The International Lis Pendens Exception In Quebec Private International Law At The Dawn Of 2020

In the context of parallel divorce applications,1 the Supreme Court of Canada has revisited the criteria applicable to the international lis pendens exception in private international law under article 3137 of the Civil Code of Québec (“CCQ”). The Court reminds us of the importance of the discretion given to the trial judge.

Summary of the Facts

A woman and a man were married in Belgium on December 21, 2004. Their relationship deteriorated throughout 2014 and both filed for divorce, the husband in Belgium on August 12, 2014 and the wife in Québec only three days later.

The husband asked the Superior Court to stay the proceedings on the divorce application brought by the wife in Québec due to international lis pendens under article 3137 CCQ. The husband preferred the forum of Belgium, as it would have allowed him, among others, some hope of obtaining the revocation of gifts, having a value of $33 million, given to his wife during the marriage.

The Superior Court dismissed the husband's request for a stay on the basis that a decision rendered by the Belgian court, in particular with respect to the question of the revocation of gifts made in the course of the marriage, could not be recognized in Québec because it was contrary to public order.

The Québec Court of Appeal reversed the Superior Court's decision by concluding that the trial judge had erred in his assessment of the last criterion of article 3137 CCQ. According to the Court, in the context of the analysis under articles 3137 and 3155(5) CCQ, it is not necessary to assess the conformity of the foreign law2, but rather to base the analysis on the result of the decision. The Court of Appeal therefore concludes that the criterion of susceptibility to recognition is met in this case. Consequently, it ordered a stay of proceedings on the divorce application in Québec.

In its decision, the Supreme Court recognized that the criteria for international lis pendens were not met, but refused the stay because no reason existed to contradict the discretionary power of the trial judge.

Analysis and Commentary

We retain four elements of this recent decision by the Supreme Court of Canada:

Appellate courts must show great deference to a discretionary decision rendered by a trial judge; The burden rests on the shoulders of the applicant requesting the stay under article 3137 CCQ; The criterion of articles 3155 (5) and 3137 CCQ consists to evaluate if the foreign decision is susceptible to be...