Décision

[1]                The appellants appeal against a judgment rendered on August 4, 2021, by the Superior Court, district of Terrebonne (the Honourable Mr. Justice Jean-François Michaud),[1] which partially granted the respondents’ declinatory exception. In essence, the judge dismissed the portion of the appellants’ originating application which has no connection to the only immovable property in the disputed estate situated in Quebec, while deciding that the courts of Quebec will retain jurisdiction to rule on the allegations pertaining to undue influence and to the validity of the wills affecting said immovable property.

[2]                A few words regarding the context are in order in this unending judicial saga.

[3]                The appellants, Sasha DiGiulian and John Charles DiGiulian, are the grandchildren of Rita E. DiGiulian (the “Deceased”), who died on January 27, 2017, in Virginia. The Deceased had four children, including John DiGiulian, the appellants’ father, who passed away on June 29, 2014, and the impleaded parties, Robert DiGiulian, Leonard DiGiulian and respondent Diane Louise Wagner.

[4]                In November 2018, the appellants instituted proceedings seeking to invalidate the will signed by the Deceased on April 29, 2015 and pertaining to the Deceased’s movable and immovable property situated in Canada. In their conclusions, they also asked, in particular, that respondent Diane Louise Wagner be declared unworthy of inheriting from the Deceased, that respondent Patricia Anne Greene be replaced as liquidator of the estate and that she be ordered to render an account of the administration of the estate.

[5]                The Deceased’s only alleged Canadian asset is an immovable property located at 147 Nansen, in Mont-Tremblant, of which she was a co-owner with her son, John, the appellants’ father. Upon the latter’s death, his wife, Andrea Lynne DiGiulian, inherited his share of the immovable property.

[6]                This immovable property was the subject of a previous dispute in which respondent Patricia Anne Greene, as liquidator of the estate, had sought the partition of the immovable property. In that case, Andrea Lynne DiGiulian had replied with a cross-application in which she had argued that the immovable property was not part of the Deceased’s estate because the Deceased had gifted her share to her son John, who had become its sole owner. The estate’s application was granted on March 12, 2020, and the cross-application was dismissed. The immovable property is therefore owned in equal shares by the estate and by Andrea Lynne DiGiulian.[2] On April 19, 2022, this Court dismissed the appeal from that judgment.[3]

[7]                Concurrently with that case, the appellants instituted the present proceedings in order to have the will dated April 29, 2015 invalidated. In the initial pleadings, it was argued that the applicable will is the one signed on March 21, 2013, in Virginia, which will pertains to the Deceased’s property located in Canada and in Italy. The proceedings were instituted in the district of Terrebonne because of the situs of the immovable property. On March 8, 2019, Élise Poisson, J.S.C., dismissed the respondents’ application for a declinatory exception, which had sought to have the matter transferred to the district of Montreal.

[8]                The appellants subsequently amended their application twice, to seek the nullity of various other written instruments signed by the Deceased: the will signed in 2013 respecting Canadian and Italian assets (2013 Canada); another will signed in 2013, this one respecting assets situated in the United States; a trust signed in 2013; a will signed in 2012; a will signed on July 28, 2011, respecting property situated in Canada and in Italy; and, lastly, a will signed on July 15, 2011, respecting the entire estate.

[9]                On December 14, 2020, after having received the parties’ written submissions, the judge split the proceedings into two, one part dealing with the validity of the 2015 and 2013 wills (Canada), and the other part dealing with the other written instruments. He also suspended the proceedings with respect to the latter written instruments, since those proceedings required the adjudication of jurisdictional issues. Leave to appeal from that judgment was denied on February 12, 2021.

[10]           In April 2021, as had been agreed during a case management conference, respondent Diane Louise Wagner filed an application to dismiss the suspended portion of the proceedings on the basis of a declinatory exception. It is this application that the judgment under appeal granted in part.

[11]           On November 16, 2021, our Court granted the appellants’ application for leave to appeal after the expiry of the time limit, except on the second ground of appeal, which dealt with res judicata regarding a prior judgment rendered by Élise Poisson, J.S.C. and which was rejected because it was doomed to fail.

* * *

[12]           The only issue on appeal is the jurisdiction of Quebec courts to rule on the validity of the impugned wills in the portion of the file that was suspended. The resolution of this issue rests primarily on the application of article 3153 of the Civil Code of Québec,[4] which reads as follows:

[13]           In the case at bar, no one is contesting the fact that none of the factors set out in the first paragraph apply. Thus, the Superior Court can have jurisdiction only by virtue of the second paragraph. The issue is whether this jurisdiction extends to the entire estate—and to the validity of all the testamentary instruments—or whether it is limited solely to the item of property situated in Quebec.

[14]           Relying on the majority opinion expressed in the doctrine, the judge chose the second option and concluded that, under art. 3153 para. 2 C.C.Q., the jurisdiction of Quebec courts is limited to the transmission or devolution of property situated in Quebec. The judge added that, in the case at bar, such a conclusion is all the more evident since the Deceased voluntarily made separate wills for, on the one hand, her U.S. assets and, on the other hand, her Canadian and Italian assets. In such a case, it would be illogical to give Quebec courts jurisdiction over the first group of assets.

[15]           The judge therefore ruled that Quebec courts have jurisdiction only over the validity of the 2015 and 2013 wills (Canada)—which were not affected by the suspension—and over the validity of the July 28, 2011 will, which deals with the Canadian assets, and the July 15, 2011 will, which deals with the entire estate. Notwithstanding this conclusion, the judge also ruled that even if he did, in fact, have jurisdiction to determine the validity of the other written instruments, he would have declined that jurisdiction under art. 3135 C.C.Q.

[16]           In their written arguments, the appellants argue every which way, using all possible means. Under one or the other of their grounds of appeal, they argue that the judge erred (1) by splitting the proceedings—a decision made not in the judgment under appeal, but in another judgment for which leave to appeal was denied; (2) by failing to consider art. 3139 C.C.Q.; (3) by partially dismissing the proceedings prematurely when information is yet to be received regarding the other Canadians assets; (4) by failing to consider the existence of assets located elsewhere and of transactions involving those assets; or (5) by rendering a decision that runs counter to the principle of proportionality and risks giving rise to contradictory judgments.

[17]           A large number of these grounds can be summarily rejected. That is so regarding the allegedly premature dismissal, since there is nothing in the record that establishes, or even suggests, the existence of other assets situated in Quebec that could confer additional jurisdiction on the Superior Court. As for the allegation of assets situated elsewhere in Canada or abroad, if the judge’s interpretation of art. 3153 C.C.Q. is upheld, that allegation cannot confer jurisdiction on the courts of Quebec.

[18]           The argument regarding proportionality or the risk of contradictory decisions is no more convincing. First, either a court has jurisdiction or it does not.[5] Neither the principle of proportionality nor arguments based on expediency, efficiency, and even the sound administration of justice, can give a court jurisdiction where it has none,[6] save, perhaps, pursuant to an analysis under art. 3136 C.C.Q., which was not raised here.[7] In any event, the case management judge mentioned, in a decision dated December 14, 2020, that in the case at bar, these arguments would not suffice to confer jurisdiction on the Quebec courts even if it was possible.

[19]           As for the risk of contradictory judgments, although it is true that the issues of capacity and undue influence are, for the most part, questions of fact and evidence, such matters are governed by legal rules, whether regarding the burden of proof or the validity of written instruments. That said, the law governing the property situated abroad and the law governing the item of property situated in Quebec is not the same (art. 3098 C.C.Q.). The risk of a different outcome, if any, stems from the application of several legal systems and from the Deceased’s choice. Strictly speaking, therefore, there can be no contradictory judgments.

[20]           On closer examination, the appeal thus essentially raises two questions: (1) Is the jurisdiction conferred on the Quebec courts by art. 3153 para. 2 C.C.Q. limited to the property situated in Quebec or does it extend to the entire estate? (2) If jurisdiction extends to the entire estate, in the case at bar should jurisdiction be declined under art. 3135 C.C.Q.?

[21]           We begin with the first question, which does not have a settled jurisprudential answer, as the various decisions submitted by the parties are not conclusive.

[22]           While in Godin[8] the judge seems to have limited the court’s jurisdiction under art. 3153 C.C.Q. to the assets situated in Quebec, this interpretation was stated in very general terms. As for the decision in Ferretti,[9] the judge did not rule on the issue and our Court held that, in any event, there was an absence of any actual evidence that some assets were situated in Quebec.[10] Lastly, the appellants rely heavily on the decision in Reklitis.[11] That decision, however, is not truly helpful in the instant case. Not only did it deal with a bankruptcy matter, but in it, the court refused to partially decline its jurisdiction on the basis of the doctrine of forum non conveniens set out in art. 3135 C.C.Q. In the case at bar, the very issue is whether the court does indeed have jurisdiction, which is a prerequisite for the application of art. 3135 C.C.Q. Thus, Reklitis would be relevant only for purposes of the second question.

[23]           Turning now to the commentary, we note that with the exception of one author, doctrinal writers are of the opinion that jurisdiction under art. 3153 para. 2 C.C.Q. should be limited to the property situated in Quebec. In that regard, upon the enactment of the Civil Code of Québec, Professors Talpis and Castel wrote:[12]

460. Enfin, le dernier alinéa de l’article 3153 crée une compétence limitée aux biens situés au Québec. Quoique cette idée aille à l’encontre de l’unité de la succession, il faut reconnaître que la situation au Québec de quelques biens ne doit pas permettre au juge québécois de régler toute la succession, car celle-ci n’a pas un lien suffisant avec le Québec.

[24]           This opinion was subsequently adopted by Professors Emmanuelli,[13] Vézina[14] and Groffier,[15] as well as by Professors Ferland and Laganière.[16]

[25]           Only Professor Goldstein is of the opinion that art. 3153 para. 2 C.C.Q. confers jurisdiction on Quebec courts over not only the property situated in Quebec, but over the entire estate. In support of his opinion, he points out that the wording of art. 3153 para. 2 C.C.Q. does not make a distinction, unlike art. 3154 C.C.Q. does with respect to matrimonial regimes. He also refers to the principle in Quebec law that favours the unity of successions, to the practical efficiency of this approach since it allows a single authority to adjudicate the entire estate, and to the fact that the situations set out in art. 3153 para. 1 C.C.Q. confer jurisdiction on the courts to rule on property situated abroad.[17] Finally, he argues that art. 3139 C.C.Q., which states that jurisdiction over the principal demand confers jurisdiction over incidental demands or cross demands, also favours this approach.[18]

[26]           It should be noted that Professor Goldstein does, however, acknowledge that such an interpretation could give rise to difficulties in enforcing the judgment, because the court of the foreign property’s situs could determine that it alone has jurisdiction over the property. For this reason, he is of the view that, in such circumstances, it may be appropriate for the Quebec court to decline jurisdiction under art. 3135 C.C.Q.[19]

[27]           Let us consider the foregoing.

[28]           In accordance with the teachings of the Supreme Court in Spar Aerospace,[20] this Court recently stated the following regarding the interpretation of the private international law provisions:[21]

[45]        Les principes généraux d’interprétation du Code civil s’appliquent aux dispositions de droit international privé du livre dixième du Code civil du Québec (les articles 3076 à 3168 C.c.Q.). On s’intéressera tout d’abord au libellé des dispositions, lesquelles doivent s’interpréter comme un tout cohérent. On vérifiera ensuite si l’interprétation est compatible avec les principes de courtoisie, d’ordre et d’équité qui, sans constituer des règles contraignantes, peuvent servir de guide. La Cour suprême rappelle que le « système de droit international privé vise à assurer la présence d’un ʺlien réel et substantielʺ entre l’action et la province de Québec, et à empêcher l’exercice inapproprié de la compétence du for québécois ».

[References omitted]

[29]           Applying these principles, the Court is of the opinion that it is appropriate to limit the jurisdiction of the courts of Quebec under art. 3153 para. 2 C.C.Q. to the assets situated in Quebec. Here are the reasons why.

[30]           First, the wording of the article supports this interpretation, even if it is true that the matter is not mentioned explicitly. Admittedly, according to the text of the second paragraph, the jurisdiction of Quebec courts depends on the situs of the property, but this is so only insofar as the devolution or transmission of the property requires adjudication. Thus, there is nothing in the instant case here that can be used to confer jurisdiction on the Quebec courts over the validity of wills that do not pertain to or affect the devolution of the property situated in Quebec. Moreover, if the Legislature had wanted the presence of a single item of property to confer jurisdiction on the Quebec courts over the entire estate based on the principle of unity of the succession, it would quite simply have added this reason to those set out in the first paragraph. Instead, it dealt with the situs of the property in a separate paragraph.

[31]           The principles of comity and order also support this approach, because a Quebec judgment over property situated abroad might not be recognized in the foreign jurisdiction. While such a problem could indeed be settled by applying art. 3135 C.C.Q., as Professor Goldstein suggests, when the jurisdiction itself is uncertain it can also justify a narrow interpretation of that jurisdiction so as to avert the problem before it arises.

[32]           Additionally, such an interpretation is consistent with art. 3098 C.C.Q., which specifies not only that the law governing immovable property is the law of its situs, but limits the testator’s designation of the applicable law based on the situs of the immovable property to only that particular immovable. That said, although the connection between the jurisdiction of the Quebec courts and the governing law is not determinative, it is relevant, as it is one of the criteria on which the jurisdiction of the Quebec courts can be based under art. 3153 para. 1 C.C.Q.

[33]           As for art. 3139 C.C.Q., it is not helpful for interpreting art. 3153 C.C.Q. It is limited in scope precisely so as to not “indirectly enlarge the international jurisdiction of the Quebec authority contrary to the specific provisions relating to the definition of its jurisdiction and the general principles that underlie that jurisdiction”.[22] Moreover, its application is not automatic.[23]

[34]           Lastly, while a narrow interpretation of art. 3153 para. 2 C.C.Q. is admittedly contrary to the principle of unity of the succession, that unity can be preserved by using art. 3135 C.C.Q. In the case at bar, as the judge in fact mentioned, a party could have asked the Superior Court to decline its jurisdiction over the property situated in Quebec and over the validity of the written instruments related to that property so that a U.S. court could rule on the validity of all the written instruments. That, however, was not done.

[35]           For these reasons, the trial judge was right to limit his jurisdiction to the validity of the written instruments dealing with the devolution of the Mont-Tremblant home. Given the answer to the first question, there is no need to consider the second one.

[36]           In closing, the Court wishes to emphasize that this case, which was initiated in 2018, must move forward quickly and that it is up to all the parties to act in accordance with the guiding principles of procedure, particularly that of proportionality.

FOR THESE REASONS, THE COURT:

[37]           DISMISSES the appeal, with legal costs.

[1]  Digiulian v. Greene (Succession de Digiulian), 2021 QCCS 3296 [judgment under appeal].

[2]  Greene (Succession de Digiulian) v. Digiulian, 2020 QCCS 899.

[3]  Digiulian v. Succession de Digiulian, 2022 QCCA 531.

[4]  See also article 46 C.C.P., which reads as follows:

[5]  Association des intervenants en dépendance du Québec c. Villeneuve, 2021 QCCA 1763, para. 40.

[6]  Autorité des marchés financiers c. Baazov, 2022 QCCA 861, para. 30.

[7]  Otsuka Pharmaceutical Company Limited c. Pohoresky, 2022 QCCA 1230, para. 11.

[8]  Godin (Succession de), 2012 QCCS 3806, para. 15.

[9]  Ferretti Art Establishment et Chiassi, 2016 QCCS 3470.

[10]  Tailor v. Chiassi, 2018 QCCA 1067.

[11]  Reklitis (Syndic de), [1996] R.J.Q. 3035 (Sup. Ct.).

[12]  J. A. Talpis and J-G. Castel, “Interprétation des règles du droit international privé”, in Barreau du Québec et Chambre des notaires du Québec, La réforme du Code civil, vol. 3, “Priorités et hypothèques, preuves et prescriptions, publicité des droits, droit international privé, dispositions transitoires”, Sainte-Foy, Presses de l’Université Laval, 1993, 801, p. 910, no. 460.

[13]  Claude Emmanuelli, Droit international privé québécois, 3rd ed., Montreal, Wilson & Lafleur, 2011, p. 207, no. 135.

[14]  Édith Vézina, “Les successions en droit international privé québécois”, (2010) 112 R. du N. 393, p. 398.

[15]  Ethel Groffier, “Le nouveau droit international privé des successions”, in Ernest Caparros (ed.), Mélanges Germain Brière, Montreal, Wilson & Lafleur, 1993, 155, p. 178.

[16]  Ferland, Patrick and Laganière, Guillaume, “Le droit international privé”, in École du Barreau du Québec, Collection de droit 2022-2023, vol. 7, “Contrats, sûretés, publicité des droits et droit international privé”, Montreal, Yvon Blais, 2022.

[17]  Gérald Goldstein, Droit international privé : compétences internationales des autorités québécoises et effets des décisions étrangères (art. 3134 à 3168 C.c.Q.), vol. 2, Cowansville, Yvon Blais, 2013, no. 3153-560.

[18]  Gérald Goldstein, “Successions internationales”, in JurisClasseur Québec, vol. “Droit international privé”, Montreal, Lexis Nexis, 2012, (loose-leaf sheets, update no. 18, June 2022), Fascicule 22, no. 69.

[19]  G. Goldstein, supra, note 17.

[20]  Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, paras. 21 and 23.

[21]  Droit de la famille — 211290, 2021 QCCA 1123.

[22]  GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, para. 29.

[23]  Id., para. 32.