2015 QCCA 1412, 2015 QCCA 1412

Unofficial English Translation Droit de la famille—152222 2015 QCCA 1412 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-025358-151 (700-04-025854-156) RECORD OF PROCEEDINGS DATE: September 4, 2015 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE , J.A. MARIE-France BICH , J.A. DOMINIQUE BÉLANGER , J.A. APPELLANT COUNSEL J. H. Mtre IAN M. SOLLOWAY ( Ian Solloway ) RESPONDENT N. V. Representing herself

On appeal from a judgment rendered on June 2, 2015, by the Superior Court (the Honourable Mr. Justice Michel A. Caron), District of Terrebonne. NATURE OF THE APPEAL: Interlocutory judgment – declinatory exception – family – agreement clauses and juri sdiction of the Superior Court. Motion of Appellant to strike part of the exposé of Respondent (Articles 496.1, 507.0.1 C.C.P. , Rules 222(1), 33, 73(1) of the Rules of Practice of the Court of Appeal in Civil Matters ) Court clerk: R. Osadchuck Room: Pierre-Basile-Mignault HEARING 10:02 a.m. Start of hearing. 10:02 a.m.

Mtre Solloway withdraws his motion to strike part of the exposé of the respondent. 10:02 a.m. Submissions of Mtre Solloway. 10:43 a.m. Recess. 10:50 a.m. Hearing resumed. 10:50 a.m. The respondent need not make arguments. 10:50 a.m. Per curiam: Judgment – see page 3. Robert Osadchuck Court clerk PER CU RIAM JUDGMENT [ 1 ] The appellant appeals from an interlocutory judgment of the Superior Court, District of Terrebonne (the Honourable Mr. Justice Michel A.

Caron), rendered on June 2, 2015, dismissing his motion for a declinatory exception. [1] [ 2 ] The appellant submits that the Superior Court must decline jurisdiction because of a forum selection clause in an agreement pertaining to the custody of and support for the parties’ child and, in the alternative, pursuant to

article 3135 of the Civil Code of Québec . He believes that the Ohio authorities are better placed to decide the dispute between the parties.

Background [ 3 ] On November 22, 2000, the parties wed in Ohio, where they lived for the duration of the marriage. The appellant is an American, whereas the respondent is from Quebec. [ 4 ] On […], 2004, a child was born of their union. [ 5 ] On December 17, 2010, the parties executed two agreements concerning their separation. The first, titled “Separation Agreement”, states the terms for the partition of the family patrimony and the awarding of support to the respondent for a period of forty-eight months.

The second, titled “Shared Parenting Plan”, states the terms of the custody of and support for the couple’s child. A few days later, the respondent returned to Quebec to live there with the child, with the appellant’s consent. [ 6 ] On January 25, 2011, the parties’ divorce was confirmed by an Ohio judge. [ 7 ] On April 1, 2015, the respondent served a motion to vary child support and access rights, to seek spousal support and a compensatory allowance (unjust enrichment), and to appoint experts to assess the assets and income of the appellant, whom she describes as a successful businessman.

Although she does not seek the nullity of the two agreements, she submits that she was pressured to enter into them and that there was no real consent on her part or any information on the appellant’s financial situation. She adds that the appellant would not have agreed to let her come back to Quebec with the child had she refused to sign these two agreements. [ 8 ] On April 15, 2015, the appellant served a motion for a declinatory exception, which was subsequently amended, asking the Superior Court to decline jurisdiction on the ground that it was not the appropriate forum to hear the respondent’s motion.

JUDGMENT A QUO [ 9 ] The trial judge observed that counsel for the appellant conceded that the Superior Court of Quebec had jurisdiction to hear the dispute. Considering that the mother and child have been domiciled in Quebec for many years, the judge found that the Superior Court has jurisdiction to rule on the dispute, even though the divorce decree was granted in Ohio. [ 10 ] He refused, however, to decline jurisdiction pursuant to

article 3135 C .C.Q . Relying on several judgments, the judge found that it was in the best interests of the child for his rights and interests to be assessed in light of his domicile. He stated that

article 3135 C .C.Q . provides that Quebec courts will decline competence only exceptionally. ANALYSIS (

a) Did the judge err in failing to give effect to the forum selection clause in the agreement executed between the parties on December 17, 2010, titled “Ohio Shared Parenting Plan”? [ 11 ] The agreement relating to the financial aspects arising from the parties’ separation, i.e., the “Separation Agreement”, does not contain a forum selection clause per se. At most, it states that it is governed by the laws of the state of Ohio: 17.

LAW APPLICABLE – All of the provisions of this agreement shall be construed and enforced in accordance with the applicable law of the State of Ohio. [ 12 ] The agreement relating to the child, i.e., the “Shared Parenting Plan”, does however establish that the courts of Ohio retain exclusive jurisdiction over custody issues and any measures concerning the child (“custody, care and control”), to the exclusion of any other domestic or foreign court: 15.

PASSPORT/CITIZENSHIP – … The parties acknowledge and agree that the United States of America shall have exclusive jurisdiction over the custody, care and control of the minor child, X. More specifically, the Delaware County Court of Common Pleas, Division of Domestic Relations, State of Ohio shall retain that jurisdiction, exclusive of all other courts, foreign or domestic. [ 13 ] In the view of the appellant, this clause is mandatory and unequivocal, and the the judge therefore had to apply the agreement in accordance with the Supreme Court judgment in GreCon Dimter inc. v. J.R.

Normand inc ., [2] in which LeBel J. upheld the mandatory nature of the arbitration and forum selection clause in commercial matters.

The appellant claims that the same reasoning should apply to family matters where there is a clear, precise, and mandatory clause to which the parties have voluntarily agreed. [ 14 ] He maintains that the fact that the legislature has not restricted this type of clause to commercial matters must mean that they are valid and must be complied with in family matters as well. [ 15 ] Consequently, the Superior Court should have declined jurisdiction to hear the dispute, without needing to perform an analysis of the criteria under

article 3135 C .C.Q. In this respect, we note that the appellant’s argument has evolved since the first instance when he conceded that the Superior Court had jurisdiction. * * * * * [ 16 ] In the book concerning private international law and specifically in the

chapter on the international jurisdiction of Quebec

authorities, the Civil Code of Québec establishes different rules granting jurisdiction depending on whether disputes are extrapatrimonial or patrimonial in nature. [ 17 ] The rules governing extrapatrimonial and family disputes specifically provide that Quebec courts have jurisdiction if one of the persons concerned is domiciled in Quebec: 3141 . Les autorités du Québec sont compétentes pour connaître des actions personnelles à caractère extrapatrimonial et familial, lorsque l'une des personnes concernées est domiciliée au Québec. 3142 .

Les autorités québécoises sont compétentes pour statuer sur la garde d'un enfant pourvu que ce dernier soit domicilié au Québec. 3143 . Les autorités québécoises sont compétentes pour statuer sur une action en matière d'aliments ou sur la demande de révision d'un jugement étranger rendu en matière d'aliments qui peut être reconnu au Québec lorsque l'une des parties a son domicile ou sa résidence au Québec. 3144.

En matière de nullité du mariage et en matière de nullité ou de dissolution de l'union civile, les autorités québécoises sont compétentes lorsque l'un des conjoints a son domicile ou sa résidence au Québec ou que l'union y a été célébrée. 3145. Pour ce qui est des effets du mariage ou de l'union civile, notamment ceux qui s'imposent à tous les conjoints quel que soit leur régime matrimonial ou d'union civile, les autorités québécoises sont compétentes lorsque l'un des conjoints a son domicile ou sa résidence au Québec. 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. 3147. Les autorités québécoises sont compétentes, en matière de filiation, si l'enfant ou l'un de ses parents a son domicile au Québec. En matière d'adoption, elles sont compétentes si l'enfant ou le demandeur est domicilié au Québec. 3141 . Québec authorities have jurisdiction to hear personal actions of an extrapatrimonial and family nature when one of the persons concerned is domiciled in Québec. 3142 .

Québec authorities have jurisdiction to decide as to the custody of a child provided he is domiciled in Québec. 3143 . Québec authorities have jurisdiction to decide actions in matters of support or applications for review of a foreign support judgment that may be recognized in Québec, if one of the parties has his domicile or residence in Québec. 3144. Québec authorities have jurisdiction in matters of nullity of marriage or dissolution or nullity of civil unions if the domicile or place of residence of one of the spouses or the place of solemnization of their marriage or civil union is in Québec. 3145.

As regards the effects of marriage or a civil union, particularly those that are binding on all spouses regardless of their matrimonial or civil union regime, Québec authorities have jurisdiction when the domicile or place of residence of one of the spouses is in Québec. 3146. Québec authorities have 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. 3147. Québec authorities have jurisdiction in matters of filiation if the child or one of his parents is domiciled in Québec.

They have jurisdiction in matters of adoption if the child or plaintiff is domiciled in Québec. [ 18 ] It should be noted that the Quebec legislature clearly awards jurisdiction to Quebec authorities to hear applications in family law cases when the child, a parent, or one of the spouses is domiciled in Quebec. [ 19 ] The Quebec legislature does not state that the parties may enter into agreements subjecting extrapatrimonial disputes to a foreign authority. Quite the opposite in fact.

In family law cases, the parties are not given the option to express their will by contractually choosing where the dispute may be heard.

[ 20 ] The Quebec legislature does, however, specifically state that, in personal actions of a patrimonial nature, Quebec authorities do not have jurisdiction where the parties have chosen by agreement to subject their dispute to a foreign authority: 3148.

Dans les actions personnelles à caractère patrimonial, les autorités québécoises sont compétentes dans les cas suivants: 1° Le défendeur a son domicile ou sa résidence au Québec; 2° Le défendeur est une personne morale qui n'est pas domiciliée au Québec mais y a un établissement et la contestation est relative à son activité au Québec; 3° Une faute a été commise au Québec, un préjudice y a été subi, un fait dommageable s'y est produit ou l'une des obligations découlant d'un contrat devait y être exécutée; 4° Les parties, par convention, leur ont soumis les litiges nés ou à naître entre elles à l'occasion d'un rapport de droit déterminé; 5° Le défendeur a reconnu leur compétence.

Cependant, les autorités québécoises ne sont pas compétentes lorsque les parties ont choisi, par convention, de soumettre les litiges nés ou à naître entre elles, à propos d'un rapport juridique déterminé, à une autorité étrangère ou à un arbitre, à moins que le défendeur n'ait reconnu la compétence des autorités québécoises. 3148.

In personal actions of a patrimonial nature, Québec authorities have jurisdiction in the following cases: (1) the defendant has his domicile or his residence in Québec; (2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec; (3) a fault was committed in Québec, injury was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec; (4) the parties have by agreement submitted to them the present or future disputes between themselves arising out of a specific legal relationship; (5) the defendant has submitted to their jurisdiction.

However, Québec authorities have no jurisdiction where the parties have chosen by agreement to submit the present or future disputes between themselves relating to a specific legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authorities. (Emphasis added.) [ 21 ] As LeBel, J. notes in GreCon Dimter ,

article 3148 C .C.Q . attaches considerable importance to the principle of the autonomy of the parties. [3] [ 22 ] It must be concluded that, if the legislature had wanted to allow parties to a family dispute to enter an agreement excluding the jurisdiction of the Quebec authorities, it would have said so as clearly as it has with regard to patrimonial disputes. [ 23 ] The omission is certainly not accidental.

There are two explanations: the distinctiveness of family law and the fact that child support and custody issues are matters of public order. [ 24 ] The legislature, like the courts, [4] acknowledges the very particular legal context of family law. [ 25 ] The Minister’s comments upon the enactment of articles 3141, 3142, and 3143 C .C.Q . reflect this uniqueness and illustrate the reasons for this legislative choice: [ translation ] Commentary of the Minister of Justice on

article 3141 C .C.Q. This

article is based on the Swiss Federal Law of December 18, 1987 on International Private Law , and the Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants . The

article establishes a specific jurisdiction for personal actions of an extrapatrimonial and family nature. In accordance with

article 70

C .C.P ., the provision acknowledges the jurisdiction of the authorities of the domicile of one of the parties. The jurisdiction of the authorities of the parties’ common domicile was not retained because it can only be the domicile of one of the parties. … Commentary of the Minister of Justice on

article 3142 C.C.Q. This article, which is new law, is based on the Hague Convention on the Civil Aspects of International Child Abduction of October 25, 1980, which was implemented in Quebec through

chapter A-23.01 of the Revised Statutes. It establishes concordance as regards jurisdiction with

article 3093 relative to the law applicable to custody. It covers only custody applications independent of actions for separation as to bed and board or divorce. The Quebec court has declared that it had jurisdiction pursuant to

article 70 C .C.P . to determine the custody of a child not domiciled in Quebec when one of the child’s parents, the one with whom the child did not reside, was domiciled in Quebec. Since, under

article 33, the best interests of the child and the respect of his or her rights must be the determinative grounds on which any decision regarding a child is made, such interest and rights must be considered in light of the law of the child’s domicile, as understood under

article 80 of the new code. … Commentary of the Minister of Justice on

article 3143 C.C.Q. This

article of new law is inspired by the Swiss Federal Law of December 18, 1987 on International Private Law , the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions relating to Maintenance Obligations , and the Hague Convention of 15 April 1958 Concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children . The

article acknowledges that the authorities of the domicile of one of the parties have jurisdiction, which is already stipulated under

article 3141. It adds a new criterion for establishing jurisdiction, that of the residence of one of the parties. The social aspect of support and its urgent nature explain this choice.

Because support recipients are by definition in need, it appears unrealistic to force them to bring an action abroad. … [ 26 ] The legislature therefore establishes the following principles: (1) the interests of the child and the respect of its rights must be examined in light of its domicile; (2) the social aspect of support and its urgent nature make it unrealistic to oblige a support recipient, who is by definition in need, to bring an action abroad. [ 27 ] This choice was inspired by the fact that custody and child support are considered to be public order issues.

The comments made by Mtre Michel Tétrault illustrate the situation in Quebec clearly: [ translation ] The agreement is a document that articulates the understanding between the parties on one or several aspects of the break-up. On some of these aspects, such as custody and support, the court is not bound by the parties’ agreement because they are matters of public order.

An agreement must therefore be seen as a suggestion made by the parties to the court, which retains complete jurisdiction to rule on corollary relief. ... [5] [ 28 ] In fact, it appears that the legislature also proscribed sending disputes on family matters or public order issues to arbitration (2639 C .C.Q .), showing once more its determination to subject these disputes to Quebec authorities. [ 29 ] The Quebec legislature thus made a very clear decision to assert that it was better that the interest of the child be examined [ translation ] “in light of its domicile”. [6] [ 30 ] It follows that, from the moment it was established that the child and the respondent were domiciled in Quebec, the Court had jurisdiction to hear the support and custody applications concerning them.

There is no doubt that the clause in the agreement concerning the child does not deprive the Superior Court of its jurisdiction. The judge was therefore well founded to find that the Superior Court had jurisdiction and consider the application under

article 3135 C.C.Q. (

b) Did the judge err in his application of

article 3135 C.C.Q. and the relevant test to determine the forum non conveniens? [ 31 ] In the alternative, the appellant argues that the judge failed to correctly apply the suppletive measure of

article 3135 C .C.Q . and in particular the ten criteria listed in Oppenheim : [7] (1) the residence of the parties, witnesses, and experts; (2) the location of the evidence; (3) the place where the contract that gave rise to the application was negotiated and executed; (4) the existence and content of another action pending before a foreign jurisdiction and the stage of such proceeding; (5) the location of defendants’ assets;

(6) the applicable law; (7) the advantages conferred upon the plaintiff by its choice of forum, if any; (8) the interests of justice; (9) the interests of the parties; (10) the need to have the judgment recognized in another jurisdiction. [ 32 ] First, it is incumbent upon the party wishing to set aside the general rule to show that it would be fairer and more efficient for the case to be referred to another authority pursuant to

article 3135 C .C.Q ., given the exceptional circumstances of the case. [8] [ 33 ]

Article 3135 C .C.Q . asks judges to weigh the protection granted a person to proceed in Quebec against any circumstances that might allow the case to be characterized as exceptional. [9] [ 34 ] The appellant’s argument is essentially that the Ohio courts are better suited to determine the dispute between the parties. [ 35 ] He states that all the witnesses who are to be heard in this case reside in Ohio except for the respondent and the child, that almost all the physical evidence relevant to the dispute is in Ohio, that both agreements were negotiated in Ohio, that the appellant has no assets in Quebec, that the applicable law is that of Ohio in accordance with clause 17 of the agreement and

article 3096 C .C.Q ., which states that it is the law of the State where the divorce decree was granted that continues to govern any subsequent applications to amend. [ 36 ] The appellant’s argument fails to convince us, for the following reasons. [ 37 ] As Vézina J.A. clearly explained in Stormbreaker , the burden does not merely consist of asserting that the authority of another State is better suited to rule on the dispute. The demonstration must take into account a second condition: that there are exceptional circumstances in the case. [ 38 ] In principle, the criteria must be analyzed comprehensively.

None of them are individually determinative. It is also worth noting that, in family matters, the courts have adapted these criteria to include the best interests of the child, the main home base of the child, and the custodial parent’s place of residence. [10] [ 39 ] The trial judge considered these criteria, citing several judgments that assigned great importance to the fact that the interests of the child are better served when analyzed in light of its domicile, giving determinative weight to that of the child and mother. [ 40 ] The judge did not err in so doing. As this Court pointed out in H.C. v.

M.F. , [11] custody issues are best served when they are determined in the place of the child’s domicile, which is more in keeping with its best interest and a better administration of justice. [ 41 ] I would add that, as a resident of Quebec, the child has the right to be treated the same as any other child in Quebec when it comes to determining his support needs. Custody and access rights should be determined under Quebec law, as per

article 3093 C .C.Q . [ 42 ] In this case, it should be noted that the respondent alleges that she is significantly less financially well-off than the appellant. To require her to argue her son’s rights in Ohio risks resulting in her having to surrender those rights. Ultimately, this is not in the best interests of the child. The same is true with respect to asserting her own right to support. [ 43 ] Thus, even if the laws of Ohio apply to applications regarding the separation agreement, the filing into evidence of a foreign statute, especially one from an American state, is not exceptional.

To paraphrase Vézina J.A. in Stormbreaker , it is not a great challenge, but a commonplace occurrence. [12] [ 44 ] In closing, while some of the criteria appear to favour the jurisdiction of the Ohio courts (where some of the witnesses and the appellant reside, and where the appellant’s assets are situated), a comprehensive analysis of the applicable factors does not reveal that these courts would be a clearly more appropriate forum than the Quebec authorities. FOR THESE REASONS, THE COURT: [ 45 ] DISMISSES the appeal without costs, given the nature of the dispute. YVES-MARIE MORISSETTE, J.A.

MARIE-FRANCE BICH, J.A.

DOMINIQUE BÉLANGER, J.A.