Court of Appeal of Quebec

Droit de la famille - 172244

September 29, 2017


Dufresne, Kasirer, Ouellet (Ad Hoc)

Appeals from a judgment of the Superior Court dismissing a motion to dismiss for lis pendens and refusing to stay the proceedings. The main appeal is allowed and the incidental appeal is dismissed.

The parties were married in Belgium in 2004 and lived there until 2013, when they settled permanently in Quebec. During a trip to Belgium in 2014, the wife informed her husband that she wanted a divorce. The husband brought divorce proceedings in Belgium and the wife brought hers a few days later in Quebec. The parties’ respective proceedings, which principally seek a divorce, overlap as to the sharing of assets and corollary measures. The trial judge found that the Quebec courts had jurisdiction to render the parties’ judgment of divorce and determine the ensuing corollary relief. She refused to stay the proceedings until a judgment between the same parties was rendered by the Cour d’appel de Bruxelles. 

Because the ordinary residence, thus the domicile, of the parties and their children was in Quebec when the proceedings were brought, Quebec courts have jurisdiction to order the divorce and decide any other related applications. Also, given that the parties are Belgian nationals, the Belgian courts also have jurisdiction. While Belgium was the first jurisdiction to be seized of the dispute between the parties, the triple identity rule – that is, the same parties, the same facts at the heart of the two actions, and the same object – is met. Contrary to the judge’s conclusion, it is far from certain that the Belgian judgment will not be recognized in Quebec. Specifically, if a Belgian court applies Canadian divorce law, s. 22(1) of the Divorce Act (R.S.C. 1985, 2nd suppl., c. 3) will not prevent the judgment rendered from being recognized. If Belgian law is applied, while there is a risk that the court will apply  the principle that gifts between spouses are revocable and confirm the constitutional validity of the provision at issue, it cannot be taken as proven. Finally, the judge used her discretionary power under art. 3137 of the Civil Code of Québec (C.C.Q.) unreasonably by refusing to stay the Quebec proceeding. She failed to consider the issue of a Quebec judgment being recognized in Belgium, which is a determinative error. Indeed, a Quebec judgment is not likely to be recognized because the Belgian jurisdiction was seized of the application first, and the Quebec judgment will be of no great value, especially since the Belgian court will order the divorce under Canadian law. With respect to the incidental appeal, art. 3167(1) C.C.Q. cannot be declared constitutionally invalid or inoperative under the doctrine of interjurisdictional immunity or federal paramountcy. That debate is moot because s. 22(1) of the Act, raised by the wife, does not apply to this case.

*Summary by SOQUIJ
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