'une formation unanime, mon collègue le juge Rochon, en présence d'un appel irrégulièrement formé etaprès avoir signalé l'absence de compétence qui en découle, énonce, en s'inspirant de certains arrêts de la Cour suprême du Canada, unremède prétorien permettant de régulariser la situation. Il écrit : o [24] En l'espèce, il y a lieu de considérer l'inscription en appel comme une demande de permission de faire appel.

Puis, m'inspirant dela mécanique suivie par la Cour suprême dans l'affaire Kinkel c. Hyman, (SCC), [1939] S.C.R. 364, j'examinel'opportunité d'accorder cette permission d'appel "nunc pro tunc". o [25] Le litige entre les parties a trait à l'exercice par une corporation municipale de son pouvoir d'expropriation. La lecture del'inscription en appel me convainc de l'intérêt judiciaire pour notre Cour de se saisir de ce débat afin de mieux cerner les balisesjuridiques entre l'expropriation et le droit de propriété des intimés. Les intimés n'ont jamais prétendu au caractère frivole ou dilatoire del'appel.

Leur requête en rejet ne contient d'ailleurs aucune allégation en ce sens. Les intimés ne plaident pas non plus que le dossier estsans intérêt. La participation active des intimés tout au long du processus d'appel et à l'audience fait preuve, si besoin était, qu'il s'agitd'une affaire méritant l'attention de la Cour. o [note omise] [20] En somme, lorsqu'une

partie procède par inscription en appel dans le délai applicable (manifestation claire de l'intention de sepourvoir), alors qu'elle devait plutôt solliciter une permission d'appeler, et que l'autre

partie ne soulève pas sans délai l'irrégularité du pourvoi, la Cour peut, afin de sauvegarder les droits de la "partie appelante" et sans causer un véritable préjudice à la

partie adverse3,considérer l'inscription de facto comme une requête pour permission d'appeler, puis décider s'il s'agit d'un cas où une permissionmériterait d'être accordée. [21] Cette solution, inspirée par un désir de faire prévaloir la préservation des droits du client qui s'est fié à son avocat sur uneapplication rigide des règles de procédures au détriment de la justice et de l'équité, m'apparaît juste et conforme aux pouvoirs conférés àla Cour par l'art. 46 C.p.c.

Il n'est pas surprenant qu'elle ait été depuis reprise par la Cour, notamment dans les arrêts Laferrière c.Commission de protection du territoire agricole, 2007 QCCA 174, Purjinje inc. c. Famic Technologie inc., 2009 QCCA 549, ArsèneCharlebois Construction ltée c. Centre social Kogaluk, 2012 QCCA 1851. [53] These criteria are satisfied in this case.

Clearly, the appellant’s counsel was mistaken in good faith as to the existence of anappeal as of right, the respondent’s counsel never invoked the irregularity of the appeal, and as we will see in the paragraphs that follow,the judgment under appeal raises serious issues relating to the recourse of revocation in a case where a judgment on the merits has beenrendered by default.

(3) Should the motion judge have received the motion in revocation in respect of all of the conclusions in the judgment ofdivorce rendered by default? [54] To begin, and contrary to the appellant’s position in this respect, the present matter falls to be determined under the provisionsof the Code of Civil Procedure dealing with revocation that were in force when the judgment of the Superior Court was rendered onSeptember 21, 2015, which means that those of the Code of Civil Procedure that came into force on January 1, 2016 are inapplicable.

This conclusion is consistent with the opinion of Guy Gagnon, J.A. on behalf of the Court in Hôpital Maisonneuve Rosemont v. Buesco Construction [11] in which he wrote the following: [252] Le droit transitoire élaboré dans le nouveau Code tient sur quatre articles (833 à 836 n. C.p.c.). Son

article 833 prévoit notamment : "Ce code est, dès son entrée en vigueur, d'application immédiate". Certains pourraient être tentés d'y voir là une règle applicable aux situations pendantes devant notre Cour, même si les procédures d'appel ont été lancées avant le 1er janvier 2016. [253] J'estime que rien dans le n.

C.p.c. ne laissent entendre que ses dispositions ont une portée rétroactive même à l'égard d'un jugement de première instance rendu avant le 1er janvier 2016 qui, à défaut d'être définitif, n'en est pas moins final. [254] En somme, les règles usuelles en matière d'interprétation s'appliquent ici comme pour les autres lois. Celles-ci prévoient notamment qu'à moins d'une disposition expresse démontrant clairement une intention du législateur à l'effet contraire, les nouvelles lois ne devraient pas avoir de portée rétroactive (référence omise).

Conséquemment, même si les dépens ne sont dus qu'au moment du jugement définitif, il demeure que leur détermination doit se faire selon ce qui aurait dû être ordonné au moment du prononcé du jugement final, et ce, tel que le droit existait alors. [ 55 ] Next, I reject the appellant’s submission that the trial judge adopted that the applicable provisions to determine the outcome of the proceeding before her (in what she referred to mistakenly as the “Civil Code of procedure”) were articles 198.1 and 484.1 C.C.P. [12] They are to the following effect: 198.1 Lorsqu’une procédure introductive d’instance a été transmise dans un État étranger pour y être signifiée conformément à l’un des modes admis par le droit de cet État pour la signification sur son territoire des actes venant de l’étranger et qu’il est démontré que, malgré des efforts raisonnables auprès des autorités compétentes de cet État pour l’obtenir, aucun rapport de signification n’a été reçu dans les six mois de la transmission de la demande, le juge peut rendre jugement contre un défendeur qui n’a pas comparu ou qui n’a pas plaidé. 198.1 Where a proceeding introductive of suit was transmitted to a foreign state in order to be served in accordance with any mode of service acknowledged by the law of that state for the service of proceedings from abroad in its territory and it is proved that, despite reasonable efforts in applying to the proper authorities of that state to obtain a return of service, no such return was received within six months of the transmission of the application, the judge may render a judgment against a defendant who has not appeared or who has not pleaded. 484.1 Dans le cas prévu à l’article 198.1, le jugement ne peut être rétracté, à la demande de la

partie condamnée par défaut de comparaître ou de plaider présentée dans l’année de la date du jugement, que si celle-ci démontre que, sans qu’il n’y ait eu faute de sa part, elle n’a pas eu connaissance de la procédure en temps utile pour se défendre ni pour exercer un recours à l’encontre de la décision et que ses moyens de défense n’apparaissent pas dénués de tout fondement. 484.1 In the case provided for in

article 198.1, the judgment cannot be revoked, on the motion of the party condemned by default to appear or to plead made within one year from the date of judgment, unless that party proves that, by no fault of his own, he did not acquire knowledge of the proceedings in time to file a defence or to exercise a recourse against the decision and unless the grounds of his defence do not appear unfounded. [ 56 ] The provisions of

article 484.1 C.C.P. would only come into play if, pursuant to

article 198.1 C.C.P ., the “proceeding introductive of suit was transmitted to a foreign state in order to be served (…) / une procédure introductive d’instance a été transmise dans un État étranger pour y être signifiée (…). Manifestly, that is not what happened here.

On the contrary, the service of the respondent’s proceedings on the appellant by the publication of a notice in a newspaper distributed in the Montreal subway system was an almost certain guarantee that they would never come to his attention in Syria. [ 57 ] In such circumstances, the revocation proceedings were governed by the provisions of general application where there has been a judgment rendered by default, that is to say articles 482 and 484 C.C.P ., and not those contemplated by articles 198.1 and 484.1 C.C.P. [ 58 ] As far as the standard of review is concerned, the Court can only intervene if it finds there is a determinative error of law or a palpable and overriding error of fact.

In my view, the appellant has succeeded in showing an error of law that justifies its intervention. [ 59 ] First, it is interesting to note that in their learned text on civil procedure under the Code of Civil Procedure that governs this appeal, Ferland and Emery expressed the view that the reception of a motion to revoke a divorce judgment on the matrimonial status of the parties did not have the effect suggested by Dalphond, J. in the judgment to which I have referred in paragraph [42].

They wrote as follows: Cet ordre de sursis est une mesure conservatoire tendant à préserver l’existence des droits des un, avant que soit confirmés les droits des autres, si tel doit être le cas. Un sursis d’exécution ordonné par un juge dans le cadre d’une requête en rétractation de jugement n’a pas pour effet d’effacer totalement de façon temporaire les effets du jugement rendu.

Les parties ne sont pas remplacées dans l’état ou elles étaient avant que soit prononcé le jugement qui fait l’objet de la demande de rétractation. [13] [ 60 ] In the same vein, prior to the Superior Court judgment of Dalphond, J., the authors Kélada and Naguib wrote in 1989 what follows: La nouvelle Loi de 1985 sur le divorce entrée en vigueur le 1 er juin 1986, ne prévoit pas comme telle la possibilité de demander la rétractation d’un jugement de divorce, puisqu’elle ne traite que de l’appel (art.21).

Nous sommes d’avis que la demande en rétractation de divorce est possible en application des dispositions pertinentes du Code de procédure civile et nous faisons nôtre, à cet effet, le commentaire […] du juge Montgomery dans Geci c. Gravel [14] . D’ailleurs, l’article 25 de la nouvelle loi autorise expressément le

législateur provincial à «établir les règles de pratique et de procédure…» à être appliquées par le tribunal, ceci devrait, à notre avis comprendre les dispositions du Code de procédure civil en autant qu’elles ne contredisent pas une règle édictée par la Loi de 1985 de divorce. [15] [ 61 ] I also note that like its predecessor, articles 345-348 of the Code of Civil Procedure dealing with revocation of judgment that came into force on January 1, 2016 do not carve out an exception for divorce judgments.

The Legislature being presumed to know the law, one would have expected a specific change to have been made if revocation of judgment could not be obtained that would affect the matrimonial status of parties that had been decided by a final judgment. [ 62 ] In any event, the concern Dalphond, J. expressed when sitting as a trial judge is absent in this case.

When the default judgment of Petras, J. was rendered on October 23, 2014, the parties were already divorced pursuant to the judgment the Syrian court rendered on May 14, 2014 at the respondent’s initiative. [ 63 ] That being said, this Court has taken a different path from that propounded by Dalphond, J. in 2001. [16] [ 64 ] In Droit de la famille – 1705 , [17] the Court allowed an appeal from a judgment that had dismissed a motion in revocation of a judgment of divorce at the stage of its reception in circumstances where a petition for divorce proceeded ex parte due to the failure of the petitioner’s initial counsel to collaborate with his new counsel in signing a declaration of substitution of attorneys.

The petitioner was accordingly unrepresented at the hearing before the trial judge who rendered the default judgment. The judge who dismissed the reception of the revocation proceedings was of the view that the negligence of the appellant’s two counsel in not regularising his representation was not a proper ground of revocation. [ 65 ] As the motion in revocation incorporated not only a defence to the petition for divorce but also a cross-demand, the Court held that the appellant before it should not suffer so grave a prejudice because of the negligence of his lawyers.

It accordingly allowed the appeal, received the motion in its entirety and returned the file to the Superior Court for adjudication. [ 66 ] Similarly, in W.S. v. D.F.I ., [18] the Court reversed a Superior Court judgment dismissing a motion in revocation of a divorce judgment rendered by default without having expressly considered either the defence on the merits or the cross-demand of the petitioner.

It accordingly allowed the appeal, granted the motion in revocation, set aside the judgment of divorce and returned the file to the Superior Court. [ 67 ] The case of Droit de la famille – 081022 [19] bares some similarity to the circumstances of the present matter. In that case, the respondent wife obtained a default judgment of divorce in Montreal by having served her proceedings by the publication of a notice in a newspaper in another Canadian province, knowing full well that her husband no longer lived there and had returned to live in the parties’ country of origin.

The Court also found that the respondent in that case knew perfectly well how to contact the appellant had she chosen to do so, as is the case here. [ 68 ] In words that ring equally true of the respondent in this appeal, the Court said this of the respondent before it in that appeal: [57] De tout ceci, il faut conclure que l’intimée a manœuvré pour maintenir l’appelant dans l’ignorance des procédures instituées à Montréal.

Elle a ainsi prévenu toute contestation. [ 69 ] Given the particular circumstances of the case, the Court allowed the appeal, granted the motion in revocation and declared the Superior Court lacked jurisdiction to hear and decide the respondent’s divorce proceedings.

Although not framed in precisely the same way, that is what the appellant asserts in his motion as his rescissory ground to obtain the revocation of the judgment. [ 70 ] Finally in this respect, in Droit de la famille - 133099 , [20] the Court allowed an appeal from a judgment that had dismissed a motion in revocation of judgment of a default judgment of divorce because of the inadequacy of the plaintiff’s attempts to effect personal service. [ 71 ] In reaching this conclusion, the Court noted the following: [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 whereabouts 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. [ 72 ] Just as in this appeal, there is no legitimate reason to excuse the respondent from having taken appropriate measures to ensure the effective service of the divorce proceedings.

This is all the more so the case when it seems she had no difficulty in attempting to execute the default judgment of separation from bed and board by seizing the appellant’s bank accounts in Paris. [ 73 ] As I mentioned earlier, the motion judge correctly received the revocatory grounds to the extent she did. Her error was in failing to receive all of the rescissory grounds alleged in the motion. The hearing on the rescissory grounds, either in their present form or as

they may be amended to take account of subsequent developments, will determine the ultimate outcome of the proceedings. [ 74 ] That being said, this case represents another example of how important it is for trial judges not to accept at face value a mere affirmation of the kind seen here, to use the words of this plaintiff in her pleadings in the Superior Court, that: “The defendant lives at unknown address”. So bald an assertion as that should have led to incisive questions from the trial judge, despite the fact that the respondent had previously obtained an ex parte order for substituted service.

The answers to such questions, had they been given truthfully, may have avoided the resulting procedural morass in which the parties now find themselves.

(4) Proposed disposition [ 75 ] I would quash the appeal inscribed as of right, grant leave to appeal nunc pro tunc , allow the appeal, receive all the conclusions of the motion to revoke and return the file to the Superior Court for the continuation of proceedings with respect to the rescissory grounds, with legal costs in this court against the respondent and with costs to follow in the Superior Court. ALLAN R. HILTON, J.A.