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

Schedule Disposition versions

1989-09-13

0001-01-01

SCHEDULE

(Section 1)ŠŠENTENTE BETWEEN QUÉBEC AND FRANCE REGARDING JUDICIAL MUTUAL AIDŠIN CIVIL, COMMERCIAL AND ADMINISTRATIVE MATTERS (TRANSLATION)ŠŠŠTITLE IŠŠDESIGNATION OF CENTRAL AUTHORITIESŠŠ  The ministries of justice of France and Québec are designatedŠas the Central Authorities in charge of receiving applicationsŠfor judicial mutual aid in civil, commercial and administrativeŠmatters and of dealing with them.Š  For that purpose, these Central Authorities communicateŠdirectly with each other.Š  Applications for judicial mutual aid and the documentsŠattached thereto, as well as the documents attesting to theirŠexecution are exempt from authentication or any similar formalŠprocedure.  However, such documents must be so drawn up as toŠmake their authenticity apparent and, in particular, must bearŠthe official seal of the authority qualified to issue them.ŠŠŠTITLE IIŠŠTRANSMISSION AND DELIVERY OF JUDICIAL AND EXTRAJUDICIAL WRITTENŠPROCEEDINGSŠŠ  1. Applications for service and notice of judicial andŠextrajudicial written proceedings in civil, commercial andŠadministrative matters, intended for natural or artificialŠpersons residing in France or in Québec, are forwarded throughŠthe Central Authorities who are entrusted with dealing withŠthem.Š  2. The application indicates the authority issuing theŠproceeding, the name and capacity of each party, the name andŠaddress of the person for whom it is intended and the nature ofŠthe proceeding.Š  The proceedings to be notified or served that are attached toŠthe application are sent in duplicate.  The application and theŠproceedings are drawn up in the French language or accompaniedŠwith a translation in that language.Š  3. The petitioned authority confines itself to delivering theŠproceeding to the person for whom it is intended by such meansŠas it considers most appropriate.  Delivery or the attempt toŠmake delivery does not give entitlement to the reimbursement ofŠcosts, even if the address of the person for whom the proceedingŠis intended is insufficient, incomplete or inaccurate.Š  The petitioning authority may ask the petitioned authority toŠundertake or order the service or notice of the proceeding in aŠparticular form consistent with the legislation of theŠpetitioned authority.  The payment of the costs incurred by theŠuse of a particular form, especially by the intervention of aŠlaw official, is incumbent on the petitioning authority.Š  4. Delivery is proved either by a receipt, dated and signed byŠthe person concerned, or by an attestation or certificate fromŠthe petitioned authority.  The receipt or attestation may appearŠon one of the copies of the proceeding to be served or notified. ŠThe attestation states the form, place and date of delivery, theŠname of the person to whom the proceeding was delivered and,Šwhere that is the case, the refusal of the person to whom it isŠaddressed to accept the proceeding or the fact that preventedŠthe delivery from being made.Š  The receipt or attestation, together with a copy of theŠproceeding to be served or notified, may be addressed directlyŠto the applicant by the authority that drew it up, without theŠintervention of the petitioning Central Authority.Š  5. The petitioned authority may refuse to act on anŠapplication for notice or service if it considers that it mightŠentail interference in its public order or jurisdiction.  If itŠrefuses to act, the petitioned authority informs the CentralŠAuthority without delay, giving its reasons therefor.Š  6. In civil, commercial and administrative matters, theŠpreceding provisions do not impedeŠ  (a) the faculty of using diplomatic or consular channels toŠcarry out directly and without restraint the service of judicialŠand extrajudicial written proceedings in keeping with the usagesŠobtaining between France and Québec;Š  (b) the faculty of giving notice of proceedings directly byŠmail to persons in France or in Québec;Š  (c) the faculty of the persons interested in a judicial suit,Šof having proceedings served or notified by law officials, civilŠservants or other qualified persons in France or in Québec;Š  (d) the faculty of law officials, civil servants or otherŠqualified persons in France or in Québec of having proceedingsŠserved or notified directly by law officials, civil servants orŠother qualified persons in France or in Québec.  For suchŠpurpose, the proceeding may be transmitted directly, in France,Što the Chambre nationale des huissiers de justice in Paris and,Šin Québec, to the Bureau de l’administration de la Loi desŠhuissiers at the Ministère de la justice in Québec, withŠinstructions to send them to a territorially competent bailiff. ŠIn this case, the applicant must either pay the costs of serviceŠin advance, in a lump sum, or make a written undertaking to payŠthem.Š  7. Where, for the purposes of service or notification, it hasŠbeen necessary to transmit a writ of summons or an equivalentŠproceeding to France or to Québec and where the defendant doesŠnot appear, the judge may suspend his decision until it isŠestablished that the proceeding has been served or notified.ŠŠŠTITLE IIIŠŠTRANSMISSION AND EXECUTION OF ROGATORY COMMISSIONSŠŠ  1. In civil, commercial and administrative matters, the FrenchŠand Québec judicial authorities, in conformity with theŠprovisions of their legislation, may give each other a rogatoryŠcommission for the purpose of instituting the trial and judicialŠproceedings they consider necessary, except proceedings forŠexecution or measures of conservation.Š  Such provision does not impede the faculty of executingŠrogatory commissions through diplomatic or consular channels inŠkeeping with the usages obtaining between France and Québec.Š  2. A trial proceeding may be applied for so as to enable theŠpersons concerned to obtain grounds of proof in a futureŠproceeding, in conformity with the law of the petitionedŠjudicial authority.Š  3. Rogatory commissions are forwarded through the CentralŠAuthorities in conformity with Title I hereinabove.Š  Where the rogatory commission has not been executed, wholly orŠpartly, the petitioned authority informs the petitioningŠauthority thereof through the same channels, giving the reasonsŠtherefor.Š  4. Rogatory commissions are drawn up in the French language.Š  They contain the following indications, to facilitate theirŠexecution:Š  (a) the petitioning authority and, if possible, the petitionedŠauthority;Š  (b) the identities and addresses of the parties and, as theŠcase may be, of their representatives;Š  (c) the nature and object of the suit;Š  (d) the trial proceedings or other judicial proceedings to beŠcarried out;Š  (e) the names and addresses of the persons to be heard;Š  (f) the questions to be asked of the persons to be heard orŠthe facts on which they must be heard;Š  (g) the documents or other objects to be examined;Š  (h) as the case may require, the application for receiving aŠsworn or solemnly affirmed deposition and, where that is theŠcase, the indication of the formula to be used;Š  (i) where that is the case, the special form the use of whichŠis required.Š  5. The rogatory commission is executed by the petitionedŠjudicial authority in conformity with its law unless theŠpetitioning judicial authority has asked that it be proceededŠwith in a particular form.Š  If requested in the rogatory commission, the questions andŠanswers are integrally transcribed or recorded.  The judge mayŠask and authorize the parties and their defendants to askŠquestions; such questions must be drawn up in or translated intoŠthe French language.  The same holds true for the answers toŠthese questions.Š  The appointed judge informs the appointing jurisdiction, if itŠso requests, of the place, day and time fixed for the executionŠof the rogatory commission.Š  6. The execution of a rogatory commission may be refused byŠthe petitioned authority if it considers it to be beyond itsŠpowers or that it might entail interference in its public orderŠor jurisdiction.Š  7. The execution of the rogatory commission takes placeŠwithout costs or tax for the services rendered by the petitionedŠjudicial authority.Š  However, the amounts due to witnesses, experts andŠinterpreters are to be paid by the petitioning authority.  TheŠsame holds true for the costs resulting from the use of aŠspecial form required by the petitioning authority.Š  In such cases, the reimbursement of the costs of execution isŠguaranteed by the applicant in the form of a written undertakingŠattached to the rogatory commission.Š  8. The documents evidencing the execution of the rogatoryŠcommission are forwarded through the Central Authorities.ŠŠŠTITLE IVŠŠJUDICIAL AID AND “JUDICATUM SOLVI” SURETYŠŠ  1. French residents in Québec and Québec residents in FranceŠmay receive judicial aid, in Québec and in France, respectively,Šin conformity with the law of their place of residence.Š  2. The certificate attesting to the insufficiency of theŠresources of the applicant is issued to him by the authoritiesŠof his place of residence.Š  The authority in charge of ruling on the application forŠjudicial aid may ask the authorities of the place of origin ofŠthe applicant for supplementary information.  Such supplementaryŠinquiries are forwarded through the Central Authorities.Š  3. No surety or deposit, under any appellation whatever, mayŠbe required, in virtue of any law of France or Québec, of FrenchŠresidents in Québec or Québec residents in France, by reason ofŠeither their foreign nationality or their lack of domicile orŠresidence.ŠŠŠTITLE VŠŠACTS OF CIVIL STATUSŠŠ  The competent authorities of the civil status in France andŠthe prothonotaries in Québec issue, free of charge, copies of orŠextracts from acts of civil status.ŠŠŠTITLE VIŠŠAPPLICATIONS FOR INQUIRY--PROTECTION OF MINORS AND OF ALIMENTARYŠCREDITORSŠŠ  1. The Central Authorities may, as an act of judicial mutualŠaid, if nothing prevents it, address to each other requests forŠinformation or applications for inquiry within the scope ofŠcivil or commercial proceedings of which their judicialŠauthorities are seized and, in particular, transmit to eachŠother, free of charge, copies of judicial decisions.Š  2. Within the scope of proceedings respecting the custody orŠprotection of minors, the Central AuthoritiesŠ  (a) communicate to each other, at each other’s request, anyŠinformation concerning measures taken for the custody orŠprotection of minors, the carrying into effect of such measuresŠand the material and moral situation of such minors;Š  (b) lend each other mutual aid in locating in their territoryŠand obtaining the voluntary return of displaced minors, whereŠthe right of custody has simply been ignored;Š  Where the right of custody is disputed, the CentralŠAuthorities refer it urgently to their competent authority toŠtake the necessary measures of protection and to decide theŠapplication for the return of the minor, taking into account allŠthe elements of the case, particularly the decisions andŠmeasures already taken by the French or Québec judicialŠauthorities;Š  (c) cooperate with a view to arranging visiting rights for theŠbenefit of the parent who does not have custody, and to insuringŠrespect of the conditions imposed by their respectiveŠauthorities for the carrying out and free exercise of theseŠvisiting rights, as well as the undertakings of the parties inŠregard to that parent.Š  3. Within the scope of proceedings concerning the recovery ofŠmaintenance abroad, the Central Authorities lend each otherŠmutual aid in locating and hearing alimentary debtors staying inŠtheir territory and in obtaining the voluntary recovery ofŠalimentary pensions.ŠŠŠTITLE VIIŠŠRECOGNITION AND EXECUTION OF DECISIONS REGARDING THE STATUS ANDŠCAPACITY OF PERSONS AND PARTICULARLY THE CUSTODY OF CHILDREN ANDŠALIMENTARY OBLIGATIONSŠŠ  1. Decisions regarding the status and capacity of persons andŠparticularly the custody of children and alimentary obligationsŠhanded down by jurisdictions sitting in France and in Québec,Šrespectively, have pleno jure the authority of res judicata inŠFrance and in Québec, if they meet the following conditions:Š  (a) the decision is issued by a competent jurisdictionŠaccording to the rules regarding concurrent jurisdictionsŠobtaining in the territory of the authority where the decisionŠis executed;Š  (b) the decision has applied the law applicable to the disputeŠunder the rules of solution of conflicts of laws obtaining inŠthe territory of the authority where the decision is executed;Š  (c) the decision, according to the laws of the politicalŠentity in which it was handed down, is not subject to anyŠfurther ordinary recourse or appeal;Š  (d) the parties have been regularly summoned, represented orŠdeclared in default;Š  (e) the decision does not include anything contrary to publicŠorder under the responsibility of the authority in whoseŠterritory it is invoked;Š  (f) a dispute between the same parties, based on the sameŠfacts and having the same object,Š-- is not pending before a jurisdiction of the petitioned Š   authority;Š-- has not given rise to a decision rendered by a jurisdiction Š   of the petitioned authority;Š-- has not given rise to a decision rendered in a third Š   political entity, meeting the conditions necessary for itsŠ   recognition in the territory of the petitioned authority.Š  2. No decision regarding the status and capacity of personsŠand particularly the custody of children and alimentaryŠobligations may give rise to any forced execution by theŠauthorities having recognized them in accordance with theŠpreceding paragraph until it has been declared executory.Š  3. Exequatur proceedings in respect of the decision areŠgoverned by the law of the authority of the place where theŠdecision is executed.  The petitioned judicial authorityŠconfines itself to verifying whether the decision which is theŠsubject of the application for execution meets the conditionsŠset forth in paragraph 1 of this title, without making anyŠexamination of the case on its merits.Š  4. The party to an action who invokes the authority of aŠjudicial decision or demands its execution must fileŠ  (a) a properly authenticated transcript of the decision;Š  (b) the original of the writ of service of the decision or ofŠany other proceeding in lieu of service;Š  (c) a certificate of the clerk establishing that no oppositionŠor appeal is pending against the decision;Š  (d) where that is the case, a copy of the summons of the partyŠwho failed to appear at the trial, certified true by the clerkŠof the jurisdiction having rendered the decision.Š  5. Applications to obtain the execution of a judicial decisionŠhanded down in France or Québec dealing with the custody ofŠchildren or alimentary obligations may be forwarded through theŠCentral Authorities.Š  Québec, 9 September 1977ŠŠMARC-ANDRÉ BÉDARD              ALAIN PEYREFITTEŠMinister of                    Garde des sceauxŠJustice of Québec              Ministre de la Š                               justice de France

1978, c. 20, Schedule.