2024 QCCA 10, 2024 QCCA 10

Droit de la famille — 2415 2024 QCCA 10 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030834-238 (500-04-080209-233) (500-04-080263-230) DATE: January 10, 2024 BEFORE THE HONOURABLE PATRICK HEALY, J.A. No 500-04-080209-233 M. H. APPELLANT – Plaintiff v. S. B. RESPONDENT – Defendant and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY No 500-04-080263-230 M. H. APPELLANT – Defendant v. S. B.

RESPONDENT – Plaintiff and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded party 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 (art. 16 C.C.P .). [ 1 ] The appellant seeks suspension of a judgment of the Superior Court on 22 December 2023 [1] in two files that were heard together.

In the first [2] the court declined jurisdiction to render judgment on the appellant’s application for exclusive custody of her child. In the second [3] the court authorised the respondent to return with the child to Turkey under the Act respecting the civil aspects of international and interprovincial child abduction (“the Act”) [4] because the appellant had wrongfully removed or retained the child in Canada. The parents and the child left Canada on 26 December 2023 and are now in Turkey. [ 2 ] The appellant seeks the suspension of execution of the judgment of the Superior Court.

At the hearing the appellant specified that the conclusions of the judgment that authorise the return of the child were the primary focus of the motion to suspend. [ 3 ] The parties are unmarried parents of a child under sixteen years of age. The appellant is a Canadian citizen. The respondent is Belgian and Tunisian. The child was born in Canada on [...] 2017 and is a Canadian, Belgian and Tunisian citizen. The three resided together in Turkey from 2020. The appellant and the child travelled to Town A on 30 July 2023 with tickets to return on 20 August 2023.

On 20 August 2023 the appellant announced from Town A to the respondent in Turkey that she would not return with the child and would remain in Quebec. On 21 August she signed a lease in Town A and registered the child to attend school. On 29 August she filed an application in the Superior Court for exclusive custody of the child. [ 4 ] The respondent travelled to Town A on 25 August 2023 and advised police that he considered the non-return of the child wrongful.

On 31 August 2023 he filed a declinatory exception on the ground that in the circumstances Turkish courts have jurisdiction concerning custody of the child. On 1 September he and the appellant signed an interim agreement for shared custody. On 13 September he filed in the Superior Court an application under the Act for an order to authorise the return of the child with him to Turkey.

[ 5 ] The Act implements the terms of the Convention on the Civil Aspects of International Child Abduction (1980) (“the Convention”). [5] The relevant sections of the Act provide: 3.

The removal or the retention of a child is to be considered wrongful, within the meaning of this Act, where it is in breach of rights of custody attributed to one or several persons or bodies under the law of Québec or of the designated State in which the child was habitually resident immediately before the removal or retention and where, at the time of removal or retention, those rights were actually exercised by one or several persons or bodies or would have been so exercised but for the removal or retention.

The rights of custody mentioned in the first paragraph may arise in particular by operation of law, or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of Québec or of the designated State. 4. In addition to the cases contemplated in

section 3, the removal or the retention of a child is considered wrongful if it occurs when proceedings for determining or modifying the rights of custody have been introduced in Québec or in the designated State where the child was habitually resident and the removal or retention might prevent the execution of the decision to be rendered. […] 20.

Where a child who is in Québec has been wrongfully removed or retained and where, at the time of commencement of the proceedings before the Superior Court, a period of less than one year has elapsed from the date of the removal or retention, the Superior Court shall order the return of the child forthwith.

The Superior Court, even where the proceedings have been commenced after the expiration of the period of one year, shall also order the return of the child, unless it is demonstrated that the child is now settled in his or her new environment. [ 6 ] There is no question that the parties are the biological parents of the child and that the child is under sixteen years of age. They agree that until 20 August 2023 their habitual residence was in Turkey and more specifically that the child’s habitual residence was in Turkey.

The parties agree that the appellant removed or retained the child in Quebec on 20 August 2023. The central question concerning the application of the Act in this case was whether the respondent had a right of custody before the removal and detention and actually exercised it. On this question the appellant submits that the law of Turkey, which was the child’s habitual residence at the time of the non-return, is applicable; the respondent relies on

Article 17 of the Turkish Act on Private International and Procedural Law (N o 5718) and its “three-step binding theory” to claim rather that the law of Quebec should apply. [ 7 ] The Superior Court concludes that there was a wrongful removal of the child, declares inadmissible the appellant’s application for exclusive custody (paragraph [511]) while awarding joint custody to both parents (paragraph [523]).

The court orders the return of the child not later than 26 December 2023 and, in view of the appellant’s undertaking, orders her to accompany the child to Town B and to remain there until such time as the Turkish courts render judgment on custody. [ 8 ] The sole question in the present application is whether the provisional execution pending appeal should be suspended. Although the Superior Court specifically ordered provisional execution of the judgment, this conclusion applies by law under

Article 660 C.C.P. The suspension of the judgment is possible under the second paragraph of this

article but is exceptional not only in deference to the discretion of the judge but because the authorisation to return is in principle immediate when the removal occurs within the preceding twelve months. In the present case the appellant claims that the removal was not wrongful because the respondent had no right of custody.

The parties in this matter agree that Turkish law applies to this question and the materials presented before the Superior Court appear to affirm that under Turkish law the unmarried father of a minor child does not. [6] [ 9 ] In this case the grounds for suspension are well founded. [ 10 ] First, and without assessing the chances of success on appeal, there are apparent weaknesses in the judgment, including the contradiction between the conclusions to decline jurisdiction (paragraph [511]) with regard to the appellant’s claim of exclusive custody and to award joint custody (paragraph [523]).

Another apparent weakness concerns the judge’s conclusions concerning the application of the Turkish Act on International Private and Procedural Law (N o 5718) as opposed to the Convention under the law of Quebec. The judge appears to disregard the Act and the Convention that provide that the respondent must have and exercise at the moment of the non- return a right of custody under the law of the child’s habitual residence (Turkey).

Further, there are apparent weaknesses in the Superior Court’s conclusions that order to the appellant to remain in Turkey pending further proceedings before the Turkish courts. [ 11 ] Second, the risk of prejudice to the child and to the appellant is clear: the child is registered to continue to attend school in Town A as she has since September 2023. The appellant’s health is precarious and she requires continuing medical care in Town A. Moreover, it appears that the respondent’s professional obligations in Turkey will come to an end in February 2024.

The risk of prejudice is magnified if further proceedings are undertaken before Turkish courts that might lead to contradictory judgments. [ 12 ] Third, the balance of inconvenience in this matter militates in favour of suspension.

This case presents a variety of complexities, including the fact that the child has already returned to Turkey, but as expressed by Bouchard J.A. in another case it is necessary and prudent to choose the lesser of two evils. [7] These considerations support suspension of the execution of the Superior Court’s judgment and management of the file for prompt hearing before a panel of the Court, as indicated below in the conclusions of this judgment. FOR THESE REASONS, THE UNDERSIGNED: [ 13 ] AUTHORISES notice and presentation of the amended motion to suspend the provisional execution as of 5 January 2024;

[ 14 ] GRANTS the amended motion to suspend the provisional execution of the Superior Court’s judgment; [ 15 ] ORDERS the return of the child to Town A not later than 20 January 2024; [ 16 ] MAINTAINS in effect the interim agreement between the parties concerning custody of the child that was homologated by the Superior Court on 1 September 2023; [ 17 ] DEFERS to the Registry management of the case on appeal at the earliest date; [ 18 ] TAKES NOTICE of the respondent’s intention to file a motion to dismiss the appeal not later than 23 January 2024; [ 19 ] WITHOUT COSTS OF JUSTICE. PATRICK HEALY, J.A.

Mtre Caroline Harnois Mtre Awatif Lakhdar LAVERY, DE BILLY For the Appellant Mtre Daniel Romano Mtre Muhammed Emre Barak GOLDWATER DUBÉ For the Respondent Mtre Gabriel Lavigne Mtre Renaude Morin BERNARD, ROY (JUSTICE-QUÉBEC) For the Impleaded party Date of hearing: January 5, 2024 Judgment reserved: January 9, 2024