2024 QCCS 257, 2024 QCCS 257

Droit de la famille — 2487 2024 QCCS 257 SUPERIOR COURT (Family Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-12-353245-222 DATE: 29 January 2024 _____________________________________________________________________ BY THE HONOURABLE BABAK BARIN, J.S.C. _____________________________________________________________________ C. H. Plaintiff vs. F. A.

Defendant _____________________________________________________________________ JUDGMENT ON THE ISSUE OF PERSONAL SERVICE IN THE CONTEXT OF A CONTEMPT OF COURT HEARING (Articles 57 et seq . of the Code of Civil Procedure ) _____________________________________________________________________ INTRODUCTION [ 1 ] This case tests the importance of

article 60 of the Code of Civil Procedure ( C.C.P. ), in a remedy of last resort, contempt of court, which involves the orderly administration of justice or the undermining of its authority or dignity. [ 2 ] Contempt of court, or “outrage” as explained by Lord Diplock now more than a half century ago, is a “generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes.” [1] Lord Diplock’s explanation is perhaps the best

summary of the raison d’être of the law of contempt: My Lords, in any civilized society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decisions of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole.

The provision of such system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. [ 3 ] As explained by the former Chief Justice of Canada (as she then was), McLachlin J., contempt of court rests on the power of the courts to uphold their dignity and process – in other words, the administration of justice before them. The rule of law she added “is at the heart of our society: without it there can be neither peace, nor order nor good government.

The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.” [2] [ 4 ] It is now well-established “that the purpose of a contempt order is first and foremost a declaration that a party has acted in defiance of a court order.” [3] The law in general has recognized two forms of contempt – criminal and civil. The latter is the type at issue in this case in a family context. [ 5 ] The distinction as explained by the Supreme Court, “rests on the element of public defiance accompanying criminal contempt […].

With civil contempt, where there is no element of public defiance, the matter is generally seen “primarily” as coercive rather than punitive. One purpose of sentencing for civil contempt, however, is punishment to breaching a court order.” [4] [ 6 ] In order for a court to conclude that there has been civil contempt, three elements must be established beyond a reasonable doubt. The onus is on the plaintiff and the satisfaction requirement is cumulative. The nature of the proceeding, at least in the civil context, is quasi-criminal.

CONTEXT [ 7 ] The principal question before the Superior Court in this case is: Must the Superior Court proceed with a contempt of court hearing in the absence of a represented defendant who has not been served properly pursuant to

article 60 C.C.P.?

[ 8 ] The defendant’s lawyer is adamant that the Court must proceed with the hearing and address the issue of service only as part of the formal arraignment process, otherwise, the defendant’s lawyer argues – and that vehemently I will add –, her client’s fundamental rights would be at stake. [ 9 ] The plaintiff’s lawyer admits that service was perhaps not affected properly, and she asks the Court to postpone the hearing and reschedule it for another date. [ 10 ] The defendant’s lawyer in response advises the Court, that if the request of the plaintiff to reschedule is granted, she will want to proceed with a motion to dismiss, which she assimilates to a “motion de non-lieu”.

In fact, during the reading of this judgment, she indicated that she is presenting the motion to dismiss for me to adjudicate. ANALYSIS [ 11 ] With respect, the defendant’s lawyer is wrong. [ 12 ]

Article 60 C.C.P. reads as follows: 60. The order to appear is issued on the court’s own initiative or on an application presented before the court, which does not require notification. The order must be served personally; however, if circumstances do not permit personal service, the court may authorize another method of notification .

If the alleged contempt of court is committed in the presence of the court and must be ruled on without delay, the only requirement is that the person be first called upon to justify their behaviour. [Underlining is mine] [ 13 ] In this case, the Order to appear was granted on 22 March 2023. That order then was served on the defendant by email on 27 March 2023, without the prior authorization of the Superior Court.

After much back and forth and then a thorough review of the court record by the Court and the plaintiff’s lawyer herself, the plaintiff’s lawyer herself admits that the Order to appear was not properly served. [ 14 ] In the absence of proper service, therefore, I am of the view that the Order to appear issued against the Defendant must be reserved upon him either personally or by obtaining the prior authorization of the Superior Court for notification by another method, and the contempt of court hearing scheduled for today must be postponed until such time as proper service has been affected – as soon as possible. [ 15 ] While in the absence of the defendant and the presence of his lawyer, the Superior Court could have proceeded with the contempt of court hearing, if the defendant had been properly served as the Court of Appeal indicates in I.A . v.

N.B . [5] , such is not the situation in this case. [ 16 ] In my view, the judge presiding over a contempt of court hearing in a civil context, not only has the discretion to raise the service issue as a threshold question, but I would go as far as saying that he or she has the obligation to do so, given the limpid provision of the C.C.P.

To proceed any other way, would not only be in breach of the explicit provisions of the C.C.P., but it would undermine the orderly administration of justice, which is at the heart of a contempt of court proceeding. [ 17 ] As I indicated at the outset of this judgment, contempt of court rests on the power of the courts to uphold their dignity and process. The rule of law in this province is directly dependent on the ability of the Superior Court to enforce its process and maintain its dignity and respect.

Disregarding an explicit provision of the C.C.P. in the context of a case such as this one, would do just the very opposite of that! [ 18 ] This said, if the defendant’s lawyer continues to be of the view that a dismissal application or a motion de non-lieu is nevertheless justified, she may address that application to the judge who will eventually hear the now postponed – until proper service – of the contempt of court hearing.

FOR THESE REASONS, THE COURT: POSTPONES the hearing on the charges of contempt of court lodged in this matter pursuant to articles 57 et seq . of the Code of Civil Procedure to a date shortly after the proper service of the Order to appear dated 22 March 2023; WITHOUT LEGAL COSTS considering the nature of the litigation between the parties. __________________________________ , BabAK BARIN, J.S.C.

Me Diane Brais Me Sophie Gioia BRAIS & ASSOCIÉS Lawyers of the Plaintiff Me Linda Schachter DEVINE SCHACHTER POLAK Lawyers of the Defendant Hearing dates: 29 January 2024