2014 QCCA 2188, 2014 QCCA 2188

Droit de la famille — 143017 2014 QCCA 2188 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-024123-135 (700-04-023136-135) DATE: December 2, 2014 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. GENEVIÈVE MARCOTTE, J.A. JEAN-FRANÇOIS ÉMOND, J.A. V. R. APPELLANT – Defendant v. M. S. RESPONDENT – Plaintiff JUDGMENT [ 1 ] The appellant appeals from an interlocutory judgment of the Superior Court, District of Terrebonne (the Honourable Mr. Justice Steve J.

Reimnitz) rendered on December 3, 2013, that dismissed the appellant's declinatory exception and recognized the jurisdiction of the Quebec court to adjudicate the custody of the child. [ 2 ] For the reasons of Émond, J.A., with which Hilton and Marcotte, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal, without costs; [ 4 ] REVERSES the judgment of the Superior Court; [ 5 ] MAINTAINS the appellant's declinatory exception. ALLAN R. HILTON, J.A. GENEVIÈVE MARCOTTE, J.A. JEAN-FRANÇOIS ÉMOND, J.A.

Mtre Guillaume Benoit-Gagné Mtre Elizabeth Tran Mtre Hugo Legris Delahaye Albert Legris Delahaye, regroupement nominale d’avocats For the appellant Mtre Allen Marcoux Allen Marcoux inc. For the respondent Date of hearing: September 26, 2014 REASONS OF ÉMOND, J.A.

OVERVIEW [ 6 ] In the fall of 2012, the respondent took the parties’ child and left the family home in British Columbia because of the conjugal violence she claims to have suffered. She returned to live in Quebec, her residence of origin, and began custody proceedings. To justify the jurisdiction of the Superior Court of Quebec, she argued that the child's usual residence and therefore her domicile were now in Quebec. [ 7 ] At a preliminary stage, the appellant filed a declinatory exception asking the Superior Court to decline jurisdiction in favour of the courts of British Columbia.

He argued that the child's removal, which happened without his knowledge or consent, cannot serve as a legal basis for a change of domicile. [ 8 ] On December 3, 2013, this declinatory exception was dismissed. [1] The judge found that the child's domicile was not in British Columbia but in Quebec, where she has usually resided with her mother since October of 2012. Although he recognized that the child's removal took place without the appellant's knowledge or consent, the judge found that it was not wrongful.

Rather, he found that it was necessary for the respondent to move to ensure her physical safety and that of the child. [ 9 ] The judge added that even if he had found that the removal was wrongful, he would nevertheless have reserved jurisdiction for safety reasons by applying the rules of forum non conveniens set out in articles 3135 C.C.Q. and 3140 C.C.Q. [ 10 ] On appeal, the appellant reiterates that the removal of the child without his knowledge or authorization was wrongful and that the child's domicile is still in British Columbia.

He bases his position on Droit de la famille – 3451 , [2] a judgment of this Court, which states the principle whereby the wrongful removal of a child may not provide the basis for a legal change of domicile under the rules of international jurisdiction set out in articles 3141 to 3747 C.C.Q. He does not admit to having committed the acts alleged against him and submits that even if they were accepted as fact, they do not excuse the removal of the child.

Essentially, he argues that the respondent is no safer in Quebec than she would be in British Columbia. [3] In this sense, he argues that the removal of herself and the child to Quebec constituted an inappropriate and excessive measure.

In his view, other, less drastic measures could have been taken to properly ensure her safety and that of the child in British Columbia. [ 11 ] His appeal thus raises several issues concerning the jurisdiction of Quebec courts to hear an application for the custody of a child with one parent who, being a victim of conjugal violence, establishes residence in Quebec with the child to flee the violent parent. [ 12 ] These issues concern the two opposing concepts of jurisdiction and the safety of the child. BACKGROUND [ 13 ] In 2007, the respondent left Quebec to work in British Columbia.

Initially, she intended to stay there only temporarily. After returning briefly to Quebec, however, she went back to British Columbia and settled there permanently. [ 14 ] In January of 2010, she met the appellant. After dating for a few months, they decided to live together. [ 15 ] In early 2011, the respondent became pregnant, but she was not able to carry the child to term. [ 16 ] In April of 2011, she became pregnant again.

This time, everything went well. [ 17 ] On [....], 2011, she gave birth to the child. [ 18 ] In the months following the child's birth, the relationship between the parties became difficult. According to the

summary evidence administered at the hearing, the problems were caused by the appellant's violent behaviour. [4] The situation became so confrontational that in October of 2012, the respondent, with the help of police officers, left the family residence with the child and took refuge in a women's shelter. She fled the appellant because he physically attacked her on several occasions, sometimes in front of the child. [ 19 ] During her short stay at the shelter, she received threatening letters and emails from the appellant.

She states that he even tried to call her and that he walked around near the shelter hoping to find her. After two weeks, fearing that she would run into the appellant and having been told by a lawyer in British Columbia that the steps to obtain authorization from a court to move back to Quebec could take a long time, the respondent left British Columbia with the child and moved to Quebec. [ 20 ] It goes without saying that she did not try to inform the appellant or obtain his permission before moving. [ 21 ] Once in Quebec, she stayed with a friend until late December of 2012.

After that, she lived at her uncle’s home for a few weeks until she moved into an apartment in the suburb of City A with her child. [ 22 ] In the meantime, the appellant had begun taking steps to obtain custody of the child. To this end, he filed a proceeding before the Provincial Court of British Columbia. As a matter of fact, this proceeding was instituted on October 17, 2012, even before the respondent left British Columbia with the child. The appellant unsuccessfully attempted to serve the proceeding on the respondent while she was staying with her friend in Quebec.

She would not accept service because she feared having to return to British Columbia to argue the issue of custody. [ 23 ] After a few fruitless attempts, on January 31, 2013, she was finally served with the custody proceeding. [ 24 ] On February 7, 2013, the respondent instituted her own custody proceedings before the Superior Court of Quebec. [ 25 ] On July 18, 2013, the appellant contested the motion by asking the Superior Court to decline jurisdiction in favour of the courts

of British Columbia, which in his view have sole jurisdiction to decide the custody issue. [ 26 ] On November 15, 2013, the Superior Court heard the case. Only the respondent testified because the appellant was in British Columbia. [ 27 ] On December, 3, 2013, the trial judge dismissed the declinatory exception. Even though the respondent failed to inform the appellant or obtain his authorization before moving to Quebec with the child, the judge refused to characterize the removal as wrongful. He concluded that removal for the safety of a parent and child does not constitute wrongful removal: [ translation ] [54] The Court considers that the application of

article 3142 C.C.Q. in itself is sufficient to justify dismissing the declinatory exception. The child’s domicile is Quebec and her current domicile, which is Quebec, is not the result of a wrongful removal. [55] The mother’s change of residence in this matter is not wrongful. It was done to ensure her physical safety and that of her child.

The events experienced by S. and summarized at the beginning of this judgment are sufficient, in the Court’s view, to conclude that S.’s departure cannot be an obstacle to the establishment of her domicile in Quebec. ... [ 28 ] In the alternative, he added that if he had found that the child's domicile was in British Columbia, he would have relied on articles 3135 and 3140 C.C.Q. to reserve jurisdiction because he was convinced this would better ensure the safety of the mother and child.

His conclusion implies that, in the circumstances, the departure of the mother and child from British Columbia to Quebec for safety reasons was an appropriate solution, or perhaps even the only one. [ translation ] [56] If this

interpretation was considered to be erroneous, the Court finds that the theory of forum non conveniens under

article 3135 C.C.Q. and the way in which it was applied in A. A. v. S. Y. also ground a conclusion that the declinatory exception must be dismissed. ... [82] The Court adds that

article 3140 C.C.Q. justifies the conclusion dismissing the declinatory exception. ... [84] It is the Court’s view that given the evidence concerning R.’s very violent behaviour toward S. and indirectly toward the child, S. would suffer serious inconveniences if the Court refused to recognize Quebec’s jurisdiction.

The measure that the Court considers necessary for the protection of S., who is currently in Quebec, is to refuse to grant the declinatory exception. [ 29 ] The trial judge was also sensitive to the fact that referring the case to the competent authorities in British Columbia would impose a significant economic burden on the respondent. Because he considered her to be a victim of the appellant's violent behaviour, he felt that such a referral would be unjust. [ translation ] [79] Here, one can stress that it is S. who pays all of her child’s living expenses.

To order her to go and defend herself before R.’s forum on the issue of their child’s custody would place an additional financial burden on her. No evidence was adduced concerning R.'s financial situation. As for S., her income is modest. Before she held her current job, she was a welfare recipient. She is in a situation where transferring the file to British Columbia would cause her to incur substantial expenses. That is not in the interest of the child, because such expenses will be assumed by the mother over and above everything that she already pays for the child’s keep.

One might think that if R. had wanted to provide support, despite the conflict with the mother, he would have proved it. [ 30 ] He did not, however, take into account the burden he imposed on the appellant by refusing his application. Despite the fact that the appellant has lived in British Columbia for several years, in the judge's opinion he is still a Quebecer, especially since his parents still live here: [ translation ] [80] The Court adds that the court where R. will have to argue his case is not foreign to him. R. is a Quebecer.

His family lives in Quebec, as least his immediate family, such as his father and mother. R. is not being obliged to submit arguments before a court whose laws are substantially different from the laws of British Columbia, where he lives. [ 31 ] Ultimately, although no order to return the child was issued – the appellant agreed that the child could continue to live in Quebec during the custody proceedings – the judge found that by confirming the jurisdiction of the Quebec courts, the safety of the respondent and the child would be better ensured. THE ISSUES [ 32 ] There are two issues in dispute: (

i) Was the judge justified in finding that the removal was not wrongful when the child's domicile was changed? (ii) Was it open to the judge to refer to the rules of forum non conveniens in articles 3136 and 3140 of the C.C.Q. ? ANALYSIS I – The removal of the child

[33] Although the child’s removal took place without the appellant's knowledge, the judge found that it was not wrongful because itwas necessary for the safety of the respondent and the child. [34] He therefore found that the child's domicile was not in British Columbia but in Quebec, where she has been residing with hermother since October of 2012. [35] In my view, he was wrong.

Here is why. [36] Articles 3093 and 3142 C.C.Q. state that issues relating to the custody of a child are governed by the law of the child's domicileand that Quebec authorities have jurisdiction to decide this issue if the child's domicile is Quebec. They read as follows: 3093. La garde de l'enfant est régie par la loi deson domicile. 3142. Les autorités québécoises sontcompétentes pour statuer sur la garde d'un enfantpourvu que ce dernier soit domicilié au Québec. 3093. Custody of the child is governed by thelaw of his domicile. 3142.

Québec authorities have jurisdiction todecide as to the custody of a child provided he isdomiciled in Québec. [37] As for the notion of the child's domicile referred to in articles 3093 and 3142 C.C.Q., it is defined in

article 80 C.C.Q.: 80. Le mineur non émancipé a son domicile chezson tuteur. Lorsque les père et mère exercent la tutelle maisn'ont pas de domicile commun, le mineur estprésumé domicilié chez celui de ses parents aveclequel il réside habituellement, à moins que letribunal n'ait autrement fixé le domicile del'enfant. 80. An unemancipated minor is domiciled withhis tutor.

Where the father and mother exercise thetutorship but have no common domicile, theminor is presumed to be domiciled with theparent with whom he usually resides unless thecourt has fixed the domicile of the childelsewhere. [Emphasis added.] [38] The principles set out in articles 80, 3093 and 3142 C.C.Q. mean that when the father and mother have no common domicile,the child is "presumed" to be domiciled with the parent with whom he or she "usually resides".

If this place of usual residence is inQuebec, the custody of the child must be determined by the Superior Court of Quebec applying Quebec law. [39] That being the case, it is well established that the child's "usual residence" may not be changed according to one parent’s whimwithout the authorization of the other custodial parent. In a situation involving a recent separation that results in such a removal, thechild's usual residence remains what it was before being removed. [40] This principle was set out in Droit de la famille – 3451, where the Court noted that the notion of usual residence in

article 80does not permit any discussion of the determination of the domicile based on the wish of either of the parents to establish domicile in oneplace instead of another. Chamberland J.A. wrote:[5] [translation] The choice of this notion of "usual residence" is deliberate. It avoids any discussion of the intention of either of the parties to establishdomicile in one place rather than another.

It introduces objective and concrete elements into the determination of the domicile of theminor child of a couple who are no longer cohabiting that are more easily measurable by the court when seeking out the intentions of theparties. It is a well-known notion in international law (see in particular what I wrote on this subject in Droit de la famille – 2454, (QC CA), [1996] R.J.Q. 2509 at 2523–2524). Therefore, in my view the trial judge was wrong to rely on the respondent's intention "to remain in Quebec" to find that the SuperiorCourt had jurisdiction to rule on W.'s custody.

When the judge applied the [translation] "usual residence" test, he should have found thatwhen the dispute between the parties came before him in early February of 1999, W's [translation] "usual residence" was in Toronto,Ontario. He was born there and lived there with his two parents from his birth until January 28, 1999. [41] In that judgment, this Court added that any parent who establishes residence in another place with the couple's child without theknowledge or consent of the other parent and with the intention of making it his or her new domicile and that of the child is removing thechild wrongfully.

It found that such a removal may not serve as a legal basis for changing the child's domicile:[6] [translation] The child was removed without the appellant's consent or even his knowledge. Nor did the appellant acquiesce to the removal once hewas informed of events; his actions prove it. It was therefore a wrongful removal, carried out in violation of the appellant's right tocustody. Because it was a wrongful removal, I believe that it would be entirely inappropriate to take facts that took place subsequent to thisremoval into account when determining where the child "usually resides".

The wrongful removal of a child cannot form the basis of alegal change of the child's domicile. If this were not so, parents who are unsatisfied with one jurisdiction would be encouraged simply totake justice into their own hands and change jurisdictions in the hope, conscious or not, that they might find a more sympathetic ear in

the courts there. [ 42 ] I agree with this analysis. Allowing a child's domicile to be changed at the whim of one parent and without the knowledge of the other would be tantamount to allowing a parent who acts unilaterally to benefit from his or her own fault to the detriment of the child, who is thereby deprived of the presence of one parent. Such a situation is unacceptable. [ 43 ] The judge therefore erred in law by finding that the child's removal was not wrongful. [ 44 ] Of course, issues concerning the safety of the child are important.

This sensitive and contentious issue, however, cannot serve as the basis for establishing the child's usual residence and thus her domicile. The respondent might have been seeking a form of protection when she moved with the child without the appellant's knowledge, but she did not modify the child's domicile. [ 45 ] The child was born in British Columbia, which was her usual residence until the separation. The appellant had in fact instituted proceedings there seeking a decision on the custody of the child before she was removed to Quebec.

The fact that the respondent moved to Quebec because she feared for her safety and the child's did not modify the latter's domicile. [ 46 ] I would add that the respondent’s fear of the appellant is not a determinative factor in identifying the child's domicile and thus the location of the custody trial. The apprehended risks, justified or not, will in no way be modified by whether the dispute is heard in Quebec or in British Columbia. [ 47 ] It is inevitable that, in a future trial, the respondent will have to face the appellant.

II – Application of articles 3135 and 3140 of the Civil Code [ 48 ] In his judgment, the judge set out alternative reasons, stating that the rules of forum non conveniens in

article 3135 C.C.Q. and

article 3140 C.C.Q. allowed him to dismiss the declinatory exception. Because of the fear for the child's safety, he deemed that he was justified in exercising his judicial discretion under these provisions to find that the Superior Court had jurisdiction. [ 49 ] These articles read as follows: 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. 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 State are in a better position to decide the dispute. 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. 3140.

In cases of emergency or serious inconvenience, Québec authorities may also take such measures as they consider necessary for the protection of a person present in Québec or of the person's property if it is situated there. [ 50 ] I am of the view that in several respects this finding is wrong in law. [ 51 ] First of all, the judge erred in principle by basing himself on

article 3135 C.C.Q. to deny jurisdiction to the competent forum in favour of the f orum conveniens represented by Quebec. The rule in

article 3135 C.C.Q. does not apply in cases like this one, where the foreign authority has jurisdiction to hear a dispute. [7] [ 52 ] This provision applies in situations where the competent Quebec authority declines jurisdiction in favour of a competent authority in another State that is in a better position to decide the dispute. Therefore, the trial judge could not rely on Bich J.A.'s analysis in Droit de la Famille – 131294 [8] to justify his position. As valid as it may be, that analysis concerns

article 3135 C.C.Q. , which does not apply here. [ 53 ] The trial judge also could not rely on

article 3140 C.C.Q. to grant Quebec the status of forum conveniens . This provision is exceptional and applies only in cases of emergency or serious inconvenience compromising the physical or psychological health of a person present in Quebec. [ 54 ] As author Claude Emanuelli explains,

article 3140 C.C.Q. contemplates exceptional situations. Measures taken under this provision should be provisional and temporary only. It cannot be relied on in cases requiring a permanent determination of the rights of the parties, such as custodial rights. He writes the following: [9] [ translation ] In cases of emergency or serious inconvenience (significant delay, exorbitant costs) caused by following the traditional rule, Quebec authorities may adopt such measures. … For example,

article 3140 makes it possible to protect a foreign minor present in Quebec, to temporarily commit a foreign person passing through Quebec who, through his or her behaviour, threatens his or her own health and improvidently squanders his or her property, or to hear a motion for interlocutory injunction seeking to prevent a person domiciled outside Quebec from having an abortion in Quebec. [ 55 ] Here, only an express request by the respondent would have allowed the judge to confer on the Quebec authorities a jurisdiction

that they do not possess [10] on the basis of

article 3136 C.C.Q. , which provides that a Quebec authority that does not have jurisdiction to hear a dispute may hear it if proceedings cannot possibly be instituted in a foreign jurisdiction of if the institution of such proceedings cannot be required: 3136. Bien qu'une autorité québécoise ne soit pas compétente pour connaître d'un litige, elle peut, néanmoins, si une action à l'étranger se révèle impossible ou si on ne peut exiger qu'elle y soit introduite, entendre le litige si celui-ci présente un lien suffisant avec le Québec. 3136.

Even though a Québec authority has no jurisdiction to hear a dispute, it may nevertheless hear it provided the dispute has a sufficient connection with Québec, if proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required. [ 56 ] Moreover, such a motion would have required the respondent to prove that it was impossible to institute proceedings in British Columbia or that she could not be required to institute them there.

The trial judge did not analyze these criteria. [ 57 ] As this Court decided in Lamborghini (Canada) inc. v. Automobili Lamborghini S.P.A ., the purpose of

article 3136 C.C.Q. is to settle access to justice problems when the foreign forum that normally has jurisdiction is inaccessible for exceptional reasons, such as impossibility in law or nearly absolute practical impossibility: [11] [ translation ] More accurately, according to legislative sources, this provision represents a narrow exception to the normal rules of jurisdiction. It is not intended to allow a Quebec court to appropriate jurisdiction it would not otherwise have.

Rather, it is designed to solve certain access to justice problems for litigants who find themselves in Quebec, when the foreign forum that would normally have jurisdiction is inaccessible for exceptional reasons such as impossibility in law or nearly absolute practical impossibility .

We may consider, for example, situations of impossibility arising from a breakdown in diplomatic or commercial relations with a foreign State, or the need to protect a political refugee, or the existence of a serious physical danger if proceedings are brought before the foreign forum. [Emphasis added.] [ 58 ] In that case, the Court explained that the costs and inconveniences associated with bringing an action in the competent foreign forum do not constitute a basis to apply

article 3136 C.C.Q. As soon as the foreign forum allows a trial to be held in accordance with the rules of fundamental justice, the Quebec courts must recognize its jurisdiction: [12] [ translation ]

Article 3136 C.C.Q. sets out an exceptional rule based on the demonstrated impossibility of accessing the foreign forum in a dispute with a sufficient connection to Quebec. The costs and inconvenience of a trial in Italy do not justify its application. Like Canada, Italy has a western legal system.

There has not even been an attempt to argue that a hearing there would not comply with fundamental legal or procedural rules. [ 59 ] In such a situation, mutual assistance and interjurisdictional comity apply. [ 60 ] In this case, it is common ground that a hearing in British Columbia will comply with the rules of fundamental justice.

Moreover, while the respondent will admittedly incur some inconveniences and significant costs by arguing her rights before the court of competent jurisdiction in British Columbia, it is a consequence of the removal, which was ultimately wrongful. [ 61 ] Unlike the trial judge, I find that the respondent had other options than to flee to Quebec to ensure her safety and that of the child. [ 62 ] I would add that the respondent's testimony sometimes perplexes me, particularly when she acknowledges that she spoke to the appellant about her intention to return to Quebec with the child, which he fiercely opposed.

The same is true with regard to her explanation that her counsel in British Columbia had told her before she left that [ translation ] "it could be years before [you] can go be with your family" and [ translation ] "that she could not live with that idea". [ 63 ] Why did she talk to the appellant and her lawyer prior to the separation of her intention to take the child and leave British Columbia? Did she return to Quebec exclusively for safety reasons, or was it something she had been planning to do for some time?

Many questions remain unanswered, particularly regarding the violent behaviour attributed to the appellant. [ 64 ] I would not dream of trivializing the appellant's alleged violent acts. [ 65 ] Nevertheless, we must remain prudent at this stage of proceedings since the appellant has still not testified to give his version of events.

In this respect, the courts of British Columbia may decide these issues, especially since the persons likely to testify about the alleged violence are in that province. [ 66 ] That said, I note that the parties agreed at the hearing of the appeal that, if necessary, evidence could be adduced by way of videoconferencing during proceedings on the custody of the child. If this manner of proceeding is authorized in British Columbia and if it suits the respondent, it could allow her to mitigate the inconveniences arising from the trial being held in British Columbia. [ 67 ] In

summary, I would allow the appeal, reverse the judgment appealed from, and maintain the appellant's declinatory exception.

JEAN-FRANÇOIS ÉMOND, J.A.