2022 QCCA 362, 2022 QCCA 362

Droit de la famille — 22401 2022 QCCA 362 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029734-217 (500-04-060805-133) DATE: March 8, 2022 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. SOPHIE LAVALLÉE, J.A. PETER KALICHMAN, J.A. G. D. APPELANT – Applicant v. J. A. RESPONDENT – Defendant JUDGMENT [ 1 ] The Appellant (the Mother ) appeals with leave, a judgment rendered orally on September 15, 2021 and transcribed on October 14, 2021 by the Superior Court, district of Montreal (the Honourable Gary D.D.

Morrison), dismissing her application contesting that Court’s jurisdiction over the Application to Modify Custody, Child Support, the Repatriation of the Minor Children to Canada brought by the Respondent (the Father ). * * * [ 2 ] The parties are the parents of two minor children, both 10 years old. The children were born in Quebec. [ 3 ] From 2013 to 2019, the parties shared custody of the children in accordance with a consent agreement. [ 4 ] In 2019, the Mother chose to move to Belgium. The parties signed a modified agreement which addressed certain issues arising from the Mother’s relocation.

In particular, it provides that the children would accompany the Mother to Belgium and that the parties would “re-evaluate” one year after the relocation.

The modified agreement was homologated by the Superior Court. [ 5 ] The children thus moved to Belgium with the Mother in June, 2019 and have been living there ever since. [ 6 ] In April, 2021, the Father brought an application before the Superior Court of Quebec to modify child custody and child support and to order that the children be repatriated to Canada (the Application to Modify Custody ). [ 7 ] The Mother responded with an application for declinatory exception which was heard on September 10, 2021. [ 8 ] The Judge dismissed the Mother’s application on the basis that in homologating the modified agreement, the Court authorized the children to move to Belgium on a temporary basis.

According to the Judge, the homologation judgment did not have the effect of changing the children’s domicile, which had always been in Quebec. * * * [ 9 ] The Mother raises two grounds of appeal. [ 10 ] First, she maintains that the Judge erred in law in failing to apply the presumption set out at

Article 80 of the Civil code of Québec ( C.c.Q . ). Second, the Mother asserts that the judge committed a palpable and overriding error of fact in failing to recognize that when the Application to Modify Custody was brought, the children were clearly and unequivocally domiciled in Belgium. [ 11 ] For the reasons that follow, the Mother’s appeal is dismissed. [ 12 ] The Mother is correct in stating that according to

Article 80 C.c.Q. , when parents have no common domicile, as is the case here, the domicile of their children is presumed to be that of the parent with whom they usually reside, which, in this case, would be her. However, the Judge determined that this presumption did not apply because, in accordance with that same provision, the court had fixed

the domicile of the children elsewhere, namely, in Quebec.

This can clearly be understood from paragraphs 36-38 of the judgment: [36] In the Court’s view, by homologating the parties’ agreement, the Court authorized a temporary move by the children on a trial basis, one which was to be reviewed one year after the move, hence in June 2020. [37] By so doing, the Superior Court of Quebec did not, in any final sense, authorize the children’s move “for the purposes of establishing a new domicile outside Quebec” within the meaning of the term as used by the Court of Appeal in the 2018 case cited above. [38] In this regard, and contrary to what Madam argues, the children’s domicile did not change as of the moment of their move in June 2019. [ 13 ] The Judge arrived at this conclusion on the basis of the evidence before him, including correspondence between the parties and their respective sworn statements.

In particular, the Judge referenced the following: ➢ The Mother’s admission that the children’s relocation “could always become permanent” [1] , which, in his view, contradicted her position that it was already permanent; and ➢ The Mother’s e-mail to the lawyer preparing the agreement in which she referred to the children’s first year in Belgium as a “trial year”. [2] [ 14 ] That said, it is important to clarify that it is not simply because the move was held to be temporary that the domicile of the children did not change. One does not exclude the other.

It is rather because the homologation judgment fixed the domicile of the children that the presumption of

Article 80 C.C.Q . was held not to apply, as the Judge explains at paragraph 44 of the judgment: [44] In the Court’s view, the Superior Court by way of its homologation judgement had the effect of maintaining the minor children’s domicile in Quebec subject to an agreement to the contrary. Accordingly, the presumption expressed at

Article 80 C.C.Q., as cited above, does not apply in the present case. [ 15 ] The Mother clearly disagrees with the Judge’s

interpretation of the agreement and of the judgment homologating it, but she has failed to demonstrate a manifest and determinative error in his application of the law to the facts at issue. [ 16 ] The Mother argues that the situation is essentially the same as that which was before the Court in Droit de la famille – 18126 [3] , in which it was held that the Superior Court no longer had jurisdiction to modify a previous access order. However, unlike in that case, the Judge here concluded that the court had not authorized the custodial parent to permanently move with the child to another jurisdiction.

Consequently, while Droit de la famille – 18126 does set out the principles governing a challenge to jurisdiction in circumstances such as those at issue here, the facts dictate a different result. [ 17 ] The Mother’s second ground of appeal must also fail.

Essentially, she argues that even if the Superior Court did not authorize that the children move permanently to Belgium, the facts demonstrate that their lives are now firmly established there such that the Court should recognize the change in their domicile. [ 18 ] It is a fundamental precept of private international law governing child custody that in order to safeguard the interests of the child, the rules of territorial jurisdiction must discourage illicit displacement and forum shopping. [4] What the Mother proposes would effectively encourage parents to unilaterally transform a temporary relocation into a permanent one in order change the child’s domicile.

The Court cannot endorse such an approach. [ 19 ] At any rate, the evidence that the Mother relies on to establish domicile is equally consistent with the judge’s determination that the relocation was temporary and there is no manifest and determinative error in that finding. FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES the appeal, without legal costs, given the nature of the matter. ROBERT M. MAINVILLE, J.A. SOPHIE LAVALLÉE, J.A. PETER KALICHMAN, J.A. Mtre Daniel Romano Mtre Jing Ou KALMAN SAMUELS, Q.C. & ASSOCIATES For the Appellant Mtre Lori Boyadjian AZRAN & ASSOCIÉS AVOCATS For the Respondent

Date of hearing: February 25, 2022