A-20.1 - Act to secure the carrying out of the Entente between France and Québec respecting mutual aid in judicial matters

Full text
chapter A-20.1
Act to secure the carrying out of the Entente between France and Québec respecting mutual aid in judicial matters
ENTENTE RESPECTING MUTUAL AID IN JUDICIAL MATTERSDecember 22 1978December 22 1978
1. The Entente reproduced in the schedule, designated to promote mutual aid in judicial matters between France and Québec, is approved and has effect notwithstanding any provision of any general law or special Act or of any regulation thereunder.
1978, c. 20, s. 1.
2. The Government may, by regulation, specify the terms and conditions of the carrying out of the Entente.
The regulations is published in the Gazette officielle du Québec and comes into force on the date of that publication or any earlier or later date fixed by the regulation.
1978, c. 20, s. 2.
3. The Minister of Justice is responsible for the carrying out of this Act.
1978, c. 20, s. 3.
4. This Act has effect as from 9 September 1977.
1978, c. 20, s. 4.
5. (Omitted).
1978, c. 20, s. 5.
6. (This section ceased to have effect on 17 April 1987).
1982, c. 21, s. 1; U. K., 1982, c. 11, Sch. B, Part I, s. 33.
SCHEDULE

(Section 1)

ENTENTE BETWEEN QUÉBEC AND FRANCE REGARDING JUDICIAL MUTUAL AID
IN CIVIL, COMMERCIAL AND ADMINISTRATIVE MATTERS (TRANSLATION)


TITLE I

DESIGNATION OF CENTRAL AUTHORITIES

The ministries of Justice of France and Québec are designated
as the Central Authorities in charge of receiving applications
for judicial mutual aid in civil, commercial and administrative
matters and of dealing with them.
For that purpose, these Central Authorities communicate
directly with each other.
Applications for judicial mutual aid and the documents
attached thereto, as well as the documents attesting to their
execution are exempt from authentication or any similar formal
procedure. However, such documents must be so drawn up as to
make their authenticity apparent and, in particular, must bear
the official seal of the authority qualified to issue them.


TITLE II

TRANSMISSION AND DELIVERY OF JUDICIAL AND EXTRAJUDICIAL WRITTEN
PROCEEDINGS

1. Applications for service and notice of judicial and
extrajudicial written proceedings in civil, commercial and
administrative matters, intended for natural or legal
persons residing in France or in Québec, are forwarded through
the Central Authorities who are entrusted with dealing with
them.
2. The application indicates the authority issuing the
proceeding, the name and capacity of each party, the name and
address of the person for whom it is intended and the nature of
the proceeding.
The proceedings to be notified or served that are attached to
the application are sent in duplicate. The application and the
proceedings are drawn up in the French language or accompanied
with a translation in that language.
3. The petitioned authority confines itself to delivering the
proceeding to the person for whom it is intended by such means
as it considers most appropriate. Delivery or the attempt to
make delivery does not give entitlement to the reimbursement of
costs, even if the address of the person for whom the proceeding
is intended is insufficient, incomplete or inaccurate.
The petitioning authority may ask the petitioned authority to
undertake or order the service or notice of the proceeding in a
particular form consistent with the legislation of the
petitioned authority. The payment of the costs incurred by the
use of a particular form, especially by the intervention of a
law official, is incumbent on the petitioning authority.
4. Delivery is proved either by a receipt, dated and signed by
the person concerned, or by an attestation or certificate from
the petitioned authority. The receipt or attestation may appear
on one of the copies of the proceeding to be served or notified.
The attestation states the form, place and date of delivery, the
name of the person to whom the proceeding was delivered and,
where that is the case, the refusal of the person to whom it is
addressed to accept the proceeding or the fact that prevented
the delivery from being made.
The receipt or attestation, together with a copy of the
proceeding to be served or notified, may be addressed directly
to the applicant by the authority that drew it up, without the
intervention of the petitioning Central Authority.
5. The petitioned authority may refuse to act on an
application for notice or service if it considers that it might
entail interference in its public order or jurisdiction. If it
refuses to act, the petitioned authority informs the Central
Authority without delay, giving its reasons therefor.
6. In civil, commercial and administrative matters, the
preceding provisions do not impede
(a) the faculty of using diplomatic or consular channels to
carry out directly and without restraint the service of judicial
and extrajudicial written proceedings in keeping with the usages
obtaining between France and Québec;
(b) the faculty of giving notice of proceedings directly by
mail to persons in France or in Québec;
(c) the faculty of the persons interested in a judicial suit,
of having proceedings served or notified by law officials, civil
servants or other qualified persons in France or in Québec;
(d) the faculty of law officials, civil servants or other
qualified persons in France or in Québec of having proceedings
served or notified directly by law officials, civil servants or
other qualified persons in France or in Québec. For such
purpose, the proceeding may be transmitted directly, in France,
to the Chambre nationale des huissiers de justice in Paris and,
in Québec, to the Bureau de l’administration de la Loi sur les
huissiers de justice at the Ministère de la Justice in Québec,
with instructions to send them to a territorially competent
bailiff. In this case, the applicant must either pay the costs
of service in advance, in a lump sum, or make a written
undertaking to pay them.
7. Where, for the purposes of service or notification, it has
been necessary to transmit a writ of summons or an equivalent
proceeding to France or to Québec and where the defendant does
not appear, the judge may suspend his decision until it is
established that the proceeding has been served or notified.


TITLE III

TRANSMISSION AND EXECUTION OF ROGATORY COMMISSIONS

1. In civil, commercial and administrative matters, the French
and Québec judicial authorities, in conformity with the
provisions of their legislation, may give each other a rogatory
commission for the purpose of instituting the trial and judicial
proceedings they consider necessary, except proceedings for
execution or measures of conservation.
Such provision does not impede the faculty of executing
rogatory commissions through diplomatic or consular channels in
keeping with the usages obtaining between France and Québec.
2. A trial proceeding may be applied for so as to enable the
persons concerned to obtain grounds of proof in a future
proceeding, in conformity with the law of the petitioned
judicial authority.
3. Rogatory commissions are forwarded through the Central
Authorities in conformity with Title I hereinabove.
Where the rogatory commission has not been executed, wholly or
partly, the petitioned authority informs the petitioning
authority thereof through the same channels, giving the reasons
therefor.
4. Rogatory commissions are drawn up in the French language.
They contain the following indications, to facilitate their
execution:
(a) the petitioning authority and, if possible, the petitioned
authority;
(b) the identities and addresses of the parties and, as the
case may be, of their representatives;
(c) the nature and object of the suit;
(d) the trial proceedings or other judicial proceedings to be
carried out;
(e) the names and addresses of the persons to be heard;
(f) the questions to be asked of the persons to be heard or
the facts on which they must be heard;
(g) the documents or other objects to be examined;
(h) as the case may require, the application for receiving a
sworn or solemnly affirmed deposition and, where that is the
case, the indication of the formula to be used;
(i) where that is the case, the special form the use of which
is required.
5. The rogatory commission is executed by the petitioned
judicial authority in conformity with its law unless the
petitioning judicial authority has asked that it be proceeded
with in a particular form.
If requested in the rogatory commission, the questions and
answers are integrally transcribed or recorded. The judge may
ask and authorize the parties and their defendants to ask
questions; such questions must be drawn up in or translated into
the French language. The same holds true for the answers to
these questions.
The appointed judge informs the appointing jurisdiction, if it
so requests, of the place, day and time fixed for the execution
of the rogatory commission.
6. The execution of a rogatory commission may be refused by
the petitioned authority if it considers it to be beyond its
powers or that it might entail interference in its public order
or jurisdiction.
7. The execution of the rogatory commission takes place
without costs or tax for the services rendered by the petitioned
judicial authority.
However, the amounts due to witnesses, experts and
interpreters are to be paid by the petitioning authority. The
same holds true for the costs resulting from the use of a
special form required by the petitioning authority.
In such cases, the reimbursement of the costs of execution is
guaranteed by the applicant in the form of a written undertaking
attached to the rogatory commission.
8. The documents evidencing the execution of the rogatory
commission are forwarded through the Central Authorities.


TITLE IV

JUDICIAL AID AND “JUDICATUM SOLVI” SURETY

1. French residents in Québec and Québec residents in France
may receive judicial aid, in Québec and in France, respectively,
in conformity with the law of their place of residence.
2. The certificate attesting to the insufficiency of the
resources of the applicant is issued to him by the authorities
of his place of residence.
The authority in charge of ruling on the application for
judicial aid may ask the authorities of the place of origin of
the applicant for supplementary information. Such supplementary
inquiries are forwarded through the Central Authorities.
3. No surety or deposit, under any appellation whatever, may
be required, in virtue of any law of France or Québec, of French
residents in Québec or Québec residents in France, by reason of
either their foreign nationality or their lack of domicile or
residence.


TITLE V

ACTS OF CIVIL STATUS

The competent authorities of the civil status in France and
the prothonotaries in Québec issue, free of charge, copies of or
extracts from acts of civil status.


TITLE VI

APPLICATIONS FOR INQUIRY--PROTECTION OF MINORS AND OF ALIMENTARY
CREDITORS

1. The Central Authorities may, as an act of judicial mutual
aid, if nothing prevents it, address to each other requests for
information or applications for inquiry within the scope of
civil or commercial proceedings of which their judicial
authorities are seized and, in particular, transmit to each
other, free of charge, copies of judicial decisions.
2. Within the scope of proceedings respecting the custody or
protection of minors, the Central Authorities
(a) communicate to each other, at each other’s request, any
information concerning measures taken for the custody or
protection of minors, the carrying into effect of such measures
and the material and moral situation of such minors;
(b) lend each other mutual aid in locating in their territory
and obtaining the voluntary return of displaced minors, where
the right of custody has simply been ignored;
Where the right of custody is disputed, the Central
Authorities refer it urgently to their competent authority to
take the necessary measures of protection and to decide the
application for the return of the minor, taking into account all
the elements of the case, particularly the decisions and
measures already taken by the French or Québec judicial
authorities;
(c) cooperate with a view to arranging visiting rights for the
benefit of the parent who does not have custody, and to insuring
respect of the conditions imposed by their respective
authorities for the carrying out and free exercise of these
visiting rights, as well as the undertakings of the parties in
regard to that parent.
3. Within the scope of proceedings concerning the recovery of
maintenance abroad, the Central Authorities lend each other
mutual aid in locating and hearing alimentary debtors staying in
their territory and in obtaining the voluntary recovery of
alimentary pensions.


TITLE VII

RECOGNITION AND EXECUTION OF DECISIONS REGARDING THE STATUS AND
CAPACITY OF PERSONS AND PARTICULARLY THE CUSTODY OF CHILDREN AND
ALIMENTARY OBLIGATIONS

1. Decisions regarding the status and capacity of persons and
particularly the custody of children and alimentary obligations
handed down by jurisdictions sitting in France and in Québec,
respectively, have pleno jure the authority of res judicata in
France and in Québec, if they meet the following conditions:
(a) the decision is issued by a competent jurisdiction
according to the rules regarding concurrent jurisdictions
obtaining in the territory of the authority where the decision
is executed;
(b) the decision has applied the law applicable to the dispute
under the rules of solution of conflicts of laws obtaining in
the territory of the authority where the decision is executed;
(c) the decision, according to the laws of the political
entity in which it was handed down, is not subject to any
further ordinary recourse or appeal;
(d) the parties have been regularly summoned, represented or
declared in default;
(e) the decision does not include anything contrary to public
order under the responsibility of the authority in whose
territory it is invoked;
(f) a dispute between the same parties, based on the same
facts and having the same object,
-- is not pending before a jurisdiction of the petitioned
authority;
-- has not given rise to a decision rendered by a jurisdiction
of the petitioned authority;
-- has not given rise to a decision rendered in a third
political entity, meeting the conditions necessary for its
recognition in the territory of the petitioned authority.
2. No decision regarding the status and capacity of persons
and particularly the custody of children and alimentary
obligations may give rise to any forced execution by the
authorities having recognized them in accordance with the
preceding paragraph until it has been declared executory.
3. Exequatur proceedings in respect of the decision are
governed by the law of the authority of the place where the
decision is executed. The petitioned judicial authority
confines itself to verifying whether the decision which is the
subject of the application for execution meets the conditions
set forth in paragraph 1 of this title, without making any
examination of the case on its merits.
4. The party to an action who invokes the authority of a
judicial decision or demands its execution must file
(a) a properly authenticated transcript of the decision;
(b) the original of the writ of service of the decision or of
any other proceeding in lieu of service;
(c) a certificate of the clerk establishing that no opposition
or appeal is pending against the decision;
(d) where that is the case, a copy of the summons of the party
who failed to appear at the trial, certified true by the clerk
of the jurisdiction having rendered the decision.
5. Applications to obtain the execution of a judicial decision
handed down in France or Québec dealing with the custody of
children or alimentary obligations may be forwarded through the
Central Authorities.
Québec, 9 September 1977

MARC-ANDRÉ BÉDARD ALAIN PEYREFITTE
Minister of Garde des sceaux
Justice of Québec Ministre de la
Justice de France
1978, c. 20, Schedule.
REPEAL SCHEDULE

In accordance with section 17 of the Act respecting the consolidation of the statutes and regulations (chapter R-3), chapter 20 of the statutes of 1978, in force on 1 June 1979, is repealed effective from the coming into force of chapter A-20.1 of the Revised Statutes.