R.S. v. P.R.

R.S. v. P.R.
Collection
Supreme Court Judgments
Date
2019-10-25
Neutral citation
2019 SCC 49
Report
[2019] 3 SCR 643
Case number
37861
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Brown, Russell; Martin, Sheilah
On appeal from
Quebec
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R.S. v. P.R., 2019 SCC 49, [2019] 3 S.C.R. 643
Appeal Heard: January 21, 2019 Judgment Rendered: October 25, 2019 Docket: 37861
Between:
R.S.
Appellant
and
P.R.
Respondent
- and -
Attorney General of Quebec
Intervener
Official English Translation: Reasons of Gascon J. and reasons of Brown J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ.
Reasons for Judgment: (paras. 1 to 99)
Concurring Reasons: (paras. 100 to 144)
Dissenting Reasons: (paras. 145 to 189)
Gascon J. (Wagner C.J. and Moldaver, Karakatsanis and Martin JJ. concurring)
Abella J.
Brown J.
r.s. v. p.r.
R.S. Appellant
v.
P.R. Respondent
and
Attorney General of Quebec Intervener
Indexed as: R.S. v. P.R.
2019 SCC 49
File No.: 37861.
2019: January 21; 2019: October 25.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown and Martin JJ.
on appeal from the court of appeal for quebec
Private international law — Lis pendens — Application for stay of ruling — Condition of susceptibility of recognition of foreign judgment — Burden and degree of proof — Discretion of trial judge — Parallel applications for divorce filed first in Belgium by husband and then in Quebec by wife — Husband applying in Quebec for stay of ruling on wife’s application on basis of international lis pendens — Application dismissed by Superior Court but allowed by Court of Appeal — Whether Court of Appeal erred in attributing burden of proof and in interpreting degree of proof required for condition of susceptibility of recognition of foreign judgment in context of international lis pendens — Whether Court of Appeal was justified in intervening in exercise of trial judge’s discretion — Civil Code of Québec, art. 3137.
R and S married in Belgium in 2004. They moved to Quebec with their children in 2013. In 2014, the couple’s relationship deteriorated, and S told R that she had decided to terminate their union. Two applications for divorce were then brought, one by R in Belgium on August 12, and the other by S in Quebec on August 15. Under Belgian law, R then revoked, in a letter, all the gifts he had given S during their marriage, which were valued at over $33 million.
R applied to the Superior Court under art. 3137 of the Civil Code of Québec (“C.C.Q.”) to stay its ruling on S’s proceedings in Quebec on the basis of international lis pendens. That court — which considered that it would not be possible to recognize in Quebec a decision of a Belgian court based on the provision of Belgium’s Code civil under which R could revoke the gifts, because that provision is discriminatory — held that S’s divorce proceedings in Quebec should not be stayed. The Court of Appeal reversed that judgment, finding that it would be premature to conclude that a Belgian decision with respect to the revocation of the gifts could not be recognized in Quebec. In the Court of Appeal’s opinion, the trial judge had also made an error that had caused her analysis concerning the appropriateness of exercising her discretion to order a stay to be unreasonable. It therefore ordered that S’s divorce proceedings in Quebec be stayed.
Held (Brown J. dissenting): The appeal should be allowed and the Superior Court’s conclusion on dismissing the application for a stay restored.
Per Wagner C.J. and Moldaver, Karakatsanis, Gascon and Martin JJ.: The conditions for the application of art. 3137 C.C.Q. are met in this case. R has discharged his burden, which is not onerous, of establishing that it is possible that the eventual decision of the Belgian court will be susceptible of recognition in Quebec. However, the Court of Appeal’s intervention in the exercise of the trial judge’s discretion was unwarranted. It was open to the trial judge to conclude that it was appropriate to decline to order a stay as she did in this case. Her decision on this point must therefore be restored.
Article 3137 C.C.Q. establishes the lis pendens exception in Quebec private international law. Under it, a court may stay its ruling on an action brought in Quebec if the dispute is already the subject of proceedings before the courts of a foreign jurisdiction. Although this article is applied regularly, it constitutes an exception in that the Quebec court is departing from the general principle with respect to cases filed with it by staying proceedings that have in fact been validly brought before it. The international lis pendens exception is intended to allow the domestic court to stay its ruling in order to eventually give effect to the foreign decision in Quebec for the purpose of avoiding a situation in which parallel proceedings result in inconsistent decisions that could both have effects in Quebec. Under this article, three conditions must be met before a Quebec court may stay its ruling. First, the action must have been filed with the foreign forum first. Second, there must be an identity of parties, of facts and of subject — the condition of three identities — between the two actions that have been brought. Third, it must be possible for the foreign action to result in a decision that will be susceptible of recognition in Quebec. If any one of these conditions is not met, the application for a stay cannot be granted, because there is then not a situation of lis pendens under art. 3137 C.C.Q.
The court cannot raise the international lis pendens exception of its own motion. Article 3137 C.C.Q. provides that the Quebec authority may stay its ruling on an action only “[o]n the application of a party”. In accordance with the principles of evidence that apply in civil matters, and as in any other case, it is the party who raises international lis pendens and seeks a stay who must show, on a balance of probabilities, that the conditions of that article, including the third one, are met. This is provided for explicitly in art. 2803 para. 1 C.C.Q., which reads “[a] person seeking to assert a right shall prove the facts on which his claim is based”. Article 3155 C.C.Q. changes nothing in this regard. It establishes a presumption that the foreign decision is valid, and this presumption can be rebutted only if one of the six exceptions enumerated in that article applies. While it is true that the condition of susceptibility of recognition under art. 3137 C.C.Q. must be considered in light of the exceptions of art. 3155 C.C.Q., the burden is still on the party who seeks to benefit from art. 3137 C.C.Q. to show that the three conditions under it are met.
In S’s opinion, what is at issue in the analysis of the third condition in this case is whether art. 1096 of the Belgian Code civil is inconsistent with public order as understood in international relations, which is one of the exceptions to the recognition of foreign judgments that are provided for in art. 3155 C.C.Q. But according to the words setting out this exception, what must be analyzed is the outcome of the foreign decision, not the laws of the foreign jurisdiction. The purpose is not to instruct the foreign authorities in their own law. The Quebec court’s role is limited to ensuring that a foreign decision is not enforced if the decision’s outcome would be so inconsistent with certain of the underlying values of the Quebec legal system as to be incapable of being incorporated into it. Public order as understood in international relations is thus generally more limited than its domestic law counterpart. The reason for this lies in a desire to apply Quebec rules of conflict that allow for the application of a foreign law under certain conditions even if that law is inconsistent with Quebec law. Thus, a foreign decision will not be recognized if its outcome runs counter to the moral, social, economic or even political conceptions that underpin Quebec’s legal order. In this case, the trial judge relied solely on an analysis of the discriminatory nature of art. 1096 of the Belgian Code civil to conclude that there was a “great” risk that a Belgian court’s decision would not be recognized in Quebec. The discriminatory nature of the legislative provision can be a relevant factor for purposes of the analysis. However, an approach as restrictive as the one adopted by the trial judge strays from the requirements of art. 3137 C.C.Q.
In the context of art. 3137 C.C.Q., the assessment of the possibility that the foreign decision is inconsistent with international public order must take into account the required degree of proof. The burden of showing that the third condition is met, that is, that it will be possible for the foreign proceedings to result in a decision that is susceptible of recognition in Quebec, is not an onerous one. On the basis of the very words of art. 3137 C.C.Q., the only requirement is that the action pending in the foreign court “can result in a decision which may be recognized in Québec”. Thus, even if the exceptions listed in art. 3155 C.C.Q. remain relevant for the purpose of determining whether the Quebec court may order a stay under art. 3137 C.C.Q., the burden applicable to international lis pendens differs from the one that applies to the proceeding for recognition and enforcement of the foreign decision. Where the international lis pendens exception is at issue, the court does not rule on the question whether the foreign judgment should be incorporated into the Quebec legal order; it merely decides whether the proceedings brought in Quebec should be stayed pending the filing there of an application for exemplification. In such situations, the Quebec court does not always have the benefit of a final foreign decision. The analysis with respect to the condition of susceptibility of recognition cannot therefore be completed as definitively as in the context of the exemplification proceeding. That is why certain authors describe the burden of proof under art. 3137 C.C.Q. in terms of a “prognosis” or a “plausibility” of recognition. The applicant can discharge this burden by showing that it is possible that the foreign decision will eventually be recognized in Quebec. This low threshold can be explained in particular by the underlying purposes of art. 3137 C.C.Q., namely to foster international comity and avert the risk of potentially conflicting judgments.
The trial judge imposed a burden of proof that was more onerous than the one required by art. 3137 C.C.Q. R was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with public order as understood in international relations. At this time, the outcome of the eventual Belgian decision is uncertain. There are a number of factors in support of the possibility that that outcome will not involve the revocation of the gifts, and therefore that it will not be manifestly inconsistent with this international public order. This is enough to meet the third condition of art. 3137 C.C.Q.
Once the applicant has established that there is in fact a situation of international lis pendens for the purposes of art. 3137 C.C.Q., the Quebec court must still exercise its discretion and decide whether it should stay its ruling in the circumstances. The discretion under art. 3137 C.C.Q. is grounded in the idea that, even if the dispute was submitted to the foreign court first, and even if none of the exceptions to the recognition of foreign decisions set out in art. 3155 C.C.Q. apply, it is nonetheless possible that the foreign court is not the one that has the closest connections with the dispute. In this regard, the required analysis is related to the one that applies with respect to the discretion under art. 3135 C.C.Q., which codifies the doctrine of forum non conveniens in Quebec private international law. Because of this close relationship, the criteria developed by the courts with respect to forum non conveniens also apply to international lis pendens. The list of criteria is not exhaustive, and the weight to be attached to each of the criteria depends on the circumstances. While the perspective specific to each article differs, there is no reason to distinguish the analysis of the criteria conducted for the purposes of art. 3137 C.C.Q. from the one required in the context of art. 3135 C.C.Q. solely on the basis of the nature of the application.
The standard for intervention that should be applied to an exercise of the discretion in the context of international lis pendens is an exacting one. An appeal court should intervene only if the judge who ruled on the application erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision. A simple difference of opinion will not suffice. In the end, the possible recognition of the Quebec judgment in the other country is the only criterion on which the Court of Appeal relied to substitute its own analysis for that of the trial judge in this case. The Court of Appeal expressed no disagreement with her regarding the other criteria she had discussed. This criterion alone could not justify that court’s intervention in the trial judge’s exercise of her discretion. The recognition of the Quebec judgment in the other country cannot be a determinative consideration unless the Quebec judgment would not be effective without being enforced in the other country. There is no doubt in this case that the Quebec judgment would be effective, given that much of the valuable property at issue in the litigation is located in Quebec.
Per Abella J.: There is agreement that the proceedings in Quebec should not be stayed. However, there is disagreement with the majority’s application of the legal scheme governing the susceptibility of recognition of foreign decisions. R has not discharged his burden of demonstrating that a Belgian decision rendered under art. 1096 of the Belgian Civil Code permitting the unilateral revocation of gifts could be recognized by a Quebec court. As a result, he has not met the test for a stay.
The evidence shows that the Belgian provision is non‑discretionary and allows a spouse to unilaterally revoke, without any formalities or justification, gifts bestowed during the marriage. It is an absolute right, even when exercised in bad faith. More significantly, the revocation contemplated under art. 1096 of the Belgian Civil Code is valid in Belgium even when its application results in flagrant inequalities between spouses. In this case, the husband is seeking to unilaterally revoke over $33 million dollars in assets. As the trial judge found, the consequences for the wife will be catastrophic.
The party seeking a stay under art. 3137 of the C.C.Q. bears the burden of demonstrating, on a balance of probabilities, that a stay should be granted. This includes the burden to demonstrate that the outcome of the foreign decision will not be manifestly inconsistent with public order. Because of the uncertainty usually surrounding the effects of a pending decision, the examination simply requires demonstrating a possibility that the decision will be recognized. While it may be desirable in some cases to await the outcome of a pending proceeding to determine whether it will be inconsistent with the public order condition, art. 3137 of the C.C.Q. does not require a court to do so.
The Court of Appeal was of the view that the burden was not on the husband who was seeking the stay, but on the wife who opposed it. This reversal of the onus led the Court of Appeal to suggest various hypotheticals showing that it was premature to determine at this stage whether the decision would be manifestly inconsistent with public order. Allowing speculation to drive the analysis, rather than the reality of the revocation for the wife, empties the burden on the husband of any meaning.
A decision, or pending decision, cannot be recognized in Quebec if, contrary to art. 3155 of the C.C.Q., it is “manifestly inconsistent with public order as understood in international relations”. Not every foreign decision that reaches a result different from what it would likely be under Quebec law will be found to violate the fundamental values underlying the international public order. The international public order exception applies only to situations where the application of a foreign law would contradict the moral, social, economic and political conceptions underlying the Quebec legal system to such an extent as to be incapable of combining with it.
The violation of the principle of spousal equality would be manifestly incompatible with public order as understood in international relations. Various international instruments reinforce the view that inequality between spouses in the divorce context is contrary to public order as understood in international relations. As well, the equality of spouses and the protection of a vulnerable one are philosophical underpinnings of the C.C.Q. The spousal property regime in Quebec allows the spouses to choose together which regime they wish to apply to their property. It is a regime based both on consensus and equality between the parties. Foreign judgments which contradict those conceptions, such as any decision made under art. 1096 of the Belgian Civil Code in this case, will not be recognized in Quebec. Without any evidence that there is even a possibility of a judgment in Belgium that does not infringe these fundamental public order values, the outcome of the decision under art. 1096 of the Belgian Civil Code could not be recognized in Quebec.
Per Brown J. (dissenting): The Quebec Court of Appeal was right to intervene in the discretionary decision of the Quebec Superior Court and grant the requested stay. The appeal should be dismissed.
There is agreement with the majority that the Superior Court erred in concluding that none of the threshold conditions of art. 3137 C.C.Q. for the exercise of the discretion were met. However, the majority fails to address the Superior Court’s error of law with respect to the subject of an action, which directly affected that court’s conclusions relating to the condition of first filing with the foreign authority. These errors had a determinative impact on the Superior Court’s decision to decline to stay its ruling.
There is also disagreement with the majority regarding the Superior Court’s exercise of its discretion. The discretion conferred on the Quebec authority by art. 3137 C.C.Q. has two purposes. First, it is intended to prevent abusive forum shopping, a practice that would on the contrary be encouraged if the Quebec authority systematically deferred to a first filing with a foreign authority. Second, the international lis pendens exception is also intended to avoid a multiplicity of proceedings and a risk of conflicting judgments. The Superior Court erred in ruling out this risk when it found that the claims concerning the partition of the family patrimony and the compensatory allowance had been submitted to the Quebec court first and that the Cour d’appel de Bruxelles could also order a stay with respect to the claims that have been submitted to the Belgian court first. The Superior Court should not have disregarded as it did the risk of conflicting judgments being rendered by the Quebec and Belgian courts. That was an error of law. The discretion provided for in art. 3137 C.C.Q. cannot be exercised without giving serious consideration to the very purpose of this article, which is to avoid conflicting judgments.
The courts and the authors recommend that the criteria developed in the context of the doctrine of forum non conveniens be applied to international lis pendens cases. These criteria must be assessed from the specific perspective of art. 3137 C.C.Q., which is not the same as that of art. 3135 C.C.Q. The legislature has provided that the Quebec court’s power to decline to exercise its jurisdiction on the basis of forum non conveniens is exceptional in nature. In contrast, ordering a stay in a case of international lis pendens under art. 3137 C.C.Q. is not exceptional; in a spirit of cooperation based on international comity, Quebec courts are in fact quite open to doing so. Accordingly, it is not necessary to establish that the foreign authority is clearly more appropriate, as is the case in the context of forum non conveniens. In the context of international lis pendens, it is enough to show that the foreign authority is an appropriate forum.
The Superior Court also erred on the issue of the law applicable to the revocation of gifts, that is, on the main issue on which the parties disagree. Contrary to the Superior Court’s conclusion, under the Quebec rules of private international law, Belgian law is the law applicable to the revocation of the gifts, at least in respect of the gifts that were given while the parties were residing in Belgium.
Finally, the Superior Court did not consider the fact that an eventual Quebec judgment liquidating the parties’ matrimonial regime would not be susceptible of recognition in Belgium, where the parties still own numerous assets. Where, as in this case, a foreign authority to which a dispute was submitted first is an appropriate forum, the Quebec authority should be circumspect in exercising its discretion to not stay its ruling. First, if the Quebec authority declines to stay its ruling, it and the foreign authority could render conflicting judgments, and the Quebec proceedings could prove to be pointless in the event that the foreign authority to which the dispute was submitted first rendered its decision before the Quebec court. Second, if the Quebec authority were to exercise its discretion not to stay its ruling, there might then be a real risk that the Quebec decision would not be susceptible of recognition by the foreign authority to which the dispute was submitted first specifically because of the Quebec authority’s violation of the lis pendens rule. In this case, the fact that a Quebec decision is not recognized in another country is an important factor, as the parties have numerous assets in Belgium, which means that a Quebec judgment that cannot be recognized in that country could be of no effect in respect of those assets. It makes no sense for a Quebec court to partition the numerous assets located outside Quebec, given that the resulting judgment would not be susceptible of recognition at the place where the assets are located.
Cases Cited
By Gascon J.
Applied: Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, [2012] 1 S.C.R. 636; referred to: Oppenheim forfait GMBH v. Lexus maritime inc., 1998 CanLII 13001; Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Droit de la famille — 143160, 2014 QCCA 2290; Valois v. Caisse populaire Notre‑Dame de la Merci (Montréal), [1995] R.D.J. 609; Birdsall Inc. v. In Any Event Inc., [1999] R.J.Q. 1344; Samson v. Banque Canadienne Impériale de Commerce, 2010 QCCA 604; M.I.B. v. M.‑P.L., 2005 QCCA 1023, [2005] R.J.Q. 2817; Barer v. Knight Brothers LLC, 2019 SCC 13, [2019] 1 S.C.R. 573; Mutual Trust Co. v. St‑Cyr (1996), 144 D.L.R. (4th) 338; Resorts International Hotel Inc. v. Auerbach (1991), 89 D.L.R. (4th) 688; Marble Point Energy Ltd. v. Stonecroft Resources Inc., 2009 QCCS 3478, aff’d 2011 QCCA 141; Droit de la famille — 08689, 2008 QCCA 549; Droit de la famille — 1466, [1991] R.D.F. 492; Droit de la famille — 072464, 2007 QCCS 4822, [2007] R.D.F. 817; Gauvin v. Rancourt, [1953] R.L. 517; Droit de la famille — 151172, 2015 QCCS 2308; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Cormier, Cohen, Davies, Architectes, s.e.n.c. v. Bizzotto, 2009 QCCA 513; Bell v. Molson, 2008 QCCS 992; Melley v. Toyota Canada inc., 2011 QCCS 1229; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Lebrasseur v. Hoffmann‑La Roche ltée, 2011 QCCS 5457; Bombardier inc. v. Fastwing Investment Holdings Ltd., 2010 QCCS 6665, aff’d 2011 QCCA 432; Boucher v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; Rudolf Keller SRL v. Banque Laurentienne du Canada, 2003 CanLII 34078; Lac d’amiante du Québec ltée v. 2858‑0702 Québec inc., 1997 CanLII 9037.
By Abella J.
Considered: Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; referred to: Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Birdsall Inc. v. In Any Event Inc., [1999] R.J.Q. 1344; Moge v. Moge, [1992] 3 S.C.R. 813; Bracklow v. Bracklow, [1999] 1 S.C.R. 420.
By Brown J. (dissenting)
Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Roberge v. Bolduc, [1991] 1 S.C.R. 374; Pesant v. Langevin (1926), 41 B.R. 412; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; P. (S.) v. R. (M.), [1996] 2 S.C.R. 842; Lacroix v. Valois, [1990] 2 S.C.R. 1259; Droit de la famille — 112606, 2011 QCCA 1554; Droit de la famille — 977, [1991] R.J.Q. 904; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Droit de la famille — 10829, 2010 QCCA 713, [2010] R.D.F. 201; Droit de la famille — 2561, [1997] R.D.F. 3; Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Oppenheim forfait GMBH v. Lexus maritime inc., 1998 CanLII 13001; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; Boucher v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Birdsall Inc. v. In Any Event Inc., [1999] R.J.Q. 1344; 2493136 Canada inc. v. Sunburst Products Inc., 1996 CanLII 4459; Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666; Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, [2016] 1 S.C.R. 851.
Statutes and Regulations Cited
Act to amend the Civil Code of Québec and other legislation in order to favour economic equality between spouses, S.Q. 1989, c. 55.
Canadian Charter of Rights and Freedoms, s. 15 .
Civil Code of Québec, arts. 391, 392, 394, 414, 416, 427, 513, 514, 521, 585, 599 et seq., 2803, 3081, 3089, 3111 to 3113, 3135, 3137, 3155, 3158, 3167 para. 1.
Code civil (Belgium), art. 1096.
Code of Civil Procedure, CQLR, c. C‑25.01, art. 168.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), ss. 16 , 22(1) .
Loi portant le Code de droit international privé (Belgium), arts. 14, 25(6), 48(1), 49, 51.
Treaties and Other International Instruments
Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S. 1982 No. 31, art. 16(1)(c), (h).
European Communities. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, Official Journal of the European Union, vol. 46, L 338, art. 8.
European Communities. Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, Official Journal of the European Union, vol. 52, L 7, art. 3(c).
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 1525 U.N.T.S. 195, art. 5.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 16(1).
Authors Cited
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Glenn, H. Patrick. “Droit international privé”, dans La réforme du Code civil, t. 3, Priorités et hypothèques, preuve et prescription, publicité des droits, droit international privé, dispositions transitoires. Textes réunis par le Barreau du Québec et la Chambre des notaires du Québec. Sainte‑Foy, Que.: Presses de l’Université Laval, 1993, 669.
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Goldstein, Gérald, et Ethel Groffier. Droit international privé, t. I, Théorie générale. Cowansville, Que.: Yvon Blais, 1998.
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Sabourin, Frédérique. “Motifs permettant de ne pas exercer la compétence: forum non conveniens et litispendance internationale”, dans JurisClasseur Québec — Collection droit civil — Droit international privé, par Pierre‑Claude Lafond, dir. Montréal: LexisNexis, 2012, fascicule 9 (feuilles mobiles mises à jour juin 2019, envoi no 12).
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Talpis, Jeffrey A. L’accommodement raisonnable en droit international privé québécois. Montréal: Thémis, 2009.
Talpis, Jeffrey A. “Quelques réflexions sur le champ d’application international de la loi favorisant l’égalité économique des époux”, [1989] 2 C.P. du N. 135.
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Talpis, Jeffrey A., and Shelley L. Kath. “The Exceptional as Commonplace in Quebec Forum Non Conveniens Law: Cambior, a Case in Point” (2000), 34 R.J.T. 761.
Talpis, Jeffrey A., with the collaboration of Shelley L. Kath. “If I am from Grand‑Mère, Why Am I Being Sued in Texas?” Responding to Inappropriate Foreign Jurisdiction in Quebec‑United States Crossborder Litigation. Montréal: Thémis, 2001.
Tétrault, Michel. Droit de la famille, vol. 1, 4e éd. Cowansville, Que.: Yvon Blais, 2010.
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APPEAL from a judgment of the Quebec Court of Appeal (Dufresne and Kasirer JJ.A. and Ouellet J. (ad hoc)), 2017 QCCA 1470, [2017] AZ‑51428714, [2017] J.Q. no 13361 (QL), 2017 CarswellQue 8510 (WL Can.), setting aside a decision of Hallée J., 2016 QCCS 3357, [2016] AZ‑51305977, [2016] J.Q. no 8360 (QL), 2016 CarswellQue 6605 (WL Can.). Appeal allowed, Brown J. dissenting.
Martin Poulin, Myriam Simard and Molly Krishtalka, for the appellant.
Jessica Harding and Julien Hynes‑Gagné, for the respondent.
No one appeared for the intervener the Attorney General of Quebec.
English version of the judgment of Wagner C.J. and Moldaver, Karakatsanis, Gascon and Martin JJ. delivered by
Gascon J. —
I. Overview
[1] Three days. That short difference is the reason why the issue of the scope and application of the international lis pendens exception in Quebec private international law has come up in this case. This issue arises in the context of divorce proceedings between the parties in Belgium and in Quebec.
[2] The respondent, P.R. (“the husband”), filed for divorce in Belgium, in the court of first instance of Brussels, on August 12, 2014. The appellant, R.S. (“the wife”), filed for divorce in Quebec, in the Superior Court, on August 15, 2014. In the same month, the husband applied to the Superior Court under art. 3137 of the Civil Code of Québec (“C.C.Q.”) to stay its ruling on the wife’s proceedings in Quebec. In October 2014, under Belgian law, the husband revoked, in a letter, all the gifts he had given his wife during their marriage. He drew up a non‑exhaustive list in which those gifts were valued at over $33 million.
[3] The Superior Court — which considered that it would not be possible to recognize in Quebec a decision of a Belgian court based on the provision of Belgium’s Code civil under which the gifts in question could be revoked, because that provision is discriminatory — held that the wife’s divorce proceedings in Quebec should not be stayed. The Court of Appeal reversed that judgment, finding that it would be premature to conclude at that time that a Belgian decision with respect to the revocation of the gifts could not be recognized in Quebec. In the Court of Appeal’s opinion, the trial judge had also made an error that had caused her analysis concerning the appropriateness of exercising her discretion to order a stay to be unreasonable. The Court of Appeal therefore ordered that the wife’s proceedings in Quebec be stayed with the exception of those on the issue of corollary relief — child custody, support obligations and use of the family residence — which had been submitted only to the Quebec authorities.
[4] In this appeal, this Court must first consider the conditions for the application of art. 3137 C.C.Q., which establishes the exception of international lis pendens in Quebec private international law, and in particular the condition of susceptibility of recognition of a foreign decision in Quebec. After that, the Court must turn to the principles for exercising the discretion the Quebec authorities have where that article does apply.
[5] In my opinion, the conditions for the application of art. 3137 C.C.Q. are met in this case. The husband has discharged his burden of establishing that it is possible that the eventual decision of the Belgian court will be susceptible of recognition in Quebec. However, I am of the view that the Court of Appeal’s intervention in the exercise of the trial judge’s discretion was unwarranted. Although I do not agree with the trial judge’s analysis in every respect, I find that it was open to her to conclude that it was appropriate to decline to order a stay as she did in the circumstances of this case. I would therefore allow the wife’s appeal and restore the trial judge’s conclusion on dismissing the husband’s application for a stay.
II. Background
[6] The husband and the wife first met in Paris in the 1990s. The wife was a Moroccan national and the husband, a French national. Two children, born in 1997 and 2002, resulted from their relationship.
[7] The husband and the wife are wealthy individuals who have extensive investments in a number of countries. They left France for tax purposes in 2004, moving to Brussels, Belgium. They married there on December 21, 2004 after signing a marriage contract before a notary on December 13. In that contract, the couple opted for the regime of separation of property.
[8] In 2012, all the members of the family obtained Belgian nationality, and the husband definitively renounced his French nationality. That same year, the parties also took steps to obtain citizenship in St. Kitts and Nevis. In addition, the family had been considering the possibility of immigrating to Quebec since 2008. This led the parties to acquire a luxury property in Quebec in 2013 and to move there with their children in July of that year. Ultimately, the husband and wife established their family residence there.
[9] In 2014, the couple’s relationship deteriorated. On August 3 of that year, when they were on vacation at their secondary residence in Belgium, the wife told the husband that she had decided to terminate their union. Less than two weeks later, two applications for divorce were brought, one by the husband in Belgium on August 12, and the other by the wife in Quebec on August 15.
[10] In his proceedings in the Belgian court, the husband essentially sought a judgment granting a divorce and liquidation of the matrimonial regime. He also asked the court to rule on whether the Belgian courts had jurisdiction over the case as well as on the law applicable to the divorce, to the liquidation of the matrimonial regime, to the revocation of the gifts, and to the compensatory allowance should the wife make such a request in Belgium. As for the wife, aside from a judgment granting a divorce and liquidation of the matrimonial regime, she asked the Quebec court to rule on child custody, on support for her and for the children, on partition of the family patrimony and on the payment of a compensatory allowance. All the wife’s claims were made under Quebec law.
[11] On August 20, 2014, the husband countered the proceedings brought by the wife in Quebec by bringing the motion to dismiss and for a stay that is the subject of this appeal. He asked the Superior Court to stay its ruling on the dispute between himself and his wife on the basis of international lis pendens under art. 3137 C.C.Q. He also asked the Quebec court to decline jurisdiction on the basis of forum non conveniens under art. 3135 C.C.Q.
[12] The husband subsequently notified the wife on October 17, 2014, citing art. 1096 of the Belgian Code civil, that he was revoking all the gifts he had given her while they were married. Article 1096, which provides that spouses may at their discretion revoke any gifts given in the course of their marriage, reads as follows:
[translation]
1096. Any gifts between spouses that are given while they are married otherwise than by marriage contract shall, even if described as gifts inter vivos, be revocable at all times.
. . .
Such gifts may not be revoked by reason of the arrival of children.
[13] In his letter, the husband listed the revoked gifts by categories: cash gifts (CAN$16.2 million), assignments of claims (CAN$695,000), stock‑exchange securities (CAN$1.4 million), jewellery and watches (CAN$6 million), valuable bags (CAN$2.08 million), collector shawls (CAN$3.6 million), the car (CAN$98,000) and a half‑share of immovable property (CAN$3.55 million). In this regard, he said that he was revoking the gift of half the value of the family residence in Quebec, which was valued at CAN$6.6 million. He also mentioned that the list was not exhaustive and that this was only the first part of the gifts he intended to revoke. As the Superior Court and the Court of Appeal noted, it is because of this revocation that the choice of forum is the main issue of the litigation between the parties.
[14] In parallel with the application for a stay filed by the husband in Quebec, the wife filed a similar application with the Belgian authorities. She submitted, in particular, that the Belgian court should declare that it did not have jurisdiction to rule on the divorce and the liquidation of the matrimonial regime. In the alternative, she asked that court to stay its ruling pending the decision of the Quebec court in the matter, arguing that Quebec law applied to all the claims. Should the Belgian court decide to apply Belgian law to the revocation of the gifts, she intended to apply for a declaration that art. 1096 of that country’s Code civil is unconstitutional.
[15] The Belgian court of first instance rendered its