2013 QCCA 1529, 2013 QCCA 1529

Unofficial English Translation Droit de la famille — 132433 2013 QCCA 1529 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTRÉAL No. 500-09-023084-122 (500-04-059296-120) DATE: September 12, 2013 CORAM: THE HONOURABLE JACQUES A. LÉGER J.A. JACQUES J. LEVESQUE J.A. DOMINIQUE BÉLANGER J.A. A.Z. APPELLANT – applicant v. V.S.

RESPONDENT – defendant JUDGMENT [ 1 ] The appellant is appealing from a judgment rendered on September 28, 2012 by the Superior Court, District of Montréal (the Honourable Nicole Bénard J.), which allowed the respondent's declinatory exception and dismissed her motion to institute proceedings for separation from bed and board and for child custody. [ 2 ] For the reasons of Léger J.A., with which Levesque and Bélanger JJ.A. concur, THE COURT : [ 3 ] GRANTS the appeal, without costs; [ 4 ] QUASHES the judgment in first instance; [ 5 ] DISMISSES the respondent's motion for declinatory exception, without costs; [ 6 ] DECLARES that the Superior Court has jurisdiction to hear the appellant's motion to institute proceedings; [ 7 ] REFERS the case to first instance, where it will be reinstituted. (

s) JACQUES A. LÉGER J.A. (

s) JACQUES J. LEVESQUE J.A. (

s) DOMINIQUE BÉLANGER J.A. Mtre. André-E. Legault Alarie Legault For the appellant Mtre. Brigitte Karib Aide juridique de Montréal For the respondent

Date of hearing: February 28, 2013 REASONS OF LÉGER J.A. [ 8 ] The appellant is appealing from a judgment rendered on September 28, 2012, in which the Superior Court, District of Montréal (the Honourable Nicole Bénard J.), allowed the respondent's declinatory exception and dismissed the appellant's motion to institute proceedings for separation from bed and board and for child custody. Subsidiarily, the judge added that, had she dismissed the respondent's declinatory motion, she would nevertheless have declined jurisdiction in favour of the foreign authority [TRANSLATION] ". . . because the facts mentioned by Ms.

Z. in the [her] proceedings and [her] affidavit for the purpose of requesting custody can be proven only in British Columbia". [1] [ 9 ] The main issue is whether, pursuant to

article 3146 of the Civil Code of Québec , the appellant had established her residence or domicile in Montréal at the time she instituted her proceedings here. In the affirmative, the other issue is whether, pursuant to

article 3142 C.C.Q., the Superior Court has jurisdiction to rule on the custody of the parties' child. If it does, according to the theory that child custody is corollary to separation from bed and board proceedings, a third issue must be ruled on—whether, pursuant to

article 3135 C.C.Q., it is appropriate for the Superior Court to decline jurisdiction in favour of the courts in British Columbia, the last place where the parties lived together. I – BACKGROUND [ 10 ] The only background information on the parties' relationship consists of the facts set out in their respective motions and affidavits, especially the appellant's affidavit of September 27, 2012, filed in response to the affidavit attached by the respondent to his declinatory motion. [2] [ 11 ] Both parties are from British Columbia. They met there in 2003 and had a daughter together (X), born on July 20, 2006.

According to the appellant, the parties never lived together from their daughter's birth to their marriage, solemnized on July 4, 2009, because of the respondent's behaviour. So, in fact, she has always been the one to exercise custody of their daughter, feed her and bring her up, in addition to supporting her single-handedly. It was therefore only as of July 2009 that they lived together, albeit briefly. [ 12 ] After their marriage, the problems the respondent had always had with alcohol abuse, his violent temperament and his refusal to contribute financially to the family's needs and expenses continued.

Ultimately, the appellant had to take refuge at a shelter for battered women, at which time a counsellor called the police. On January 31, 2010, she decided to stop living with the respondent. [ 13 ] After the separation, she continued to play her role single-handedly with respect to her daughter, of whom she had de facto custody; the respondent never objected to the custody situation. Furthermore, during that period, the respondent was essentially unemployed and did not assume his fair share in meeting the family's needs.

He asked to see his daughter only occasionally, on certain weekends. [ 14 ] In February 2012, the respondent made a commitment to the appellant that he would continue to get help to overcome his problems with alcohol and better manage his behaviour. The appellant agreed to make another attempt at reconciliation and began living with him again.

Despite the resumption of their life together, which lasted only a few months, the respondent has lived with the appellant and their daughter for at most 10 months since she was born. [ 15 ] In May 2012, the appellant's father offered her two plane tickets to visit him for three weeks in Montréal, where he now lives. During her stay at his home, she met other members of her family.

That was the backdrop for realizing how beneficial it would be for her and her daughter to settle in a new environment, considering her ongoing difficulties with the respondent, who had not really changed his derogatory behaviour toward her since they had resumed living together a few months earlier. [ 16 ] In June 2012, back in British Columbia, the appellant was determined to end their union for good unless the respondent was willing to see a marriage counsellor with her and follow through on his commitments to get help for his problems with alcohol and his violent behaviour, which he had refused to do up to that point. [ 17 ] Also in June 2012, the respondent decided to go to New Brunswick for three months of training.

Before he left, the appellant asked him not to return to their apartment since he still had not changed his behaviour and still was not contributing to family expenses. She announced that she was leaving him for good and demanded that he give her back the keys to the apartment, which he did. [ 18 ] Shortly afterward, she sublet the apartment.

Contrary to the respondent's assertions, she affirmed that she never put padlocks on the door; rather she made arrangements with the new subtenant so that the respondent could pick up his personal effects upon his return, scheduled for that September. [ 19 ] At the end of August, still without financial support from the respondent, the appellant left Vancouver and went back with her child to her father's place in Montréal, where she decided to settle permanently.

She said that she did so, in part, for the anticipated emotional and financial support. [ 20 ] In September 2012, the respondent stopped briefly in Montréal on his way to Vancouver, in order to meet with the appellant. She explained to him the reasons for her move to Québec with the child, which he disapproved of. A few days later, he returned to British Columbia.

[ 21 ] That was the appellant's state of mind when she filed her motion for separation from bed and board and sole custody of the parties' child before the Superior Court, District of Montréal, on September 10. [ 22 ] Subsequently, also in September 2012, the appellant did a number of things that demonstrate how serious she was about establishing her residence in Montréal, in particular: (

a) she enrolled her child in an elementary school near her father's home, where she and her daughter were henceforth living; (

b) she applied for admission to Concordia University on September 24, 2012, in order to continue and complete the Arts program she had started in British Columbia prior to leaving; (

c) she exchanged several emails with the respondent between September 9 and 12 to inform him of her firm decision to never live with him again and to stay in Montréal to live, study and possibly elect domicile here with her child, of whom she still had de facto sole custody at the time. However, she added the following: Hi Cleveland, I agree that I will not deprive X of her visitation rights to you. I have not done so in the past nor do I have the intention to do so in the future. If you could please let me know what are your needs for visitation that would be helpful incoming to some sort of agreement.

It's not for me to decide alone when you should see her. It's for you to suggest when you would like to see her, and it's for us to agree upon it together. Please reply and give me your position. (

d) she terminated [3] the lease for the apartment she was renting in British Columbia. [ 23 ] The appellant also filed various letters from September 2012—letters from companies she dealt with in Montréal and communications from her former university in British Columbia—received at her address in Montréal. [ 24 ] On September 17, 2012, she enrolled her daughter at Nesbitt School in Montréal, where she started her school year. [ 25 ] On September 24, 2012, through the southwest (Montréal) legal aid office, the respondent filed a notice of disclosure of a declinatory exception (arts. 159 and 163 of the Code of Civil Procedure ) against the appellant's motion to institute separation from bed and board proceedings and for dismissal of her application for custody of their child, on the ground that neither the appellant nor their daughter was domiciled and/or resident in Québec.

He also sought a declaration that the Québec courts did not have jurisdiction to rule on those issues. [ 26 ] The hearing of the declinatory exception took place on September 28, 2012 before the Honourable Nicole Bénard J., who, after listening briefly to the arguments presented by counsel for the parties, told them that she would render her decision early in the afternoon. II – THE IMPUGNED JUDGMENT [ 27 ] The judgment is very brief, with reasons presented in the form of "considering" clauses.

The full judgment is reproduced below: [TRANSLATION] Judgment Considering that the parties lived together at least until July 12, 2012; Considering that Mr. S. is said to be in New Brunswick for training; Considering that, in August 2012, Ms. Z. decided to take holidays in Québec; Considering that, until September 20, 2012, she had her domicile in British Columbia;

Considering that the child will not start school in Québec until September 17, 2012; Considering that the application for separation from bed and board was filed on September 10, 2012; Considering that Ms. Z. is living on loans and bursaries paid by the University of British Columbia to study at the University of British Columbia; The Court GRANTS the motion for declinatory exception; DISMISSES the application for separation from bed and board; Subsidiarily , although it did not dismiss the application, the Court DECLINES jurisdiction, because the facts mentioned by Ms.

Z. in [her] the proceedings and [her] affidavit for the purpose of requesting custody can be proven only in British Columbia; WITHOUT COSTS. III – THE GROUNDS FOR APPEAL [ 28 ] The appellant has put forward two grounds for appeal. First, the trial judge prevented her from testifying and cross-examining the respondent about the allegations in his affidavit. In her view, that would be a violation of her right to be heard.

Given my finding on the other issues, there is no need to discuss the first ground. [ 29 ] Second, on the merits of the motion for declinatory exception, she argued that the judge erred by not holding to be proved the allegations in the affidavit of September 27, 2012, which showed her intention to change the place of her domicile with a view to establishing it in Montréal. [ 30 ] For the purposes of my analysis, I formulate as follows the issues to be decided and their order of presentation: 1.

Did the trial judge err in finding that the appellant had not established her domicile or residence in Montréal at the time her motion for separation from bed and board was filed? 2. Does the Superior Court of Québec have jurisdiction to hear the application respecting custody? 3. Should the Superior Court have declined jurisdiction? IV – ANALYSIS preliminary remarks [ 31 ] I would point out, at the outset, that this discussion does not fall within the realm of wrongful removal of a child.

This specification is fundamental, because, in the case of wrongful removal, it is accepted that the child's domicile is the one he or she had before the removal. In other words, wrongful removal is fatal to a change of domicile, within the meaning of

article 3142 C.C.Q. In short, the outcome could be different in such a case; I will come back to this later on. 1. Did the trial judge err in finding that the appellant had not established her domicile or residence in Montréal at the time her motion for separation from bed and board was filed? [ 32 ] For the Superior Court of Québec to have jurisdiction to hear a motion for separation from bed and board, one of the spouses must have his or her residence or domicile in Québec at the time of the institution of the proceedings: 3146.

A Québec authority has jurisdiction to rule on separation from bed and board when one of the spouses has his domicile or residence in Québec at the time of the institution of the proceedings. 3146 . Les autorités québécoises sont compétentes pour statuer sur la séparation de corps, lorsque l'un des époux a son domicile ou sa résidence au Québec à la date de l'introduction de l'action. [ 33 ] "Domicile" is defined in

article 75 C.C.Q.: 75. The domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment. 75 . Le domicile d'une personne, quant à l'exercice de ses droits civils, est au lieu de son principal établissement. [ 34 ]

Section 76 provides that, to change domicile, a person must actually reside in another place and must have the intention to make it the seat of his or her principal establishment:

76. Change of domicile is effected by actual residence in another place coupled with the intention of the person to make it the seat of his principal establishment. The proof of such intention results from the declarations of the person and from the circumstances of the case. 76. Le changement de domicile s'opère par le fait d'établir sa résidence dans un autre lieu, avec l'intention d'en faire son principal établissement. La preuve de l'intention résulte des déclarations de la personne et des circonstances . [ 35 ] A person's residence is the place where the person ordinarily resides: 77.

The residence of a person is the place where he ordinarily resides; if a person has more than one residence, his principal residence is considered in establishing his domicile. 77 .

La résidence d'une personne est le lieu où elle demeure de façon habituelle; en cas de pluralité de résidences, on considère, pour l'établissement du domicile, celle qui a le caractère principal. [ 36 ] The appellant argued that the judge erred by not taking into account the allegations in her affidavit of September 27, 2012— which, if proved, would have attested to her intention to establish her residence in Montréal—especially since they were not contested.

In addition, she criticized the judge for not noting that, from birth, her child had always lived with her, first in Vancouver, until summer 2012, then in Montréal, as of late August, early September. That indicator should have given pause. [ 37 ] The respondent contended that the judge did not err in determining that the facts subsequent to the filing of the appellant's application (September 10, 2012) were not relevant for the purpose of establishing residence.

He further argued that the appellant's situation in Québec does not have the nature of permanency required to determine that she has henceforward established her domicile in Montréal. [ 38 ] In reply to a question from the Court during the hearing, counsel for the respondent conceded that, were the factual background to indeed show that a residence was established in Montréal as of September, it would be sufficient to confer jurisdiction on the Superior Court. [ 39 ] With respect, I find that the grounds in the form of "considering" clauses do not take into account the whole of the evidence adduced before the trial judge.

Furthermore, the judge appears to restrict her examination to the allegations in the appellant's initial proceeding for separation from bed and board and child custody. This can be gleaned from what she wrote in her subsidiary conclusion: [TRANSLATION] "the Court DECLINES jurisdiction because the facts mentioned by Ms.

Z. in [her] the proceeding and [her] affidavit for the purpose of requesting custody can be proven only in British Columbia". [4] [ 40 ] Since this point was not clear prior to the hearing, and in an effort to wrestle the matter to the ground once and for all, I asked the parties' attorneys whether, in their opinion, the judge had taken cognizance of or considered the affidavit filed by the appellant on September 27 in response to the respondent's declinatory exception, and of the contents of the exhibits filed on September 26, 2012.

Counsel for the appellant responded in the negative, while counsel for the respondent responded in the affirmative. In my view, it is far from certain that she did give them enough credence or, at the very least, she did not explain herself clearly. [ 41 ] A careful reading of the transcription of the exchanges between counsel for the appellant and the judge, along with the intervention by counsel for the respondent, show that the judge intended to limit debate shortly after the start of the hearing.

Thus, when the judge returned after adjournment (for lunch), she refused the request by the appellant's attorney to have his client testify, on the ground that her judgment would be based on the documents filed by the appellant, but did not specify which ones. [ 42 ] With respect, it is my opinion that the judge did not take into account the facts as a whole, detailed as they were, set forth in the appellant's affidavit of September 27, to decide the case before her.

That constitutes an error of law. [ 43 ] It seems to me hard to imagine that an inference giving concrete form to the appellant's intention to move the seat of her principal establishment to Montréal could not be drawn from the steps taken by the appellant shortly after September 10.

Given the appellant's generally difficult history with the respondent in recent years and her move to her father's home in Montréal at the end of August, I find that the rule applied by the trial judge to determine the appellant's residence is too cut and dry. [ 44 ] Apart from cases involving wrongful removal of a child or a ruse to escape another court's jurisdiction, I am of the opinion that, in this case, a broad

interpretation is consistent with the purpose of

article 3146, about which the Minister of Justice made the following remarks in commenting the Civil Code of Québec : [TRANSLATION] This

article of new law adds residence-based jurisdiction to domicile-based jurisdiction, alreadly provided for in

article 3141. The

article accepts the idea that separation from bed and board is a means by which to organize relations in a broken household. So, it seems normal that spouses resident in Québec should be allowed to apply to the Québec authority, even if they have not established their domicile here.

The authority seized of the principal action also has jurisdiction over corollary relief such as the dissolution of the matrimonial regime and child custody. [5] [ 45 ] Even when the facts subsequent to the filing of the appellant's motion to institute proceedings are downplayed, nothing prevents their effects from being taken into account, especially given the proved elements demonstrating that the appellant intended to settle in Montréal.

[ 46 ] First, she was already living at her father's home in Montréal with her daughter, and she confirmed to the respondent that she intended to stay here. In addition, she terminated the lease for the apartment she had been living in alone prior to leaving British Columbia—the apartment she had thrown the respondent out of before he left for New Brunswick and gave her back the keys. In tandem, the appellant instituted her proceedings for separation from bed and board and for custody of her child, enrolled her daughter in an elementary school in Montréal and applied for admission to Concordia University.

She did all of that prior to the respondent's serving her with his declinatory exception. [ 47 ] Given the strained relations between the parties during all of these years and the fact that the respondent lived with the appellant and their daughter for all of 10 months over a period of six years, it strikes me as entirely reasonable that the steps taken by the appellant at the same time as, or immediately after, her motion was filed not only inform us of her intentions, but also confirm the crystallization of her plan to establish her residence in Montréal.

Thus, I find that these facts adduced in evidence, even those that are subsequent to September 10, attest that the appellant's intention was to remain in Montréal when she moved in with her father. [ 48 ] True, the appellant's September 10 motion to institute proceedings does not set out the circumstances of her change of residence, but it is easy to tell from the evidence as a whole subsequent to that date, which the judge did not discuss, that she initiated her move to her father's home in an open and planned manner, before the debate on the declinatory exception came up.

It is entirely coherent and normal that such steps be continued beyond the filing of her motion. [ 49 ] The evidence shows, on a balance of probabilities, that, on the continuum before and after September 10, the appellant demonstrated her intention to establish her domicile in Montréal. But the judge did not spend time examining that continuum, justifying her refusal to proceed with proof and hearing of the motion for declinatory exception as follows, in practice division 201: "all my judgment is based on your documents".

The judge, however, did not make reference to the context of the documents, even though the appellant had explained it well in her affidavit of September 27. [ 50 ] To illustrate, contrary to what can be ascertained from the reasons of the impugned judgment, I believe that the mere fact that the appellant signed a lease in British Columbia that expired on September 20 can be a bar to her having chosen to live in Montréal in the meantime.

At best, the existence of the lease in British Columbia is an indicator, but it is definitely not a decisive factor, unless it is isolated from the evidence as a whole. [6] [ 51 ] A contrario , had the appellant signed a lease or bought a house instead of going to live with her father because of her lack of financial resources, there would likely not have been a debate over whether such steps testified to an intention to settle in Montréal permanently. [ 52 ] The respondent argued that, to demonstrate that the place where she is living is her residence, the appellant had to prove that it is the place where she ordinarily resides.

The meaning he ascribed to the word "ordinarily" was one of duration. His argument is not convincing. To accept it would be tantamount to saying that a person who has just moved does not have a residence, because the person has not been living in his or her new home long enough. [ 53 ] In my view, "place where she ordinarily resides" should instead be interpreted as being the place where she intends to go at least frequently.

From this perspective, the allegations in the appellant's affidavit of September 27, 2012 and the exhibits communicated to the respondent the day before show that, on September 10, 2012 and shortly afterward, the appellant engaged in enough acts to demonstrate the seriousness of her intention to establish her residence in Montréal.

Furthermore, that intention crystallized with the filing of her motion to institutute proceedings—the first judicial manifestation of the failure of the parties' marriage, considering that they lived together for barely 10 months over the years. [ 54 ] Given the evidence as a whole, I am satisfied, further to my analysis, that the evidence shows, on a balance of probabilities, that the appellant had established her residence in Québec at the time the proceedings were instituted.

Accordingly, I am of the opinion that the appellant has met the conditions in articles 76 and 77 C.C.Q. for establishing her residence in Montréal, and that her steps were neither improvised nor a ruse to escape the jurisdiction of the court in British Columbia. 2. Does the Superior Court of Québec have jurisdiction to hear the application respecting custody? [ 55 ] There are two options available for grounding the Court's jurisdiction in this case: the child's domicile and the application for custody as a corollary to the principal demand for separation from bed and board.

It is my view that, in both instances, the Superior Court had jurisdiction to hear the application respecting custody. [ 56 ] The appellant argued that the child's domicile or deemed domicile is the same as her's, in Montréal. On the other hand, the respondent contended that the child's domicile is that where he ordinarily resided in British Columbia until the appellant took her to Montréal. [ 57 ] Under

article 3142 C.C.Q., the Superior Court of Québec has jurisdiction relative to custody, where the child's domicile is in Québec.

Article 80 C.C.Q. provides for, among other things, the location of a minor child's domicile, where only one parent exercises tutorship: 80. An unemancipated minor is domiciled with his tutor. Where the father and mother exercise the tutorship but have no common domicile, the minor is presumed to be domiciled with the parent with whom he usually resides unless the court has fixed the domicile of the child elsewhere. 80. Le mineur non émancipé a son domicile chez son tuteur.

Lorsque les père et mère exercent la tutelle mais n'ont pas de domicile commun, le mineur est présumé domicilié chez celui de ses parents avec lequel il réside habituellement , à moins que le tribunal n'ait autrement fixé le domicile de l'enfant.

[Emphasis added.] [ 58 ] In the present case, the mother has always de facto exercised custody of the child since her birth, especially considering that she and the father lived together for barely 10 months over the years, their relationship having been punctuated by long periods of de facto separation. Furthermore, the appellant established that the father has never contributed to the child's upbringing or provided for her needs since her birth. In the present case, it is difficult to find that he exercised joint tutorship with the appellant. [ 59 ] In theory, the very wording of the second paragraph of

section 80 C.C.Q. suggests that the child's domicile must be at the same place as that of the appellant, since, in fact, the child has ordinarily always resided with the appellant. A nuance needs to be made, however, because, in matters of illegal removal of a child, our Court has in the past ruled that the place of a child's domicile must be ascertained prior to his or her illegal removal by one of the parents [7] (see, in particular, Chamberland J.A., whose relevant excerpt is quoted later on). [8] In fact, a few years later, that position was reiterated by our Court, per Otis J. in L.F. v.

N.T . [9] [ 60 ] However, that jurisprudence does not apply in the present case, since it is not a situation of illegal removal. That being so, the dispute between the parties is not governed by the Act respecting the civil aspects of international and interprovincial child abduction [10] — the Québec statute implementing the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980.

Consequently, it is the usual rules of Québec private international law that apply. [ 61 ] At any rate, even if the child's domicile had not been established in Québec, the Superior Court would nonetheless have had jurisdiction to rule on custody of the child, since that application is corollary to the application for separation from bed and board. Articles 3093, 3135, 3138, 3139, 3140, 3142 and 3146 C.C.Q., reproduced below, are key to resolving this issue. 3093. Custody of the child is governed by the law of his domicile. 3093. La garde de l'enfant est régie par la loi de son domicile. 3135.

Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide. 3135. Bien qu'elle soit compétente pour connaître d'un litige, une autorité du Québec peut, exceptionnellement et à la demande d'une partie, décliner cette compétence si elle estime que les autorités d'un autre État sont mieux à même de trancher le litige. 3138.

A Québec authority may order provisional or conservatory measures even if it has no jurisdiction over the merits of the dispute. 3138. L'autorité québécoise peut ordonner des mesures provisoires ou conservatoires, même si elle n'est pas compétente pour connaître du fond du litige. 3139. Where a Québec authority has jurisdiction to rule on the principal demand, it also has jurisdiction to rule on an incidental demand or a cross demand. 3139. L'autorité québécoise, compétente pour la demande principale, est aussi compétente pour la demande incidente ou reconventionnelle. 3140.

In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of the person or property of a person present in Québec. 3140. En cas d'urgence ou d'inconvénients sérieux, les autorités québécoises sont compétentes pour prendre les mesures qu'elles estiment nécessaires à la protection d'une personne qui se trouve au Québec ou à la protection de ses biens s'ils y sont situés. 3142. A Québec authority has jurisdiction to rule on the custody of a child provided he is domiciled in Québec. 3142.

Les autorités québécoises sont compétentes pour statuer sur la garde d'un enfant pourvu que ce dernier soit domicilié au Québec. 3146. A Québec authority has jurisdiction to rule on separation from bed and board when one of the spouses has his domicile or residence in Québec at the time of the institution of the proceedings. 3146.

Les autorités québécoises sont compétentes pour statuer sur la séparation de corps, lorsque l'un des époux a son domicile ou sa résidence au Québec à la date de l'introduction de l'action. [ 62 ] In short, the issue to be resolved is whether the jurisdiction of the Québec authority is governed here by

article 3142 C.C.Q. or

article 3146 C.C.Q. [ 63 ] This issue was decided in a recent judgment of the Court, in Droit de la famille – 131294 , [11] per my colleague Bich J.A. In detailed reasons, she analyzed

article 3142 C.C.Q., which deals with jurisdiction to rule on the custody of a child, in light of

article 3146 C.C.Q., discussed above. She found that jurisdiction respecting custody can stem from

article 3146 C.C.Q. The jurisdiction conferred on courts by the latter article, under the general principle enshrined in

article 3139 C.C.Q., extends to corollaries to separation from bed and board, namely, to applications that are incidental and closely tied to it, such as applications for child custody. Conversely, independent applications for custody, which are not made in conjunction with applications for separation, are governed by

article 3142 C.C.Q. [ 64 ] I concur with the reasons of my colleague in the aforementioned decision—to which I in fact subscribed—that led her to find that

article 3146 C.C.Q. implicitly but necessarily confers on Québec courts jurisdiction to rule on child custody, as a result of their jurisdiction respecting separation from bed and board. In other words, in cases where articles 3142 C.C.Q. and 3146 C.C.Q do not designate the same forum, the jurisdiction of a Québec authority in custody matters can flow from the latter alone. She explained as

follows: [TRANSLATION] [39] That said, the issue of whether the jurisdiction of the Superior Court over separation from bed and board extends as well to the determination of custody of the parties' children, which the respondent sought to have awarded to her in her motion to institute proceedings, needs to be decided. . . . [46] In fact, the Court previously had the chance to write that illegal removal cannot ground the jurisdiction of a Québec court under

article 3142 C.C.Q. In Droit de la famille — 3451 , Chamberland J.A. wrote the following: [TRANSLATION] The appeal essentially raises the issue of the Superior Court's jurisdiction to rule on the custody of a child where the fixing of the child's domicile has been disrupted by the child's recent removal to Québec without the consent of his or her other parent. . . .

Some, like the trial judge, may contend that, at the time the Superior Court was seized of the case, the child's habitual residence coincided with that of the respondent, since she had settled in St-J. . ., took good care of the child and clearly did not intend to return to Ontario. With respect for the proponents of that position, I do not believe that that can be so when, as in this case, the current situation stems from the illegal removal of the child. Until the respondent decided to bring W. . . to Québec on January 28, 1999, both parents had been exercising custody jointly.

The child was removed without the appellant's consent—without his knowledge, in fact. Nor did he agree to the removal once he had been informed of the events, as borne out by his actions. Thus, it is an illegal removal carried out in violation of the appellant's right of custody. Since illegal removal is involved, I believe it would be wholly inappropriate to take into account the facts subsequent to the removal, in order to determine the place of the child's "habitual residence". Illegal removal of a child cannot ground a legal change of domicile.

The opposite proposition would only encourage parents who are dissatisfied with one jurisdiction to take justice into their own hands and change jurisdictions in the hope, conscious or unconscious, that the courts there would be more sympathetic to their case. The Convention on the Civil Aspects of International Child Abduction aims to discourage that type of behaviour.

Article 3142 C.C.Q. and, consequently, the second paragraph of

article 80 C.C.Q. are in the same vein, as they also permit a Québec judicial authority to discourage such behaviour [references omitted], even in cases where the A ct respecting the civil aspects of international and interprovincial child abduction does not apply. [47] In short, illegal removal of a child precludes his or her change of domicile or habitual residence within the meaning of articles 76 and 80 C.C.Q., and it is on the basis of the domicile prior to such a removal that

article 3142 C.C.Q. must be applied. [48] That being so, argued the appellant, it would be very easy to get around that legislative intention, manifested, for example, in

article 3142 C.C.Q., if the jurisdiction conferred on Québec courts by

article 3146 C.C.Q. were interpreted as encompassing child custody, regardless of illegal removal. The appellant's solution, then, would be to give precedence to

article 3142 C.C.Q . , which would apply to every case involving the custody of a child, whether the issue came up as part of, or independently from, proceedings for separation from bed and board. . . . [53] The idea that the jurisdiction of a Québec authority in separation from bed and board proceedings entails ancillary jurisdiction in child custody matters is clearly based on an objective of judicial efficiency and fair judicial economy, and on a concern for avoiding a multiplicity of proceedings—and forums—between parties involved in what is ultimately one and the same dispute.

This is in keeping with the judicial logic relative to such a separation and its effects. For, when children (still minors) are born of the parties' marriage, separation from bed and board proceedings require a ruling on the custody of the children and the support that may be owed them (just as they require a ruling on the family patrimony, the matrimonial regime or the obligation of support between spouses). This is expressly prescribed in

article 514 C.C.Q., which I have already raised ( supra para. 40): [Citations omitted.] [54] Moreover, this

interpretation of

article 3146 C.C.Q. is also in line with

article 3139 C.C.Q., which sets forth a general rule in favour of a single forum—a rule from which there is no need to deviate in separation from bed and board proceedings.

Article 3139 C.C.Q., which is part of the general provisions at the beginning of Title Three of Book Ten of the Civil Code of Québec , stipulates the following: [Citations omitted.] [55] It behooves us to interpret legislative provisions from the same statute or, as in this case, from the same title of the Civil Code of Québec consistently, taking into account each and all of them. In the present case, this tends to indicate that, by virtue of the general principle enshrined in

article 3139 C.C.Q., the jurisdiction conferred on the courts by

article 3146 C.C.Q. must be extended to matters that are corollary to separation from bed and board, that is, to applications that are incidental and closely tied to it, such as in the case of applications for child custody. . . . [57] In the present case, however, the requirement of connection emphasized in that passage is met, as the legal obligation for the

court to rule on child custody stems from the law (art. 514 C.C.Q.), which establishes the incidentalness of an application that, by its very nature, is tied to the reordering of family arrangements after a separation. It therefore seems natural to interpret

article 3146 C.C.Q. in a way that is consistent with

article 3139 C.C.Q. and to conclude that jurisdiction in separation from bed and board proceedings extends to this indissociable corollary matter that is child custody. One would be hard pressed to deny the appropriateness, in theory, of having this issue (like other corollary relief) decided by the court that must rule on separation from bed and board . . . . [64] The jurisprudence respecting articles 3142 C.C.Q. and 3146 C.C.Q. is not very extensive, but the trend in the Superior Court is in keeping with the Minister's remarks, although sometimes implicitly: An independent child custody application, which is not made in conjunction with separation proceedings, is governed by

article 3142 C.C.Q., whereas an application made as part of such proceedings is governed by

article 3164 C.C.Q. That point of view is not unanimous (although the subject is seldom discussed), but seems to predominate. It was in fact endorsed in Droit de la famille — 3507 at para. 15, where, referring to articles 3093 C.C.Q. and 3142 C.C.Q., our Court wrote in obiter (and without discussion apart from a reference to the Minister's comments and to Professor Glenn's writings) that [TRANSLATION] "[t]hese articles . . . contemplate custody applications independent from separation from bed and board proceedings or divorce proceedings". This is undoubtedly still debatable respecting

article 3093 C.C.Q., but it appears to be accepted regarding

article 3142 C.C.Q. [65] Lastly, it must also be noted that the junction between principal jurisdiction over separation from bed and board and ancillary jurisdiction over child custody (or other corollary relief) is similar to the situation in divorce matters (see in particular sections 3 and 4 of the Divorce Act ), it being understood that the court can refer the issue of custody to the court of another province, on certain conditions ( art. 6 , a situation resembling a kind of forum non conveniens exception, albeit in a limited way).

The Québec legislator not having enacted in a vacuum, it may be inferred that, for reasons of jurisdictional consistency, the legislator intended to follow the model in the Divorce Act , if only to avoid the fragmentation of what constitutes, as I indicated above, one and the same proceeding ( supra para. 49). [66] In short, for all of these reasons, I am of the opinion that

article 3146 C.C.Q . implicitly but necessarily confers on Québec courts jurisdiction in child custody matters further to their jurisdiction in separation from bed and board proceedings (the domicile or residence of one of the spouses being the connecting factor). This means that, in cases where articles 3142 and 3146 do not designate the same forum, the jurisdiction of a Québec authority in custody matters can flow from

article 3146 alone. [References omitted.] [ 65 ] I am therefore of the opinion that the judge erred in finding that only courts in British Columbia have jurisdiction to rule on the issue of child custody. 3 – Should the Superior Court have declined jurisdiction? [ 66 ] The jurisdiction of the Superior Court of Québec to remain seized of and rule on the motion for separation from bed and board and child custody having been determined pursuant to

article 3146 C.C.Q., I must decide whether the judge rightly stated, subsidiarily, that she had jurisdiction on the grounds that [TRANSLATION] ". . . the facts mentioned by Ms. Z. in the proceedings and the affidavit for the purpose of requesting custody can be proven only in British Columbia" . [ 67 ] With great respect, for the reasons given earlier, I believe that the judge erred by finding that the issue of custody could be decided only in British Columbia. She then committed an error of principle by disposing of the issue without following the applicable rule in

article 3135 C.C.Q . , as was recently reiterated in our Court's judgments in Stormbreaker Marketing and Productions Inc. v. Weinstock [12] and Droit de la famille — 131294 . [13] [ 68 ] The rules and factors that must guide the Court in the exceptional exercise of its discretionary power were set forth in Oppenheim Forfait GmbH v. Lexus Maritime inc. [14] and reiterated by the Supreme Court in Spar Aerospace Ltd. v.

American Mobile Satellite Corp. [15] [ 69 ] In short, the court must do more than decide the criterion whereby the foreign court is "in a better position to decide"; the trial judge must also add something to justify the application of the second criterion—"exceptionally". [ 70 ] The following remarks were made by my colleague Vézina J.A. in Stormbreaker: [TRANSLATION] [77] According to the judge, where the foreign court is "in a better position to decide", "there is reason, exceptionally, to decline jurisdiction".

Although he elaborated on the grounds in his finding concerning the first point, he added nothing to justify the second —"exceptionally". [78] However, these are two different criteria. Each of them must be met. One cannot stop at the first one without giving the reasons for and justifying the second one. [79] This is clear in the very wording of

article 3135 C.C.Q. and in the 2002 teachings of the Supreme Court in Spar Aerospace Ltd. v. American Mobile Satellite Corp : [16] 69 . . . the two key parts of art. 3135 include its exceptional nature and the requirement that another country be in a better position to decide (see E. Groffier, La réforme du droit international privé québécois: supplément au Précis de droit international privé québécois (1993), at p. 130).

70 These two features of the forum non conveniens doctrine set out in art. 3135 are consistent with the common law requirements set out by the House of Lords in the seminal case, Spiliada Maritime Corp. v. Cansulex Ltd. , [1987] 1 A.C. 460, at p. 476, as well as this Court in Amchem , supra , at pp. 919-921, and Holt Cargo , supra , at para. 89. . . . [ 71 ] As for the argument that British Columbia law should govern the merits of the case, I do not agree.

I concur with the remarks of my colleague Vézina J.A. in Stormbreaker supra , as adapted for the purposes of the present case: [TRANSLATION] [99] This latter consideration does not carry much weight, in my opinion. Because the debate bears on the facts rather than the law. Because Québec courts are nevertheless familiar with common law. Because proving the law of a U.S. state is not much of a challenge, it is even commonplace. [100] And, especially, because the applicable-law criterion does not constitute an important factor in and of itself.

In all international disputes, conflicts of law are the rule, not the exception . [Emphasis added.] [ 72 ] Once admitted that the dispute between the parties can be heard before the Superior Court of Québec, I believe the circumstances as a whole in this case argue in favour of the Court remaining seized of the case.

There is no reason to decline jurisdiction, if only because the appellant now lives with her child in Montréal, she is her child's sole support, the respondent has never taken an interest in his child's well-being or provided for her needs, and travelling to Vancouver to defend her rights would be a needlessly heavy burden on the appellant. In short, the interest of the child demands that the dispute be heard in the place where she lives with her mother. [ 73 ] In conclusion, I am of the view that the condition of "exceptionally" in

article 3135 C.C.Q. is not met and, consequently, the judge erred by subsidiarily declining jurisdiction. [ 74 ] For these reasons, I propose that the Court GRANT the appeal; quash the judgment rendered in first instance by the Honourable Nicole Bénard J.S.C. on September 28, 2012; dismiss the respondent's motion for declinatory exception with respect to the Québec court's jurisdiction; and declare that the Superior Court in the District of Montréal has jurisdicton to hear the appellant's application for separation from bed and board and her application for custody and support with respect to the minor child; [ 75 ] And that the case be returned before the Superior Court of the District of Montréal, Family Division, for an appropriate ruling on the appellant's application for separation from bed and board and for provisional corollary relief as to child custody and support. [ 76 ] The whole without costs, given the nature of the case. (

s) JACQUES A. LÉGER J.A.