2022 QCCA 1064, 2022 QCCA 1064

Droit de la famille — 221354 2022 QCCA 1064 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029697-216 ( 500-04-077374-214 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). DATE: August 4, 2022 CORAM: THE HONOURABLE BENOÎT MOORE, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A.

APPELLANT COUNSEL R. M. Mtre Miray Zahab ( Zahab Legal ) Absent RESPONDENT COUNSEL O. T. Mtre leila Sadeg ( Jurinovo Avocats ) By videoconference On appeal from a judgment rendered on August 5, 2021 by the Honourable Katheryne A. Desfossés of the Superior Court , District of Montreal . NATURE OF THE APPEAL: Custody – Application for Declinatory Exception granted – Child’s domicile. Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING

9:35 Commencement of the hearing. Continuation of the hearing held on August 1, 2022. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 3. 9:36 Conclusion of the hearing.

Lesly Ramos, Clerk at the hearing JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). [ 1 ] This is an appeal from a judgment rendered on August 5, 2021, by the Superior Court, District of Montreal (the Honourable Madam Justice Katheryne A.

Desfossés), [1] granting Respondent’s declinatory exception and dismissing Appellant’s motion for custody, child support and a safeguard order on grounds of lack of jurisdiction and, subsidiarily, forum non conveniens and lis pendens . [ 2 ] In her reasons to dismiss, the judge took careful note of the parties’ opposing viewpoints with respect to the reason for their move from Town A to Town B in October 2018, the circumstances that led to Appellant’s and the child’s return to Jordan in December 2019, the reason Respondent obtained a travel ban against the child in August 2020 and, finally, Appellant’s true motivation for returning alone to Town B in November 2020.

Irrespective of those opposing viewpoints, the judge relied on the following undisputed facts to conclude that the child’s living environment, and thus domicile, was not Town C but rather Town A: - The child spent a total of nine months in Town B over her five years of life; - The child has been living in Town A with Appellant and her grandparents since December 30, 2019; - The maternal grandmother has been delegated legal custody of the child since January 2021 pursuant to an agreement signed by Appellant and registered before the Jordanian courts. [ 3 ] Although implicit from her reasons, it is to be understood that the judge did not consider that the parties—be it when they first came to Town C in 2018 or during various subsequent travels back and forth between Town A and Town C in 2019—changed their domicile from Jordan to Quebec, nor that they were able to provide evidence allowing her to draw that conclusion. [ 4 ] Hence, considering that the child’s usual residence and living environment is in Town A, the judge determined that the child was not domiciled in Town C and, therefore, Quebec courts did not have jurisdiction to decide the custody matter. [2] [ 5 ] Lastly, the judge noted that should she be wrong about the child’s domicile, she would nonetheless have declined jurisdiction on the basis of forum non conveniens and lis pendens , given that Jordan is where the parties married, where the child was born and where the child’s legal custodian is located, as well as being the place where several ongoing legal proceedings of a similar nature to those before her have been instituted. [3] [ 6 ] This appeal raises the issue of the domicile of the child—either Town C or Town A—in order to attribute, or not attribute, jurisdiction to the Quebec authorities over matters related to custody of the child.

After a careful review of the evidence adduced at first instance, the Court considers it to be insufficient to demonstrate that the child’s domicile is in Town B, and the appeal will therefore be dismissed, albeit for reasons that differ from those of the trial judge. *** [ 7 ] The Superior Court’s jurisdiction over Appellant’s application was contingent on the child’s domicile being in Town C, as provided for by

article 3142 C.C.Q. [4] Said domicile is determined in accordance with

article 80 C.C.Q. , more specifically its second paragraph, given that the parties did not share a common domicile at the time Appellant instituted her proceedings: 3142. Québec authorities have jurisdiction to decide as to 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.

80. The domicile of an unemancipated minor is that of the tutor. Where the father and mother exercise the tutorship but have no common domicile, the domicile of the minor is presumed to be that of the parent with whom the minor 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. [ 8 ] Even though is it undisputed that, from December 2019 until at least November 2020, the child was living with Appellant in Town A,

article 80 C.C.Q. creates a presumption that the domicile of the child is with that of the parent with whom the child usually resides, in this case Appellant, unless the domicile has been fixed elsewhere by the court. [ 9 ] Appellant is faced with two difficulties. Firstly, according to a Jordanian court document, The Hashemite Jordanian Woman Supreme Judge Department , [5] the child has been under the legal custody of Appellant’s mother in Town A since January 2021.

Furthermore, even though no one testified or gave any indication of the legal significance or implication of such a document, its content provides that the grandmother also has the responsibility “to educate and care for her in religion, morals and health [and] is trustworthy and capable of raising and caring for her in religion, morals and health ”. Prima facie at least, the Jordanian court document is a delegation of legal custody to Appellant’s mother in Town A that could possibly be interpreted as a delegation of tutorship. Should this be the case, according to

article 80 C.C.Q. , the child’s domicile is presumed to be that of her grandmother in Jordan. [ 10 ] Secondly, if the Court were to consider that the Jordanian court document is not per se a delegation of tutorship or does not have the effect of removing Appellant’s or Respondent’s exercise of tutorship, and that both parents therefore continue, notwithstanding the grandmother’s custody of the child, to exercise tutorship within the meaning of

article 80 C.C.Q. , the evidence does not provide any element indicating where Appellant has her domicile.

Although Appellant represented to this Court that she has been domiciled in Quebec since November 2020, she needed to demonstrate not only her establishment in Quebec (material component), but also her voluntary intention to make Quebec her principal establishment (intellectual component). [6] [ 11 ] It is well established that where jurisdiction is challenged and the very facts that go to establishing jurisdiction are disputed, the onus of proving prima facie jurisdiction falls on the plaintiff. [7] It is further well established that where the evidence is contradictory or not sufficiently convincing and the judge is unable to determine where the truth lies, the judge must find against the party who has the burden of proof. [8] As the judge was unable to determine, based solely on credibility, which version of the events occurred, it follows that Appellant failed to meet the evidentiary burden of proof which the law places upon her. [ 12 ] Therefore, in light of the evidence presented—or the lack thereof—this Court cannot conclude that the child’s domicile is in Quebec within the meaning of

article 80 C.C.Q . No evidence was adduced to prove a change of domicile from Jordan to Quebec or to prove that Appellant is domiciled in Quebec. [ 13 ] Lastly, we find no reviewable error in the trial judge’s exercise of discretion under forum non conveniens and lis pendens .

The standard or review in this regard is onerous, and appellate intervention is open only “if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision”. [9] The evidence in the record, particularly the parallel proceedings before Jordanian courts and the delegation of legal custody, provide sufficient support for the trial judge to have exercised her discretion in the manner she did. FOR THESE REASONS, THE COURT: [ 14 ] DISMISSES the appeal, without costs given its nature. BENOÎT MOORE, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A.