2019 QCCA 2139, 2019 QCCA 2139

Official English Translation of the Judgment of the Court Droit de la famille — 192513 2019 QCCA 2139 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028370-195 (500-12-332049-166) DATE: December 11, 2019 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. S... R... APPELLANT - Defendant v. C... M...

RESPONDENT - Plaintiff JUDGMENT [ 1 ] Clearly, the parties are still far from adhering to the principle of seeking to resolve their matrimonial dispute through appropriate, efficient, economical and prompt processes. [1] [ 2 ] Indeed, this is the third time they have come before this Court in three years, further to judgments rendered by three different judges of the Superior Court. [2] [ 3 ] This time the appellant appeals against the judgment rendered on May 14, 2019 by the Superior Court, District of Montreal (the Honourable Mr.

Justice Robert Castiglio). [3] [ 4 ] The appellant challenges each and every conclusion of that judgment on the grounds that: (

i) the judge did not respect his right to be heard, (ii) the respondent’s pleading was not served on him in accordance with

article 494 C.C.P. and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters , [4] to which Canada and [Country A] are parties (the “Convention”) and (iii) the summons to appear at the hearing and bring with him the documents necessary to establish his income, for purposes of quantifying his support obligations towards his minor child, was also notified to him in breach of the Convention, and therefore, he argues, in violation of the territorial integrity [of Country A], where he is domiciled. [ 5 ] The appeal should be allowed in part, solely for the purpose of reversing the following conclusions of the judgment under appeal: [ translation ] [45] AUTHORIZES the lawyer for Mrs.

M. to serve all pleadings, exhibits, documents or correspondence necessary for the continuation of the file on Mr. R. by email, at the following address: [...]@gmail.com; [46] AUTHORIZES Mr. R. to serve all pleadings, exhibits, documents or correspondence necessary for the continuation of the file on the lawyer for Mrs.

M. by email, at the following address: […]@montrealfamilylaw.com. [ 6 ] The following are the essential facts for understanding the outcome of the appeal. - Background [ 7 ] The parties were married in 1992 [in Country B]. [ 8 ] They subsequently moved [to Country A], where their two sons, X and Y, were born. The first son is now 15 years old and lives with the appellant in that country, while Y, who is 11 years old, has lived with his mother in Quebec since 2015. [ 9 ] The parties separated in September 2013, while they were still both domiciled [in Country A].

They entered into a separation agreement in that country on May 19, 2014.

[ 10 ] The respondent left [Country A] without the children on August 19, 2015 and returned to Quebec. [ 11 ] On September 4, 2015, the appellant instituted divorce proceedings [in Country A]. [ 12 ] On October 19, 2015, the respondent was awarded custody of child Y pursuant to a judgment rendered by the courts [of Country A]. She was also authorized to bring the child with her to Quebec.

Custody of X was awarded to the appellant, given X’s expressed desire. [ 13 ] On October 23, 2015, the respondent instituted proceedings in Superior Court for child custody and the determination of child support (file no.: 500-04-067249-152; “ File 1 ”). [ 14 ] On November 6, 2015, the respondent instituted divorce proceedings in Superior Court (file no.: 500-12-328819-150; “ File 2 ”), alleging the length of the judicial process [in Country A] and the fact that it would be more efficient and economical for her to institute the proceedings in Quebec. [ 15 ] On November 23, 2015, the appellant notified a declinatory exception in order to obtain the dismissal of the divorce proceedings instituted by the respondent in File 2.

He argued lack of jurisdiction. On the same date, he notified an exception to dismiss with respect to the respondent’s application for custody and support in File 1. [ 16 ] On February 10, 2016, within the context of File 1, the Superior Court (the Honourable Mr. Justice Brian Riordan) made an interim order, established the appellant’s annual income at CDN$275,000 and ordered him to pay child support of $2,100 per month to the respondent for child Y.

The judge wrote: [ translation ] [20] It is worthwhile noting that we are at an interim stage in this file and that another judge will eventually have the opportunity to establish support following complete proof of the parties’ incomes and assets. Our purpose today is to provide a living for child “X” in the meantime. [21] Therefore, we will establish Mr. R.’s income for purposes hereof at $275,000, which will result in interim support payable by Mr. R. to Mrs. M. for the child “X” of $2,100, payable on the first day of every month. This support shall be retroactive to the date of Mrs.

M.’s motion, namely, November 19, 2015, and shall be valid until judgment on Mr.

R.’s motion on the declinatory exception s , which are to proceed this coming March 30. [Emphasis added] [ 17 ] On June 14, 2016, the Superior Court (the Honourable Madam Justice Silvana Conte) allowed the appellant’s declinatory exception in File 2 and dismissed the respondent’s application for divorce based on lack of jurisdiction, given that the respondent had not ordinarily resided in Quebec for at least one year when she filed her application, contrary to the condition set out in s. 3 (1) of the Divorce Act . [5] [ 18 ] On August 19, 2016, the respondent instituted new divorce proceedings (file no.: 500-12-332049-166; “ File 3 ”). [ 19 ] On November 14, 2016, our Court dismissed the appeal of the above-mentioned judgment dated June 14, 2016 rendered by Conte, J.S.C. in File 2. [ 20 ] On December 11, 2017, a third judge of the Superior Court, the Honourable Mr.

Justice Lukasz Granosik, dismissed the appellant’s declinatory exception based on lis pendens and forum non conveniens in File 1, as regards the application for custody and support, and in File 3, as regards the second divorce proceedings, and confirmed the jurisdiction of the Superior Court in both files. [ 21 ] On November 9, 2018, our Court dismissed the appeal of that judgment. [ 22 ] On April 9, 2019, another judge of the Superior Court (the Honourable Madam Justice Christiane Alary) sitting at a case management hearing in File 3, took note that the hearing of the provisional measures was set for May 13 and 14, 2019, including the appellant’s application for recognition of judgments rendered [in Country A], and ordered the appellant to send the respondent’s lawyer several documents, most of which were intended to allow the judge hearing the application for provisional measures to establish his income for purposes of determining the support payable for child Y. [ 23 ] This order by Alary, J.S.C. was made in the absence of the appellant, who had received notification of the notice of presentation by email and had responded, via his own email dated April 5, that he would not be present at the case management hearing. [ 24 ] On April 11, 2019, the appellant, who is self-represented, notified to the court office of the Superior Court in Montreal a notice of refusal to receive service by technological means pursuant to

article 133 C.C.P. (“ Notice of filing of refusal of consent to notification by a technological means ”). [ 25 ] On May 3, 2019, another judge of the Superior Court (the Honourable Madam Justice Marie Gaudreau) allowed the respondent’s application in File 3 seeking permission to serve to the appellant by email all pleadings, exhibits, documents or correspondence necessary for purposes of the [ translation ] “proper conduct of the trial scheduled on May 13 and 14, 2019”.

A copy of the May 3 order made by Gaudreau, J.S.C. was sent to the appellant by email that same day. [ 26 ] The hearing on the provisional measures sought by the respondent and on the appellant’s application for recognition of the judgments rendered by the courts [of Country A] was held as scheduled on May 13 and 14, 2019, before Castiglio, J.S.C.. The appellant travelled to Montreal for purposes of the hearing, was present throughout both days, testified and was able to plead his case. - The judgment under appeal

[ 27 ] More specifically, Castiglio, J.S.C. was seized of the following applications by the parties: [6] (

a) the appellant’s application for recognition of foreign decisions; (

b) the appellant’s application to reduce the support payable to the respondent for child Y, as established by Riordan, J.S.C.; (

c) the appellant’s application for a $65,000 provision for costs; (

d) the respondent’s application to renew the interim order made by Riordan, J.S.C. as regards the support payable by the appellant for the child; [7] (

e) the appellant’s application for the [ translation ] “revocation” of the order made by Gaudreau, J.S.C. permitting the respondent to serve on the appellant by email all pleadings, exhibits, documents or correspondence necessary for purposes of the hearing on May 13 and 14; and, (

f) the appellant’s objection to the respondent being permitted, for the remainder of the divorce proceedings, to serve him all documents or pleadings by email. [ 28 ] In the judgment under appeal, the judge: (

a) deferred the hearing of the appellant’s application for the recognition of the foreign decisions to a later date in light of the fact that the two days of hearing that had been scheduled would be insufficient; (

b) partially allowed the appellant’s application to reduce the interim support established by Riordan, J.S.C., attributed annual income of CDN$160,000 to him and ordered him to pay to the respondent, for child Y, support of CDN$1,295 per month until the divorce judgment; (

c) consequently, dismissed the respondent’s application to renew Riordan, J.S.C.’s interim order; (

d) dismissed the appellant’s application for a provision for costs, given that it [ translation ] “was unfounded”; (

e) given that the appellant was present at the hearing before him and that the parties proceeded, the judge dismissed the appellant’s application to revoke the judgment of Gaudreau, J.S.C., who had authorized the respondent to serve on the appellant the documents and pleadings necessary for that hearing of May 13 and 14, because the application [ translation ] “[…] was moot once the hearing was over”; and, (

f) disallowed the appellant’s objection to the respondent being permitted, for the remainder of the divorce proceedings, to serve him all pleadings and documents by email, justifying that decision on the basis of the sound administration of justice, the principle of proportionality and

article 133 para. 2 C.C.P. in fine , and, accordingly, authorized notification by technological means between the parties for the remainder of the proceedings. - The appeal [ 29 ] The appellant’s motion for leave to appeal that judgment was granted on June 28, 2019 by Healy, J.A., who stayed the order permitting notification via email on the appellant during the appeal and ordered that any subsequent notification between the parties be made in accordance with the Convention. [ 30 ] The appellant is asking the Court: - to reverse each and every conclusion and order in the judgment at first instance; - to order that any future notification between the parties be made in accordance with

article 494 C.C.P. and the Convention; - to establish the support payable by him for child Y or, subsidiarily, return the file to the Superior Court so the support can be established; - to order the respondent to pay the legal costs both in first instance and on appeal; - to order the respondent to pay him a $65,000 provision for costs. - Analysis [ 31 ] Articles 110 , 133 and 494 C.C.P. state the following:

110. Notification may be made by any appropriate method that provides the notifier with proof that the document was delivered, sent or published. Such methods include notification by court bailiff, by mail, by delivery, by technological means and by public notice. If the law so requires, notification is made by a court bailiff, in which case it is called service. Whatever the method of notification used, a person who acknowledges receipt of the document or admits having received it is deemed to have been validly notified. 133.

Notification by a technological means is made by sending the document to the address provided by the addressee for the receipt of the document, or to the address that is publicly known as the address where the addressee receives documents, provided the address is active at the time of sending. However, notification by a technological means to a party not represented by a lawyer or a notary is permitted only with the party’s consent or if ordered by the court. 494.

In States party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, made at The Hague on 15 November 1965, international notification is made in accordance with the Convention, which is reproduced in a

schedule to this Code and has force of law in Québec. In States not party to the Convention, notification is made as provided for in Book I or in accordance with the law in force in the place where the notification is made. The court, on request, may authorize a different method of notification if it is required by the circumstances. The certificate of notification is sent to the notifying party through the same channels as those used to send the request for notification. 110.

La notification peut être faite par tout mode approprié qui permet à celui qui notifie de constituer une preuve de la remise, de l’envoi, de la transmission ou de la publication du document. Elle l’est notamment par l’huissier de justice, par l’entremise de la poste, par la remise du document, par un moyen technologique ou par avis public. Elle est faite, lorsque la loi le requiert, par l’huissier de justice, auquel cas elle est appelée signification.

Quel que soit le mode de notification utilisé, la personne qui accuse réception du document ou reconnaît l’avoir reçu est réputée avoir été valablement notifiée. 133. La notification par un moyen technologique se fait par la transmission du document à l’adresse que le destinataire indique être l’emplacement où il accepte de le recevoir ou à celle qui est connue publiquement comme étant l’adresse où il accepte de recevoir les documents qui lui sont destinés, dans la mesure où cette adresse est active au moment de l’envoi. Cependant, la notification par un tel moyen n’est admise à l’égard de la

partie non représentée que si celle-ci y consent ou que le tribunal l’ordonne. 494 . La notification internationale s’effectue, dans les États qui y sont parties, conformément à la Convention relative à la signification et la notification à l’étranger des actes judiciaires et extrajudiciaires en matière civile ou commerciale, faite à La Haye le 15 novembre 1965, dont le texte est reproduit en annexe, laquelle a force de loi au Québec. La notification, dans un État qui n’est pas

partie à cette convention, s’effectue suivant les modes prévus au livre I ou conformément au droit en vigueur au lieu où elle doit être effectuée. Le tribunal peut, sur demande, si les circonstances l’exigent, autoriser un autre mode de notification. Le procès-verbal de la notification est transmis à celui qui l’a requise par les mêmes voies que celles par lesquelles la demande de notification a été acheminée. [Emphasis added] [ 32 ] The Minister of Justice made the following comments regarding

article 494 C.C.P . :

[ 32 ] The Minister of Justice made the following comments regarding

article 494 C.C.P . : [ translation ] The first paragraph of this article, which is new law, confirms that the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters has the force of law in Quebec . This provision remedies the deficiency noted by the Court of Appeal in S.A. Louis Dreyfus & Cie c.

Holding Tusculum B.V. , in which the Court was of the view that, notwithstanding the adoption of the Décret concernant la Convention relative à la signification et la notification à l’étranger des actes judiciaires et extrajudiciaires en matière civile ou commerciale , O.C. 491-88 dated March 30, 1988, the convention had not been formally implemented in Quebec law; according to the Court, it would have been necessary to implement the convention in Quebec law through implementing legislation or legislative amendments.

It is relevant to note that, in Quebec, the Minister of Justice was designated as the Central Authority by the same order in council 491-88, pursuant to articles 2 and 18 of the convention. […]. [8] [Emphasis added] [ 33 ] Canada and [Country A] are both parties to the Convention. It came into force on May 1, 1989 in Canada and January 1, 1995 [in Country A]. [9] [ 34 ] The Convention, which was formally implemented in Quebec law by

article 494 C.C.P . , provides that each Contracting State designates a Central Authority which undertakes “to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6”. [10] As previously mentioned, in Quebec, the Minister of Justice was designated the Central Authority by order in council. [ 35 ] Author Frédérique Sabourin states that once the conditions of the first

article of the Convention have been fulfilled, the notification methods provided for in the Convention are compulsory, because the Convention is [ translation ] “exclusive”. [11] These conditions read as follows: The present Convention shall apply in all cases , in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

This Convention shall not apply where the address of the person to be served with the document is not known. [ 36 ] The Convention sets out a formal procedure so that requests for service and notification pass through the Central Authorities or judicial officers of the State in which the documents originate and of the State addressed. [12] [ 37 ]

Article 5 of the Convention deals with the choices available to the State addressed for serving and notifying a judicial document: The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –

a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. Subject to sub-paragraph (

b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed. That part of the request, in the form attached to the present Convention, which contains a

summary of the document to be served, shall be served with the document. [13] [ 38 ]

Article 10 of the Convention provides for the following alternative, subject to the objection of the State of destination: Provided the State of destination does not object , the present Convention shall not interfere with –

a) the freedom to send judicial documents, by postal channels, directly to persons abroad, […] [Emphasis added] [ 39 ] The Practical Handbook on the Operation of the Service Convention (the “Practical Handbook”) defines the meaning of “by postal channels” in the Convention as follows: 35. Under a “functional equivalent” approach, “postal channels” provided for by

Article 10(

a) may include information technologies such as e-mail or fax in States Parties that have not objected to

Article 10(

a) and to the extent that documents are sent by postal agencies. A number of commentators are of the view that “postal channels” may be construed as including service by e-mail. [14] […] [Emphasis added]

[ 40 ] As it happens, [Country A] has declared that it opposes the use, within its territory, of the methods of transmission under articles 8 and 10 of the Convention, including service by “postal channels” [15] . The Practical Handbook sets out the consequence of such a declaration of opposition by a member State: 259. Under the express terms of the opening words of

Article 10, the validity of service through postal channels also depends on the absence of objection to this form of transmission by the State of destination. […] Several States, however, have declared their opposition to this method of service […]. It should be stressed that the validity of service pursuant to

Article 10(

a) of the Convention is not dependant on whether the domestic law of the State of destination permits service by postal channels. In other words, it is the declaration that matters, not the content of the internal law of the State of destination. [16] [Emphasis added] [ 41 ] Lastly, the Practical Handbook specifies that “judicial documents” include writs of summons, the defendant’s reply, decisions and judgments delivered by a member of a judicial authority, as well as witnesses summons (subpoenas) and requests for discovery of evidence sent to the parties. [17] [ 42 ] That being said,

article 494 C.C.P. , which implements the Convention in Quebec law, is relatively new and Quebec courts have not had occasion to rule much on its application. [ 43 ] Vézina, J.A., sitting as judge alone on an application for leave to appeal and relying on Superior Court jurisprudence, stated the following as regards the compulsory nature of the obligation to comply with the Convention: [ translation ] [13] This brings us back to the rules for “international notification” in the Code , as the judge concluded: [18] In short, the [domestic law] rule set out in

article 125 C.C.P. cannot apply to the case at bar. Consequently, we must turn to

article 494 C.C.P . , which provides for the application of the Hague Convention. [14] In a recent judgment, Pierre-C. Gagnon, J.C.S., stated, with references to support him, that: [38] The Hague Convention sets out various valid methods of notification, but contains mechanisms whereby States can limit the list of methods authorized within their territory. [39] Germany, in fact, availed itself of these mechanisms to: oppose service by postal channels (article 10, para.

a) of the Convention); require that documents to be served be written in, or translated into, German (article 5, para. a)). […] [17] In the same judgment, Gagnon, J.C.S. concluded that notification made to other German automobile manufacturers by a method other than that provided for in

article 494 of the Code was void for the following reasons: [32] The Hague Convention dates back to November 15, 1965. [33] In 1998, in Louis Dreyfus , the Court of Appeal ruled that the Hague Convention had not, as of yet, been formally implemented in Quebec or Canadian law, by implementing legislation or legislative amendments. [34] Consequently, at that time, the Code of Civil Procedure applied, mutatis mutandis , to service made outside Quebec, by adapting provisions designed first and foremost for service within Quebec. [35] The Quebec legislature reacted by enacting articles 494 to 496 of the new Code of Civil Procedure , which has been in force since January 1, 2016. [36]

Article 494 C.C.P . requires that, in States that are party to the Hague Convention, international notification be made in accordance with said Convention. [37] It should be noted that the possibility of another mode of service being authorized, as mentioned at the end of

article 494 , is valid only if notification is to be made in a State that is not a party to the Convention . […] [21] The judge’s decision to insist on compliance with the requirements of the Code and, pursuant to the reference in

article 494, with those of the Hague Convention, is certainly not unreasonable. This provision confers no discretion on the court, and international litigants must comply therewith . [18] [Emphasis added] [ 44 ] Other judgments rendered in first instance, particularly in family matters, have also considered that international notification had to be made in accordance with the provisions of the Hague Convention and that notification by email in a signatory state was improper. [19] [ 45 ] In 2013, a working group of the Uniform Law Conference of Canada noted the following regarding the uniform application of

the Convention in Canada: [15] Service in Contracting States done by methods that are not prescribed by the Convention has, at times, been validated by some courts in Canada. Decisions validating such service were rendered despite the fact that the only methods available for serving judicial and extrajudicial documents in civil or commercial matters from one Contracting State to another are those provided by the Convention. This

interpretation of the Convention was confirmed in 2003 and 2009 by Contracting States, including Canada, at meetings of the Special Commission on the Practical Operation of the Convention. It was also confirmed recently by the Ontario Court of Appeal [20] and the Alberta Court of Appeal. [21] [16] Decisions by Canadian courts which validate service by a method not prescribed by the Convention are troublesome as they create legal uncertainty with respect to their effect in other Contracting States .

Courts in other Contracting States may decide that service that was not done by a method prescribed by the Convention is not valid in their jurisdiction and thus refuse to recognize and enforce such decisions. Such decisions are also problematic as they could lead to Canada being criticized by other Contracting States for not respecting its obligations under the Convention. [22] [Emphasis added] [ 46 ] In the present case, the trial judge did not mention

article 494 C.C.P. or the Convention at all. [ 47 ] The Court is of the opinion that the judge should have recognized their compulsory nature for the remainder of the proceedings and that he erred by authorizing the parties, in paragraphs 45 and 46 of the judgment under appeal, to notify to each other by email [ translation ] “all pleadings, exhibits, documents or correspondence necessary for the continuation of the file”, namely, “judicial documents” within the meaning of the Convention.

These conclusions will therefore be reversed. [ 48 ] Indeed, the parties reside in two countries that have signed the Convention and the conditions for its application have been fulfilled: the pleadings in the present case are (1) judicial documents (2) that must be transmitted for service abroad; (3) in a civil matter; [23] and (4) the address of the recipient is known. [24] Once these conditions have been met, the methods provided for in the Convention are compulsory. [25] [ 49 ] However, the appellant’s application to set aside the other orders contained in the judgment under appeal will not be granted. [ 50 ] In fact, the respondent’s failure to properly serve her application regarding the provisional measures, on which the judge of first instance ruled, is remedied by the fact that the appellant had indeed been informed of the hearing dates scheduled for May 13 and 14, 2019, that he was, in fact, present and attended the entire hearing, that he asserted his rights and that he was able to plead his case. [ 51 ]

Article 17 C.C.P. provides that the court cannot rule on an application or take a measure which affects the rights of a party “[…] unless the party has been heard or duly called”.

In the present case, while the appellant may not have been duly called, he was certainly “heard”. [ 52 ] The following principle established by this Court, which was reiterated by the Superior Court in certain decisions and recently referred to in the doctrine, applies: [ translation ] A defendant who has become aware of the proceedings brought against him and has contested those proceedings can no longer raise, on the merits, the irregularity of service. [26] [ 53 ] Moreover, it is not unreasonable to think that, given that the appellant was present at the hearing on May 13 and 14 before Castiglio, J.S.C., that he would undoubtedly not have sought to have the orders made by that judge set aside due to improper service if the judge had ruled in his favour. [ 54 ] The appellant argued at the hearing that the Court should set aside the judgment under appeal because, in any event, it will not have any force within the territory [of Country A], whose courts will refuse to recognize it, and that, all in all, it serves no purpose.

In support of this statement, the appellant refers to

section 27 of the Loi fédérale du 18 décembre 1987 sur le droit international privé (“LDIP”) [27] [Federal act of December 18, 1987 on private international law] which he alleges is in force within the territory of [Country A]: [ translation ]

Article 27 I. Recognition / 3. Grounds for refusal Recognition of a foreign judgment must be refused [in Country A] if it is manifestly incompatible with public order […]. Recognition of a judgment must also be refused if a party establishes: (

a) that it was not properly summoned in accordance with the law of its domicile or habitual residence, unless it proceeded on the merits without reservation ; (

b) that the decision was rendered in violation of fundamental principles […] of procedural law, in particular that the party was not given an opportunity to present its case ; […] Moreover, the foreign decision cannot be reviewed on the merits.

[Emphasis added] [ 55 ] This provision does not support the appellant’s position, assuming that it is in force and applicable, which was not proved to us, the appellant having merely annexed a photocopy of this provision to his brief. [28] [ 56 ] First, this is a provision that the appellant will be able to invoke, if he considers it appropriate, before the courts [of Country A] if he intends to oppose the recognition by the judicial authorities [of Country A] of the judgments rendered in the present matter by the courts of Quebec.

It is not, however, a provision of law in force in Quebec that can be pleaded before us in the matter at hand. [ 57 ] Second, and solely for purposes of discussion, it seems doubtful at first glance that the appellant will be able to avail himself of this provision insofar as he duly [ translation ] “proceeded on the merits without reservation” before the judge at first instance. A reading of the judgment under appeal indicates in several places that the appellant actively participated in the debate, that he testified and was cross-examined and that he was able to plead his case.

In short, his fundamental right to be heard was respected and he had the possibility to make his case. [ 58 ] For all these reasons, the appeal should be dismissed as regards the conclusions of the judgment under appeal (

i) establishing the appellant’s annual income at $160,000 for purposes of determining the support, (ii) establishing the support payable by the latter for child Y at $1,295 per month and (iii) dismissing his application for a provision for costs.

It should be added that the appellant’s application requesting that we order the respondent to pay him a $65,000 provision for costs in the appeal proceedings is unfounded, particularly because of the lack of evidence required for an analysis of such an application. [ 59 ] Moreover, the appeal of the conclusion by the judge of first instance dismissing the appellant’s application for the [ translation ] “revocation” of the judgment rendered by Gaudreau, J.S.C. on May 3, 2019, which authorized email notification of the pleadings and documents required for the hearing on May 13 and 14, 2019, is moot, given that the hearing was held. [ 60 ] Lastly, although the respondent did not file a memorandum or an incidental appeal with respect to the judge’s conclusion authorizing the appellant to serve her by email with all pleadings, exhibits, documents or correspondence necessary for the continuation of the proceedings, it is appropriate to provide that both parties must serve/notify to each other any “judicial document” for the remainder of the proceedings in accordance with the provisions of the Convention.

FOR THESE REASONS, THE COURT: [ 61 ] ALLOWS the appeal in part; [ 62 ] REVERSES the following conclusions of the judgment under appeal: [ translation ] [45] AUTHORIZES the lawyer for Mrs. M. to serve all pleadings, exhibits, documents or correspondence necessary for the continuation of the file on Mr. R. by email, at the following address: [...]@gmail.com; [46] AUTHORIZES Mr. R. to serve all pleadings, exhibits, documents or correspondence necessary for the continuation of the file on the lawyer for Mrs.

M. by email, at the following address: […]@montrealfamilylaw.com. [ 63 ] REPLACES these conclusions with the following one: DECLARES that for the remainder of the divorce proceedings (file no.: 500-12-332049-166) the parties shall serve or notify to each other any “judicial document” as defined in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter in accordance with

article 494 of the Code of Civil Procedure of Quebec and said Convention, insofar as the provisions of the Convention remain in force and applicable throughout the duration of the divorce proceedings and until a final judgment is rendered. [ 64 ] DIRECTS the clerk of the Court to serve this judgment on the appellant as provided for in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters . [29] [ 65 ] WITHOUT LEGAL COSTS in light of the nature of the file. GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. S... R... Appellant C... M... Respondent

Date of hearing: November 15, 2019