2011 QCCA 38, 2011 QCCA 38

Unofficial English Translation Adoption — 111 2011 QCCA 38 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-08-000325-094 (550-43-000046-072) DATE: January 13, 2011 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. GUY GAGNON, J.A. A and B APPELLANTS / Petitioners v.

ATTORNEY GENERAL OF QUEBEC RESPONDENT / Respondent and DIRECTOR OF YOUTH PROTECTION IMPLEADED PARTY / Impleaded party JUDGMENT [ 1 ] THE COURT: On the appeal from a judgment rendered on June 2, 2009, by the Court of Quebec, Youth Division, District of Hull (the Honourable Judge Michel Séguin), which dismissed the appellant's motion to institute proceedings in the following terms: [ translation ] DECLARES that the petitioners were domiciled in Quebec during the adoption process and proceedings; DISMISSES the motion to institute proceedings; DISMISSES the alternative motion for recognition of adoption judgments rendered in Poland; The whole without costs; [ 2 ] For the reasons of Bich J.A., with which Hilton and Gagnon JJ.A. agree: [ 3 ] ALLOWS the appeal ; [ 4 ] SETS ASIDE the judgment of the Court of Quebec solely to declare that it did not have jurisdiction to decide the appellant's motion to institute proceedings; [ 5 ] DISMISSES the motion to institute proceedings for declaratory judgment; [ 6 ] THE WHOLE , without costs; ALLAN R.

HILTON, J.A. MARIE-FRANCE BICH, J.A.

GUY GAGNON, J.A. Mtre Julius H. Grey Grey, Casgrain For the appellants Mtre Nathalie Fiset Bernard, Roy (Justice Quebec) For the respondent Mtre Danielle Pharand Pharand, Daigle and Associates For the impleaded party (absent on August 20, 2010) Date of hearing: May 21 and August 20, 2010. REASONS OF BICH, J.A. [ 7 ] The appellants, in circumstances upon which we will elaborate, adopted two children in Poland.

They argue that the adoptions in question were foreign domestic (or internal) adoptions, which are not subject to the scheme established in the Civil Code of Québec concerning international adoption, and have effect in the Quebec legal order without any need for judicial recognition. Because the competent authorities refused to confer Canadian citizenship on the children or let them enter the country to obtain permanent resident status, the appellants brought proceedings before the Court of Quebec pursuant to

article 453 C.C.P. , asking the Court to declare Quebec law inapplicable or to give them the benefit of the third paragraph of

article 574 C.C.Q. [ 8 ] Should the appellants have applied to the Superior Court instead? Before answering this question, we will summarize the facts and the trial judgment. * * [ 9 ] The appellants, originally from Poland, married there in 1987. They immigrated to Canada in 1991, settling in Quebec. For a long time they were domiciled in what is today City A, and were employed by [Company A] (which is apparently still the case for appellant A, who works for [Company A]).

They have dual Canadian and Polish citizenship. [ 10 ] In 2002, while domiciled in Quebec, the appellants adopted a first child in Poland, without taking the route stipulated in articles 563 to 565 C.C.Q.

There were subsequently some difficulties when the child came to Canada, and he obtained his Canadian citizenship only in August of 2005. [ 11 ] In the spring of 2004, while still domiciled in Quebec, the appellants initiated adoption proceedings in Poland for the adoption of two more Polish children. [1] In the summer of 2005, they were informed that their process was partially complete and they could soon adopt a young boy. [2] [ 12 ] In September of 2005, the appellants left Canada and settled in Poland, where, they maintain, they intended to settle permanently.

They had harboured this plan since 2004 at least, but had waited until their oldest son received his Canadian citizenship. Initially, they stayed with appellant B's mother and then, as of September 15, 2005, they rented an apartment in the same building. [3] [ 13 ] On October 21, 2005, a Polish court delivered a judgment in favour of the appellants for the adoption of the child X, born on ..., 2005, who became Y. [4] According to the judgment, the child's biological mother consented to the adoption on June 23, 2005. [ 14 ] Soon, their adoption hopes were fully realized when they adopted a little girl.

On March 15, 2006, another Polish court delivered a judgment in their favour for the adoption of the child Z, born on ... 2006, whose biological mother had consented to the adoption on an unspecified date. [5] The child was renamed C. [6] [ 15 ] Around April of 2006, not long after this second judgment, the appellants decided to return to Canada and settle there once again because, as they claim, their future in Poland was not as bright as they had hoped. [7] In accordance with the Immigration and Refugee Protection Act , [8] as in force at the time, if we understand correctly, they filed an application to sponsor Y and C with Canadian immigration authorities, specifically, with the Canadian embassy. [ 16 ] They encountered a problem, however, when immigration authorities denied the children entrance into Canada even though they had been made aware of the adoption judgments from October of 2005 and March of 2006.

It should be noted that, if there exists a document detailing this refusal and the grounds for it, it was not filed at trial (nor, obviously, is it part of the appeal record). It would appear that the sponsorship application (which was also not filed) was not accepted and the temporary residence permits and visas for Y and C were not issued on the following grounds: according to the Canadian embassy in Warsaw, the entrance of children to the country is subject to obtaining a letter of no objection to the adoption issued by the Quebec Secrétariat à l'adoption internationale.

This body, however, deemed that it did not have to give an opinion as the adoptions in question were not international adoptions governed by articles 563 to 565 C.C.Q. but domestic Polish adoptions. Here are excerpts from the letter the Secrétariat à l'adoption internationale sent appellant A on September 6, 2006:

[ translation ] Sir, The Secrétariat à l'adoption internationale is involved in all the adoptions of children who are not domiciled in Quebec by persons who are domiciled in Quebec. ... According to the information you have given us in your letter , which we received on August 21, 2006, you adopted your children while you were domiciled in Poland and did not open a file with the Secrétariat à l'adoption internationale.

Therefore, we cannot follow through with your request for us to issue a letter of no objection. [9] [Emphasis added.] [ 17 ] We should point out that in 2004, this same Secrétariat gave the appellants the same answer when they attempted to obtain its agreement to the adoption of their eldest son, D: [ translation ] Dear Sir or Madam, You have sent various adoption documents concerning the child D, born on ... 2002, and adopted in Poland on May 7, 2002. We have also received your psychosocial assessment, which was performed by a Quebec professional and dated November 17, 2002.

The adoption judgment rendered in Poland mentions a residence in Poland and does not make any mention of a Quebec address or of your Canadian citizenship.

Consequently, the Secrétariat à l'adoption internationale deems that its intervention is not required as yours is a domestic adoption . ... [10] [ 18 ] The appellants therefore found themselves in a bit of a bind when the immigration authorities were not satisfied with the letter from September of 2006, even though the letter in question did indicate that the Secrétariat did not get involved in cases where both the adopted and adopting persons were domiciled outside of Quebec at the time of the adoption.

Therefore, because the two youngest had been denied entry to Canada, Appellant B remained in Poland with her three children. She only returned to Canada in December of 2008, when the Canadian government lifted the visa requirements for Polish citizens, who may now visit Canada for up to six months.

She returned to Poland (with the children) in March of 2009. [11] Appellant A's situation is less clear, but he seems to reside part-time at least in City A (at their former address) and continues to work for the Department of Foreign Affairs. * * [ 19 ] To resolve this problem, in November of 2007, the appellants brought a "Motion to institute a declaratory action" based on

article 453 C.C.P. before the Court of Quebec. The respondents were the Attorney General of Quebec and the Director of Youth Protection. [ 20 ] Because of

article 36.1 C.C.P. , which attributes jurisdiction "in matters respecting adoption" to the Court of Quebec, the appellants applied to that court rather than to the Superior Court, as they explain in paragraph 47 of their motion to institute proceedings: [translation] 47. Usually, the Superior Court of Quebec would have jurisdiction, but the Code of Civil Procedure of Québec has transferred all matters concerning adoption to the Court of Quebec; [ 21 ] The motion also alleges that: [ translation ] 37.

Yet, because the two younger children's application for temporary resident permits and permanent resident visas was rejected, they cannot enter Canada; 38. For these two specific cases, there is no cause to require that the adoptions be subject to the recognition process as requested by Immigration Québec and Immigration Canada; 39. Indeed, contrary to the allegations of the federal and provincial immigration authorities, the adoptions in question are not "international" adoptions; 40. The two younger children need not, therefore, immigrate to Canada; sponsorship would be sufficient; 41.

The Secrétariat de l'adoption internationale (hereinafter the "Secrétariat") is involved only with the adoption of children domiciled outside of Quebec by persons domiciled in Quebec; 42. Consequently, the Secrétariat did not open a file in the petitioners' names because they were domiciled in Poland, and the Secrétariat also refused, because of that fact, to issue a letter of no objection to the adoption, as appears from exhibit P-11; 43. To ask that the petitioners obtain a letter of no objection from the Secrétariat is equivalent to asking them to undertake an

international adoption process as if they were residents of Quebec wanting to adopt a child from another country; 44. The request of the Canadian embassy in Warsaw asking the Secrétariat to issue a letter of no objection is clearly devoid of merit; 45. The Youth Protection Act need not be considered as this is a question of private international law, of recognition of foreign judgments, and of adoption (

article 574 of the Civil Code of Québec ); 46. The other formalities required by the Civil Code of Québec in matters of recognition of adoption judgments rendered abroad are not relevant to this case; ... 48. The petitioners have an interest in having their relationship to their two youngest children recognized because they wish to establish their domicile in Quebec with all three of their children; 49. In this sense, these issues will have consequences not only on the family and the estate, but also on the areas of liability and immigration; 50.

The petitioners are entitled to obtain a judgment stating that they are the parents of Y and C; [ 22 ] The conclusions of the motion read as follows: [ translation ] FOR THESE REASONS, MAY IT PLEASE THE COURT TO: DECLARE that the rules in the Civil Code of Québec concerning international adoption do not apply to the present case, with the exception of

article 574 ; RECOGNIZE the Polish adoption judgments pursuant to private international law; DECLARE Y and C to be the children of the petitioners; MAKE any additional order that this Court may deem necessary and proper; THE WHOLE without costs, unless it is opposed. [ 23 ] These conclusions are not perfectly clear.

The first, in particular, appears intrinsically contradictory, its second part being incompatible with its first and not quite corresponding to the body of the motion, which seems instead to allege the complete inapplicability of those provisions of the Civil Code of Québec specifically governing international adoption. [ 24 ] At the hearing before the Court of Quebec, however, the exchanges between the judge and counsel made it clear that the appellants submit – and it is their main argument – that the provisions of the Civil Code of Québec governing international adoption, more specifically articles 563 to 565 and 574 C.C.Q. , do not apply to them, as their adoptions were domestic in Poland since both adopted and adopting persons were domiciled there at the relevant time.

Thus, the judgments ordering the adoptions of Y and C are purely domestic adoption judgments with full effect, and must be binding on the Quebec and Canadian legal systems without further formality. [ 25 ] Admittedly, the motion asked the Court to [ translation ] "recognize the Polish adoption judgments pursuant to private international law", but this recognition, if we read between the lines, would only be the collateral consequence of a declaration that Quebec international adoption law does not apply to this case and that the Polish judgments, which pertain to a person's status, have full effect. [ 26 ] Moreover, were we to find that they were not domiciled in Poland but in Quebec at the time of the adoption, which would set in motion the application of the Quebec international adoption scheme, the appellants submit that the third paragraph of

article 574 C.C.Q. applies. * * [ 27 ] The case was heard by the Court of Quebec on February 4, 2009, and the judgment, which was rendered on June 2 of that same year, dismissed the motion. * * [ 28 ] At trial, the issue of the Court of Quebec’s jurisdiction was not raised, the parties apparently [ translation ] "agreeing" on its jurisdiction, which was consequently undisputed. If jurisdiction was discussed, it was only in relation to whether the Court needed to recognize a judgment that may not in any event require recognition.

Instead, the debate centred on determining the appellants' domicile at the time of the hearing. [ 29 ] The trial judgment nonetheless noted the following: [ translation ] [12] If it is a Polish domestic adoption, it has been established that the Court does not have jurisdiction to recognize this judgment, 1 which would have full effect as regards the status of the children 2 because the petitioners would not then be subject to Quebec legislation.

[13] If the adoption is international, the Court must examine the scope of

article 574 C.C.Q. and the other Quebec legislative provisions that apply to this situation. [14] The domicile of the petitioners is determinative to the outcome of the present issue. 1 AZ-50297421 judgment from October 8, 2004, by the Honourable Judge Michèle Lefebre. 2 Citizenship Act (R.S.C. 1985, c. C-29) at s. 5.1 . [ 30 ] In analyzing the evidence, the trial judge found that the appellants were not domiciled in Poland but in Quebec when they adopted the two children in question in this case.

They were therefore subject to the scheme set out in articles 563 to 565 C.C.Q. , provisions with which they did not comply. [ 31 ] Nor did they, according to the trial judge, comply with the third paragraph of

article 574 C.C.Q. , which can exceptionally allow the recognition of a foreign adoption judgment regardless of the fact that the adopting persons failed to comply with articles 563 and 564 C.C.Q. Indeed, the judge observed that the appellants did not submit a psychosocial assessment as required pursuant to

article 574. Specifically, they filed only the psychosocial expert report adduced at the time of the adoption of their eldest son in 2002, in addition to an assessment that was prepared by a person who does not meet the requirements of Quebec law and that, additionally, only concerns the child Y. These expert reports are unacceptable and this constitutes a bar to the appellants’ motion. Moreover, the judge felt that they did not show any serious grounds that would justify under

article 574 C.C.Q. overriding the fact that they violated articles 563 and 564 C.C.Q. * * [ 32 ] The appellants appeal that judgment. [ 33 ] Shortly before the scheduled date of the appeal hearing, the Court, having reviewed the record, requested that the parties address at the hearing the issue of the Court of Quebec’s jurisdiction on a matter that seems at first glance to present the characteristics of a purely declaratory action and which might fall under the jurisdiction of the Superior Court.

This request resulted in the postponement of the scheduled hearing and in the filing of additional factums. * * [ 34 ] According to the appellants, the judge should have found that their domicile was in Poland at the time of the adoptions.

On the one hand, the judge erred in law by incorrectly applying articles 75 to 78 [12] C.C.Q. ; on the other, he incorrectly assessed evidence that clearly indicated that the appellants' domicile at the time of the adoptions was not in Quebec but definitely in Poland, thereby committing a palpable and overriding error. [ 35 ] Moreover, the appellants' factum and the additional explanations given at the hearing indicate that their approach is two- pronged. [ 36 ] Firstly, taking the arguments submitted at trial one step further and relying very much on articles 3092 and 3166 C.C.Q. , among others, the appellants argue that it would be absurd to systematically require foreign domestic adoption orders made in compliance with foreign laws to comply with the provisions of the Quebec international adoption scheme and force adopting persons, once settled in Quebec, to have that foreign judgment recognized pursuant to

article 565 C.C.Q. Here, all that is required is for the Quebec court to take note of what appears to be a state of affairs. The only competent tribunal to do so is the Court of Quebec, pursuant to

article 36.1 C.C.P. [ 37 ] Second, when circumstances require that the foreign judgment be subject to judicial recognition, as in the present case, this step should proceed pursuant to

article 3155 C.C.Q. Such recognition falls within the purview of the Court of Quebec, "notwithstanding a few dicta to the contrary by that Court" [13] – a clear allusion to paragraph 12 of the trial judgment. [ 38 ] For its part, according to its additional factum, the respondent believes that: [ translation ] 11. ... the Superior Court is the only jurisdiction capable of recognizing a foreign national adoption judgment where required. Articles 3141, 3155, 3164, and 3166 are then applied. [ 39 ] In this case, however, the respondent maintains that the appellants, as the trial judge noted, were not domiciled in Poland when Y and C were adopted. The situation is therefore governed by

article 574 C.C.Q. , the application of which falls exclusively to the Court of Quebec, pursuant to

article 36.1 C.C.P. * * [ 40 ] In light of the particular nature of both the situation and the originating proceeding, the appellants should have submitted their request to the Superior Court. This is why. * * [ 41 ]

Article 36.1 C.C.P. , which came into force on August 31, 1988, assigns the following jurisdiction to the Court of Quebec: [14]

36.1 . La Cour du Québec connaît, à l'exclusion de la Cour supérieure, des matières relatives à l'adoption . Dans les autres matières relatives à la jeunesse, la compétence de la cour et la procédure qui doit être suivie devant elle sont déterminées par des lois particulières. [Emphasis added.] 36.1. The Court of Québec has jurisdiction, to the exclusion of the Superior Court, in matters respecting adoption . In other matters respecting youth, the jurisdiction of the Court and the procedure to be followed before the Court are determined by special Acts. [Emphasis added. ] [ 42 ] We point out that no one has disputed the constitutional validity of

article 36.1 C.C.P. in the course of these proceedings. [15] The only issue is whether the present case is a matter "respecting adoption" within the meaning of this provision.

More specifically, the issue is whether, pursuant to this provision, the Court of Quebec may validly hear a matter that is purely declaratory, because the underlying facts of the problem to be resolved are relating to or take place against the backdrop of an adoption. * * [ 43 ] We may state at the outset that, since this case involves the application of the provisions of the Civil Code of Québec to a matter respecting a domestic adoption – that is, a matter with no extraneous factors bringing conflict of law rules into play – the Court of Quebec had complete jurisdiction where a judicial intervention is required pursuant to articles 543 to 576 C.C.Q. , as these are matters respecting adoption within the meaning of

article 36.1 C.C.P. Also, through the combined effects of articles 3141, 3147 and 3092 C.C.Q. , the Court of Quebec has jurisdiction in the same way over the adoption of a child domiciled in Quebec by adopting persons domiciled outside of Quebec (taking into consideration the Act to implement the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption [16] ). [ 44 ] Because they are also "matters respecting adoption" within the meaning of

article 36.1 C.C.P. , in cases governed by articles 563 to 565 C.C.Q. , the Court of Quebec also has jurisdiction to order the adoption of a child domiciled abroad by adopting persons domiciled in Quebec or to recognize the foreign judgment ordering the adoption of such a child by persons domiciled in Quebec. In this last situation, since February 1, 2006, recognition has not been required if the foreign authority certifies that the adoption judgment complies with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption . [17] [ 45 ] Finally, the Court of Quebec has jurisdiction under

article 574 C.C.Q. where adopting persons domiciled in Quebec have adopted a child domiciled outside of Quebec without complying with articles 563 and 564 C.C.Q. but nevertheless seek to have the foreign adoption judgment in their favour recognized in Quebec: again, it is a "matter respecting adoption". [ 46 ] To better define the jurisdiction of the Court of Quebec in matters involving international adoption, the very issue of interest to us in this appeal, we will first consider articles 563 to 565 C.C.Q. , which are found under the heading "§5 — Special conditions respecting adoption of a child domiciled outside Québec", in both their current and prior versions: Current version of articles 563 to 565 C.C.Q. 563.

Toute personne domiciliée au Québec qui veut adopter un enfant domicilié hors du Québec doit préalablement faire l'objet d'une évaluation psychosociale effectuée dans les conditions prévues par la

Loi sur la protection de la jeunesse (chapitre P-34.1 ). 563. Every person domiciled in Québec wishing to adopt a child domiciled outside Québec shall previously undergo a psychosocial assessment made in accordance with the conditions provided in the Youth Protection Act (chapter P-34.1 ). (in effect since January 1, 1994). 564. Les démarches en vue de l'adoption sont effectuées par un organisme agréé par le ministre de la Santé et des Services sociaux en vertu de la

Loi sur la protection de la jeunesse (chapitre P-34.1 ), à moins qu'un arrêté de ce ministre publié à la Gazette officielle du Québec ne prévoie autrement. 564. The adoption arrangements are made by a body certified by the Minister of Health and Social Services pursuant to the Youth Protection Act (chapter P-34.1 ), unless an order of the Minister published in the Gazette officielle du Québec provides otherwise. (in effect since February 1,2006). 565. L'adoption d'un enfant domicilié hors du Québec doit être prononcée soit à l'étranger, soit judiciairement au Québec.

Le jugement prononcé au Québec est précédé d'une ordonnance de placement. La décision prononcée à l'étranger doit faire l'objet d'une reconnaissance judiciaire au Québec, sauf si l'adoption est certifiée conforme à la Convention sur la protection des enfants et la coopération en matière d'adoption internationale par l'autorité compétente de l'État où elle a eu lieu. 565. The adoption of a child domiciled outside Québec must be granted abroad or granted by judicial decision in Québec. A judgment granted in Québec is preceded by an order of placement.

A decision granted abroad must be recognized by the court in Québec, unless the adoption has been certified by the competent authority of the State where it took place as having been made in accordance with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. (in effect since February 1,2006). Prior version of articles 563 to 565 C.C.Q.

563. Toute personne domiciliée au Québec qui veut adopter un enfant domicilié hors du Québec doit préalablement faire l'objet d'une évaluation psychosociale effectuée dans les conditions prévues par la

Loi sur la protection de la jeunesse (chapitre P-34.1 ). 563. Every person domiciled in Québec wishing to adopt a child domiciled outside Québec shall previously undergo a psychosocial assessment made in accordance with the conditions provided in the Youth Protection Act (chapter P-34.1 ). (in effect since January 1, 1994). 564. Les démarches en vue de l'adoption sont effectuées soit par l'adoptant, dans les conditions prévues par la

Loi sur la protection de la jeunesse , soit, à la demande de l'adoptant, par le ministre de la Santé et des Services sociaux ou par un organisme agréé en vertu de la même loi. 564. The steps with a view to adoption are taken by the adopter, in accordance with the conditions provided in the Youth Protection Act , or, at the request of the adopter, by the Minister of Health and Social Services or an organization certified under the said Act. (in effect from January 1, 1994, to January 31, 2006). 565.

L'adoption d'un enfant domicilié hors du Québec doit être prononcée judiciairement soit à l'étranger, soit au Québec. Le jugement prononcé au Québec est précédé d'une ordonnance de placement. Le jugement prononcé à l'étranger doit faire l'objet d'une reconnaissance judiciaire au Québec. 565. The adoption of a child domiciled outside Quebec may be granted only by judicial decision either outside Quebec or in Quebec. A judgment granted in Quebec is preceded by an order of placement.

For a judgment granted outside Quebec, recognition by the court in Quebec is necessary. (in effect from January 1, 1994, to January 31, 2006). [ 47 ] These provisions are complemented by

article 574 C.C.Q. , among others, which is also worth reproducing here in both its current and prior versions: Current version of

article 574 C.C.Q. , in effect since February 1, 2006. 574. Le tribunal appelé à reconnaître une décision d'adoption rendue hors du Québec s'assure que les règles concernant le consentement à l'adoption et l'admissibilité à l'adoption de l'enfant ont été respectées et que les consentements ont été donnés en vue d'une adoption qui a pour effet de rompre le lien préexistant de filiation entre l'enfant et sa famille d'origine. Le tribunal vérifie en outre, lorsque la décision d'adoption a été rendue hors du Québec en vertu d'un accord conclu en application de la

Loi sur la protection de la jeunesse (chapitre P-34.1 ), si la procédure suivie est conforme à l'accord. La reconnaissance peut, pour des motifs sérieux et si l'intérêt de l'enfant le commande, être accordée bien que l'adoptant ne se soit pas conformé aux dispositions des articles 563 et 564. Cependant, la requête doit être accompagnée d'une évaluation psychosociale. 574.

The court, where called upon to recognize a decision granting an adoption made outside Québec, ascertains that the rules respecting consent to adoption and eligibility for adoption have been observed and that the consents have been given for the purposes of an adoption resulting in the dissolution of the pre-existing bond of filiation between the child and the child's family of origin.

Where the decision granting the adoption has been made outside Québec under an agreement entered into by virtue of the Youth Protection Act (chapter P-34.1 ), the court also verifies that the procedure followed is as provided in the agreement. Even if the adopter has not complied with the provisions of articles 563 and 564, recognition may be granted for serious reasons and if the interest of the child demands it. However, the application shall be accompanied with a psychosocial assessment. Prior version of

article 574 C.C.Q., in effect from January 1, 1994 to January 31, 2006

574. Le tribunal appelé à reconnaître un jugement d'adoption rendu hors du Québec s'assure que les règles concernant le consentement à l'adoption et à l'admissibilité à l'adoption de l'enfant ont été respectées. Le tribunal vérifie en outre, lorsque le jugement d'adoption a été rendu hors du Québec en vertu d'un accord conclu en application de la

Loi sur la protection de la jeunesse , si la procédure suivie est conforme à l'accord. La reconnaissance peut, pour des motifs sérieux et si l'intérêt de l'enfant le commande, être accordée bien que l'adoptant ne se soit pas conformé aux dispositions des articles 563 et 564. Cependant, la requête doit être accompagnée d'une évaluation psychosociale. 574. The court, where called upon to recognize an adoption judgment rendered outside Quebec, ascertains that the rules respecting consent to adoption and eligibility for adoption have been observed.

Where the adoption judgment has been rendered outside Quebec under an agreement entered into by virtue of the Youth Protection Act , the court also verifies that the procedure followed is as provided in the agreement. Even if the adopter has not complied with the provisions of articles 563 and 564, recognition may be granted for serious reasons and if the interest of the child demands it.

However, the application shall be accompanied with a psychosocial assessment. [ 48 ] Even though the Court of Quebec has jurisdiction in cases where the adopted child is domiciled abroad and the adopting person is domiciled in Quebec (which in any event is not disputed here), it has on a few occasions indicated that it is without jurisdiction regarding "foreign domestic adoptions", that is, adoption orders made outside of Quebec in cases where both the adopted child and the adopting person are, at the time of the adoption, domiciled outside of Quebec and entirely governed by foreign law.

In other words, it deems that its jurisdiction extends only to Quebec domestic adoptions or to cases governed by articles 563 to 565 C.C.Q. Indeed, in the opinion of the Court of Quebec, these provisions, complemented by

article 574 C.C.Q. , do not apply to a foreign domestic adoption. [ 49 ] This is what the trial judge stated in paragraph 12, which is reproduced here for greater convenience: [ translation ] [12] If it is a Polish domestic adoption, clearly this Court does not have jurisdiction to recognize this judgment that, in any event, has full force and effect regarding the status of the children because the petitioners were not then subject to Quebec legislation. [Citations omitted.] [ 50 ] The Court of Quebec arrived at this conclusion in C.T. and Director of Youth Protection , [18] in which Lefebvre J.C.Q. wrote: [ translation ] [5] It appears from the evidence as a whole that the petitioners were both from Quebec and Canadian citizens.

When they began the adoption process to adopt the child, Ch..., born in Romania, however, they were permanent residents of France and had been domiciled there for a number of years.

It was in this capacity and following the rules and provisions of French law that the petitioners pursued the adoption of Ch..., which was ordered in France on November, 27, 2002. [6] Upon returning to Quebec in February of 2003, the petitioners were required by the Canadian immigration department to undertake proceedings to have the adoption judgment rendered outside of Quebec recognized so that their son could receive permanent resident status. [7] The provisions concerning adoption are found in the Civil Code of Québec .

Articles 563 and following contain the specific conditions for adopting a child domiciled outside of Quebec: [articles 563 to 565 C.C.Q. reproduced] [8] It appears clearly upon reading

article 563 that in order for these provisions to apply, the petitioners had to have been domiciled in Quebec when they undertook the adoption process for a child, and the child domiciled outside of Quebec. [9] Once the adoption process has been completed abroad by the adopting persons domiciled in Quebec, the recognition of the judgment rendered outside of Quebec will give rise to the same rights for the adopted child as if he or she had been adopted in Quebec: 581.

The recognition of a decision granting an adoption produces the same effects as an adoption judgment rendered in Québec from the time the order granting the adoption was made outside Québec. [10] In the case before us, as noted before, the child's adoption was completed when the adopting persons and the child were domiciled in France, and this adoption produced the effects set out under French law. [11] The provisions of the Civil Code of Québec therefore do not apply, and the Court has no jurisdiction to rule on this request. [ 51 ] Basing itself on that judgment, the Court of Quebec, per Jones J.C.Q., arrived at the same conclusion in C.B. and Director of Youth Protection of the Montreal Youth Centre : [19] [ translation ]

[21] Additionally, the adoption order made in Côte d'Ivoire on October 5, 1999, is a "domestic adoption" because, according to the judgment, the adopting persons were domiciled there. The judgment refers to the Ta. spouses and adds that Mr. Ta. is the town clerk in Sirasso, Côte d'Ivoire. There is absolutely no mention of the fact that the petitioner, Mrs. Ta., is domiciled abroad. [22] Articles 563 to 565 C.C.Q. apply only to cases where the persons looking to adopt are domiciled in Quebec and hope to adopt a child domiciled outside of Quebec.

If the adopting persons were domiciled in Côte d'Ivoire, then articles 563 to 565 C.C.Q. do not apply to their situation and the Court lacks the jurisdiction to recognize the judgment rendered on October 5, 1999, in Côte d'Ivoire. [23] Following the evidence adduced at trial, Mr. Ta. was domiciled in Côte d'Ivoire at the time of the adoption and remains there today. As we have just stated, the Court cannot apply articles 563 to 565 C.C.Q. to a person who is not domiciled in Quebec.

These provisions apply to persons domiciled in Quebec, not to foreigners who have adopted a child in their country of origin. [24] Our colleague, Judge Michèle Lefebvre, was asked to rule in the case of a Quebec couple who adopted a child in France while they lived there for a few years.

Lefebvre J.C.Q. found that the court did not have jurisdiction because the petitioners were not domiciled in Quebec when the adoption order was made [footnote omitted]: ... [25] Similarly, François Godbout J.C.Q., in file number 525-43-004014-045 [footnote omitted], found that for a foreign adoption judgment to be recognized, the petitioners must be domiciled in Quebec. He recognized the adoption judgment rendered in Romania after having determined that the petitioners were domiciled in Quebec.

He said the following: [ translation ] Any person who wishes to have an adoption judgment rendered abroad judicially recognized in Quebec must be domiciled in Quebec. (Articles 563 and 565 C.C.Q. ) ... Moreover, it is not within the purview of Quebec judges to review Romanian law and the judgment R-7 on the issue.

They need only confirm that the petitioners are domiciled in Quebec. [26] In the case at hand, it must follow that the Court cannot recognize a judgment rendered in Côte d'Ivoire because the adopting persons, or at least one of them, was not domiciled in Quebec in October of 1999. [ 52 ] In the matter of C.C. and Director of Youth Protection of the Batshaw Youth Centres , [20] quoted in paragraph 25 of the above excerpt, the petitioners had submitted a request pursuant to

article 574 C.C.Q. , complied with the requirements of the third paragraph of that provision and, despite the terms of the foreign judgment, acknowledged that they were domiciled in Quebec at the time of the adoption (which is not the case of the appellants in the present case): the Court of Quebec therefore ruled on the recognition of the foreign judgment. [ 53 ] In Adoption — 08303 , [21] a case that is in some respects reminiscent of the appellants' case (with one major exception), Asselin J.C.Q. explained: [ translation ] [85] The petitioners maintain that when they began the process of adopting a child residing in China, they themselves resided there. [86] They then abandoned this route during the hearing when they realized that the Court did not have jurisdiction to recognize a judgment rendered in China concerning both a child and adopting persons whose place of residence was in China as it was obviously then a national adoption . [87] Through their attorney, they acknowledged instead that they usually resided in Quebec during the adoption process in China. [Emphasis added.] [ 54 ] There are three more judgments worth pointing out. [ 55 ] In 2006, the Court of Quebec, in a detailed judgment, analyzed all the provisions of the Civil Code of Québec relevant to international adoption.

At issue in that case was the effect of an Algerian Kafala judgment pronounced prior to the petitioners arriving in Canada, when they and the child entrusted to them were still domiciled in Algeria. The petitioners subsequently immigrated to Canada and, settling in Quebec, undertook adoption proceedings.

Considering the effects of such a judgment, regarded as a judgment on the status of an individual, Bernier J.C.Q. observed that: [ translation ] [41] As it is a judgment on status, it is customary in private international law to give effect to it without a requirement for judicial recognition. [footnote omitted] [22] [ 56 ] As early as 1993, in a case involving a ruling on a request to recognize a New Brunswick judgment in favour of an adopting person and an adopted child both domiciled in that province at the time of the adoption, the Court of Quebec explained that: [ translation ] The other slightly surprising aspect of these proceedings is that a Quebec court is being asked to recognize a judgment rendered

in another province, where both the adopting and the adopted persons are domiciled, New Brunswick in this case. Normally, parents in New Brunswick who adopt a child from New Brunswick have no need to have the adoption judgment recognized by the Quebec courts. What is particular about the present case is that, at birth, the adopted child was domiciled in Quebec, and the birth was consequently registered in the Quebec civil registers. Evidently, the articles of our civil code dealing with the recognition of a foreign judgment were never enacted with the issue before us today in mind.

The law, in fact, was obviously drafted so that parents who are domiciled in Quebec may have a foreign judgment in their favour recognized here. ... [23] [Emphasis in original] [ 57 ] Considering the appropriateness of applying the requirement of

article 622.1, [24] the precursor to present-day

article 574 C.C.Q., to this recognition in relation to the expert psychosocial assessment, the judge added that: [ translation ] ... In the case at hand, neither the adopting person nor the child is domiciled in Quebec and the sole purpose of the recognition of a foreign judgment is to modify the civil status registers.

The Court fails to see by what principles a person domiciled in New Brunswick who has already been declared to be the adoptive mother of a child should be subjected to a psychosocial assessment to meet the legal requirements of a province in which she does not reside. ... [25] [ 58 ] For its part, the Superior Court expressed the following opinion in Droit de la famille — 3677 , [26] a case where the foreign judgment at issue ordered that the biological father, domiciled in Quebec, be deprived of his parental authority and the adoption of the child, then domiciled in the United States, by an adopting person also domiciled in that country.

The biological father sought to obtain access rights to the child, which were denied. In passing, considering

article 565 C.C.Q. (as in force at the time), Chabot J. noted that: [ translation ] The reference at the end of the quote of

article 565 C.C.Q. regarding adoption applies only to cases where the person wishing to adopt is domiciled in Quebec and seeks to adopt a child domiciled outside of Quebec; it does not apply to this case because this person, the mother's new husband, is domiciled in the United States. [27] [ 59 ] Three propositions may be drawn from our review of the case law. [ 60 ] First: articles 563 to 565 C.C.Q. and

article 574 C.C.Q. apply only to situations where, at the time of the adoption, the adopting person (or future adopting person) is domiciled in Quebec and the adopted child (or future adopted child) is domiciled outside of Quebec. Thus, in the case of a foreign domestic adoption, where both the adopting person and the adopted child are domiciled outside of Quebec, articles 563 to 565 and 574 C.C.Q. do not apply. [ 61 ] Secondly: it appears from the largely prevailing Court of Quebec case law that it is not necessary to have the foreign adoption judgment ordering a domestic adoption judicially recognized.

That is what emerges, implicitly or explicitly, from the aforementioned judgments: the Court of Quebec [ translation ] "does not have jurisdiction" to recognize foreign judgments ordering domestic adoptions because those judgments do not require judicial recognition. [ 62 ] It is therefore a question of accepting that the adoption judgment, a judgment on the status of an individual, has full de facto effect, that is: [ translation ] 155.

De facto effect and probative value The de facto effect and probative value of foreign judgments do not rely on the conditions for the international effectiveness of judgments or on their being vetted by the courts.

De facto effect generally signifies [ translation ] "all the legal consequences that the law of the forum recognizes in a foreign judgment simply because it exists". [footnote omitted] ... [28] [ 63 ] Several jurisdictions (France and Belgium, for example) acknowledge that foreign judgments in matters concerning status have effect as of right, without any need for formal recognition (exemplification or exequatur ). [29] As Professors Goldstein and Groffier put it: [ translation ] These solutions are explained by the fact that they relate only to the de facto effect and the effect on title of the foreign judgment.

It is a matter of [ translation ] "integrating the legal relationship woven by [the foreign judgment] into the fabric of social ties constituting the legal order [of the forum].

This integration does not include any injunction on any body whatsoever and therefore avoids the pitfall of discontinuity of legal orders". [footnote omitted] [30] [ 64 ] Briefly, to paraphrase, the law of the forum (Quebec in this case) recognizes all the legal consequences under foreign law of the foreign judgment ordering a domestic adoption — a judgment affecting a person's status — [ translation ] "simply because it exists" and integrates the relationship established by foreign law into the Quebec legal order. [ 65 ] Thirdly and finally: if the validity or the legal consequences of such a foreign judgment were nonetheless challenged in Quebec and a formal recognition was necessary, it would not be within the purview of the Court of Quebec to give it. [ 66 ] These three propositions require a few comments. [ 67 ] In our view, the Court of Quebec was right to hold that articles 563 to 565 and, in turn,

article 574 C.C.Q. do not apply to the

adoption of children domiciled outside of Quebec by adopting persons who are also domiciled outside of Quebec at the time of the adoption. This is the appellants' position on the issue, with which the respondent agrees. [ 68 ] The very structure of the provisions themselves indicates this. [ 69 ] With its very first words,

article 563 C.C.Q. adds that "[e]very person domiciled in Québec wishing to adopt a child domiciled outside Québec" must comply with certain prerequisite formalities. [31] It would be difficult to be any clearer, and the

article in question obviously does not include the situation where both the adopting person (even a Canadian citizen) and the adopted child are domiciled outside of Quebec. The Quebec legislature cannot govern this type of extraterritorial situation and, again, this clearly was not its intention here, reserving

article 563 for (future) adopting persons domiciled in Quebec. [ 70 ]

Article 564 C.C.Q. continues, adding that "[t]he adoption arrangements are made" pursuant to certain terms. These "adoption arrangements" obviously refer to the adoption referred to in

article 563 C.C.Q. , that is, the adoption of a child domiciled outside of Quebec by an adopting person domiciled in Quebec.

This is all the more clear as it concerns ensuring that these arrangements are made [ translation ] "through an organization accredited by the minister of Health and Welfare Services pursuant to the Youth Protection Act , unless an order of the minister is published in the Gazette officielle du Québec stating otherwise". [32] It is difficult to conceive how these requirements could be imposed on or fulfilled by persons to whom Quebec law does not apply, or why a foreign court rendering an adoption judgment concerning persons who are all domiciled in its forum should take them into account. [ 71 ] Finally, since February 1, 2006,

article 565 C.C.Q. states that the adoption order of a child domiciled outside of Quebec may be made either abroad or judicially in Quebec. In the first case, unless it is certified as having been made in accordance with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption , the foreign judgment must be judicially recognized in Quebec in keeping with the two first paragraphs of

article 574 C.C.Q. Until January 31, 2006,

article 565 required instead that the adoption order of a child domiciled outside of Quebec be judicially rendered either abroad or in Quebec and, in the case of a foreign judgment, that it be judicially recognized in Quebec, such recognition being governed by the previous version of the first two paragraphs of

article 574. It is our view that in both cases, the subtext is the same: what is at issue here is the adoption of a child domiciled outside of Quebec by an adopting person subject to articles 563 and 564, in other words, an adopting person domiciled in Quebec. Articles 563 to 565 are to be read together, and there is no cause to include situations in

article 565 that were not intended by articles 563 and 564. To put it another way, although

article 565 begins with the words "[t]he adoption of a child domiciled outside Québec", what should be understood is [ translation ] "the adoption of a child domiciled outside Québec by an adopting person domiciled in Québec". [ 72 ]

Article 574 C.C.Q. , which provides for the implementation of

article 565 in cases where the foreign adoption judgment must be judicially recognized in Quebec, follows

article 565 and is similar in scope. This

interpretation reinforces its third paragraph, which sets out an exception to articles 563 and 564, clearly indicating that, in principle, those first two paragraphs apply only to the situations contemplated in these provisions. [ 73 ] In a recent article, Professor Goldstein expresses serious concerns on the subject. Commenting on certain judgments of the Court of Quebec, including the one at issue here and others referred to above, he writes: [ translation ] ... If

article 563 C.C.Q. indeed supposes that the adopting persons are domiciled in Quebec,

article 565 C.C.Q. does not set forth this requirement. It allows and demands that foreign adoption judgments be recognized without limiting these judgments to those cases where the adopting person is domiciled in Quebec . In fact, the title of paragraph 5 of

Chapter II of the Code relating to adoption states only that the adopted person 's domicile be abroad. In our view, this confusion must be decried. Its impact is to refuse persons who are domiciled abroad the right to have a perfectly valid adoption recognized in Quebec and to limit such recognition to Quebecers. [33] [ 74 ] Later, he adds: [ translation ] We do not think it relevant to question the specific jurisdiction of the Quebec court to recognize a foreign adoption judgment. [footnote omitted]

Article 3155 C.C.Q. is the provision of the Civil Code that usually requires Quebec authorities to give effect to foreign judgments;

article 785 C.C.P. provides that the request is made by way of a motion to institute proceedings. As with any other type of motion, this jurisdiction naturally stems from the usual internal rules. Indeed, the very nature or purpose of the action indicates this jurisdiction, which is even exclusive: effect is to be given to a foreign judgment in Quebec , nowhere else. The connection is so obvious that it’s invisible. If a Quebec Court did not have jurisdiction, it is difficult to see which foreign court would. Even if one were to invoke, in a misguided display of over-zealousness, paragraph 2 of

article 3147 C.C.Q. to confirm that the adopting person (or the adopted person) was domiciled in Quebec at the time of the proceedings to attribute jurisdiction to the Quebec court on a motion for recognition, we fail to see on what basis a court would be authorized to impose an additional requirement that the adopting persons be domiciled in Quebec when the adoption proceedings are brought abroad .

Shutting out the world this way is absolutely contrary to the new policy of openness in favour of foreign judgments, which was adopted with the reform of the Civil Code . ... [34] [ 75 ] I fail to see, however, how this reading reflects the impact of the judgments in question. They do not state that a person domiciled abroad at the time of the adoption cannot have this foreign adoption recognized in Quebec. They merely assert that an adoption order judicially made outside Quebec regarding a child domiciled outside Quebec by adopting persons also domiciled outside Quebec is subject to neither

article 565 nor

article 574 C.C.Q. and that, in that case, it is not up to the Court of Quebec to recognize this judgment or to determine its effects. The issue concerning whether the provisions in question are applicable or not to foreign domestic adoptions is distinct from the issue concerning the Court of Quebec's power to determine the consequences of foreign judgments ordering such adoptions. In other words, we agree with Professor Goldstein that the Quebec authority has jurisdiction to recognize a foreign judgment pursuant to

article 3155 C.C.Q. or

article 565 C.C.Q. without regard to articles 3141 C.C.Q. and following. The issue

then hinges only on identifying the competent authority with the ratione materiae jurisdiction: in terms of judicial courts, if it is not the Court of Quebec (as that court seems to affirm), it must be the Superior Court. [ 76 ] In short, to return to articles 563 to 565 and 574 C.C.Q. , these provisions do not apply to what may be characterized as foreign domestic adoptions, that is to say adoption orders made by a foreign authority in favour of adopting and adopted persons both domiciled in the foreign forum at the time, and there is nothing to justify broadening their application to include these situations.

These articles apply only to the adoption of a child domiciled outside of Quebec by an adopting person domiciled in Quebec. We note that this

interpretation is entirely consistent with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption , which contemplates solely the adoption of children domiciled in a country other than that of the adopting person. [35] This same issue was addressed in the versions of articles 563 to 565 and 574 C.C.Q in force before February 1, 2006 . [36] [ 77 ] Moreover, as the trial judge noted, it must be admitted that such adoption judgments, relating as they do to the status of individuals [37] or, in other words, to their personal and familial legal status, [38] are a fait accompli that should be recognized from the outset in Quebec.

In light of the second paragraph of

article 3092 C.C.Q. , the effects of such judgments remain the same as in the domicile of the adopting person at the time of the adoption. It could not be otherwise, as the filiation established in such circumstances was judicially constituted outside of Quebec at a time where neither the adopting nor the adopted persons were subject to Quebec law. [ 78 ] If case law and practice both seem to have taken this viewpoint regardless of the absence of a legislative provision, some still criticize such an approach.

Considering the issue of the effect of foreign judgments concerning status in Quebec, Professors Goldstein and Groffier point out that the Civil Code Revision Office proposed the following in its Report on the Quebec Civil Code , in 1977, in book nine ("Private International Law"): 82 A decision rendered outside Québec relating to the status or capacity of persons has effect in Québec without exequatur, except where the decision orders measures of restraint on persons or execution upon property. [39] [ 79 ] The Office had the following to say about this provision: 82 This

article clarifies existing law. Decisions relating to the status and capacity of persons are not subject to the procedure of exequatur. This rule is followed in France and elsewhere (130). For example, any decision appointing a tutor or declaring a marriage null must be recognized of right without it being necessary to proceed by way of exequatur. Only when this decision gives rise to measures of constraint against persons or of execution on property is the exequatur required.

Obviously, a decision rendered outside Québec relating to the status and capacity of persons may still be contested if it does not comply with the conditions outlined in the Draft. [40] [ 80 ] According to Goldstein and Groffier, this proposal by the Office [ translation ] "merely recreated the existing practice", [41] regarding which they had the following to say: [ translation ] In fact, integration in a Quebec judgment is not always essential.

It is not necessary, for example, when the foreign judgment serves only to establish a person's status or capacity — a divorce decree, the appointment of a bankruptcy trustee, of a tutor to a minor, or of an estate administrator, for example. [footnote omitted] If the validity of the judgment is challenged, however, the issue of its recognition arises and it becomes necessary to determine whether the judgment meets the requirements for recognition and for enforcement of a foreign judgment. The reform discarded

article 82 of the 1977 draft Civil Code , which is regrettable. Professor Talpis and one of the co-authors of this work [footnote omitted] maintain that judgments concerning a person's status should in fact be subject to judicial recognition before they can be used in Quebec, despite the risky practice that has evolved there. [42] ... Finally, they point out that since the legislature failed to keep

article 82 of the draft Civil Code , supra , the codifier did not intend to confirm the practice. It could be argued that the legislature undoubtedly thought there was little use in stating the obvious. To which it could be answered that, as the issue is contentious, it was useful to specify this important factor in practice and the refusal to adopt

article 82 of the Draft Civil Code was sufficient in this respect, there being no need to include a contrary provision that would have added nothing given the general principle that there is no recognition as of right, although the new Code does not lack for redundant or superfluous provisions, such as

article 3078 C.C.Q. Clearly, it is difficult to give a simple and definitive answer to this question. Whatever the case may be, commentators acknowledge that [ translation ] "it is probable, however, that the present practice ... will continue ..." [footnote omitted] [43] [ 81 ] As we have seen, there are arguments in favour of both positions, but the authors' prediction materialized: indeed, as shown, for example, by the Court of Quebec judgment in Adoption (En matière d') , [44] the practice has endured. And rightly so because, despite

article 82 of the draft suggested by the Revision Office falling by the wayside, it appears to have been implicitly confirmed by the legislature's choice to restrict the duty to recognize a foreign adoption judgment to the scheme established in articles 563 C.C.Q. and following, which is consistent with articles 3091, 3092, and 3166. [ 82 ] In short, judicial recognition of a domestic adoption judgment not falling under articles 563 to 565 and 574 C.C.Q. is not necessary for the existence of the status established therein, (i.e., the filiation) to be noted in Quebec and to have effect.

Logically, people do not automatically lose the benefit of a foreign judgment establishing their filiation or its corollary, their parental status, and they are not required to seek the judicial recognition of that judgment to recover that benefit, simply because they settle or resettle in Quebec. In my view, the principle of the permanence of personal status conflicts with such a viewpoint.

[ 83 ] To conclude otherwise would risk creating exorbitant and unfair consequences.

Why should immigrants to Quebec be under an obligation to systematically have adoption judgments rendered in their countries of origin be recognized here in order to validate a filiation that was established before they arrived on Quebec soil by an instance that our own laws have acknowledged to have complete jurisdiction? [ 84 ] That being said, it goes without saying that if the validity or the effect of what at first glance seems to be a foreign domestic adoption is questioned, as was the case here, and it becomes necessary to determine the issue in Quebec, the interested persons are not without recourse.

In such circumstances, Quebec judicial instances have jurisdiction to determine the validity or the effects of such an adoption. The issue of which Quebec court must do so is nonetheless raised. * * [ 85 ] As seen above, [45] the appellants have chosen to proceed by way of a motion for declaratory judgment to have the status of their children Y and C determined, a proceeding governed by

article 453 C.C.P. The Court is bound by the appellants' choice and it is by examining their proceeding, whose allegations must be accepted as fact at this stage, that the issue of jurisdiction is determined. [ 86 ] But what do the appellants want and what are they truly seeking through this motion?

Basing themselves on the assertion, maintained on appeal, that the domicile was Polish at all relevant times, the appellants seek to have Quebec law declared inapplicable, which would lead the Court to take note of the adoptive filiation and declare it to have been established by the Polish judgments, which incidentally would have an analogous effect to judicial recognition.

Therein lies their basic posit, and their main conclusion, presented in three parts – declare Quebec law to be inapplicable to their adoption situation, note the filiation effect of the Polish judgments, and declare Y and C to be their children – focuses on it. [ 87 ] Can this motion be brought pursuant to

article 453 C.C.P. ? [ 88 ] That

article states: 453. Celui qui a intérêt à faire déterminer, pour la solution d'une difficulté réelle, soit son état, soit quelque droit, pouvoir ou obligation pouvant lui résulter d'un contrat, d'un testament ou de tout autre écrit instrumentaire, d'une loi, d'un arrêté en conseil, d'un règlement ou d'une résolution d'une municipalité, peut, par requête introductive d'instance, demander un jugement déclaratoire à cet effet. 453.

Any person who has an interest in having determined, for the resolution of a genuine problem, either his or her status or any right, power or obligation the person may have under a contract, a will or any other written instrument, a statute, an order in council, or a by-law or resolution of a municipality, may, by way of a motion to institute proceedings, ask for a declaratory judgment in that regard. [ 89 ] No one here disputes the existence of a genuine problem within the meaning of the case law concerning declaratory judgments . [46] The appellants have an interest in having this problem resolved immediately in order to completely resolve their dispute with the respondent, [47] who challenges the validity of the adoptions.

Under the circumstances, the fact that the immigration authorities, who are third parties to the appellants' motion, are at the source of the problem is not an obstacle. We may apply the teachings of the Supreme Court in R. in right of Newfoundland v.

Commission Hydro-Électrique de Québec , [48] where a third party was also involved in the creation of the genuine problem. [ 90 ] It is noteworthy that in 1983, in Destiné et Monpoint , [49] a case similar to ours, the Superior Court dismissed a motion seeking a declaration of validity of an adoption judgment rendered in Haiti in favour of the children's biological father's wife. At the time of the adoption, the wife was domiciled in Quebec. The petitioners sought to obtain a Quebec judgment to prevent any difficulties in the sponsorship process of their children as immigrants to Canada.

Deeming that [ translation ] "the scepticism of the immigration officer" [50] does not create a genuine problem that would require resolution through

article 453 C.C.P. , the judge dismissed the motion (refraining, however, from determining the jurisdiction of the Court of Quebec or the Superior Court in this matter). With respect, this conclusion is not appropriate in the present case, where the appellants face not merely the possible scepticism of an immigration officer but the officer's actual refusal. Moreover, in light of the evolution of case law on the notion of what constitutes a "genuine problem", it is my opinion that the situation at issue meets the requirements set out in

article 453 C.C.P. [ 91 ] Thus, there is a genuine problem in this case, which the appellants have an interest in having immediately determined. [ 92 ] Moreover, the appellants seek the determination of a question of status, namely, the filial relationship uniting them to the children Y and C, and the identification of the law applicable to this matter in light of the domicile of the interested parties at the time of the adoptions.

Case law has not often dealt with declaratory judgments determining a person's status, [51] but this is one of the two situations expressly contemplated by the Code of Civil Procedure (the other being that of the right, power, or obligation which may result from a contract, will, or any other written instrument, statute, order in council, rule or municipal by-law). [ 93 ] The motion is therefore admissible pursuant to

article 453 C.C.P. , as the appellants seek the determination of their status and that of their children as a consequence of the Polish adoption judgments. [ 94 ] Accepting the allegations of the motion as fact, insofar as the appellants' proceeding is purely declaratory according to its main conclusion, it follows that the appellants should have applied to the Superior Court. Since Québec (Sous-ministre du Revenu) v. Industrielle-Alliance (L'), compagnie d'assurance sur la vie , [52] no other conclusion is possible .

That case determined which of two mortgagees were entitled to collect rent on the mortgaged building. The pecuniary interest of the parties to the dispute was only $9,980.06 at the time. Despite

article 34 C.C.P. , the Court found that, since the power to issue purely declaratory judgments was not attributed to any other court, it rested exclusively with the Superior Court pursuant to

article 31 C.C.P. In other words, because the action

brought in that case was purely declaratory and did not seek any coercive measure, the Superior Court was competent, and indeed had sole jurisdiction. [ 95 ] In the present case, because it truly is a declaratory action, we must come to the same conclusion. [ 96 ] In

article 36.1 C.C.P. , the legislature did in fact attribute "matters respecting adoption" to the Court of Quebec, but this attribution, as drafted, cannot strip the Superior Court of its declaratory power any more than can the attribution in

article 34 C.C.P. [53] In the present case, the parties do not seek an adoption order or even the recognition of a foreign adoption judgment, within the meaning of the term in Quebec private international law (with a view to making it enforceable), [54] but only to a determination that Quebec law relative to adoption does not apply, a determination that the filiation of the children in question is completely and exclusively governed by Polish law, a declaration that this filiation was duly established by the Polish judgment ordering a purely domestic adoption, and a declaration of its validity and effect in Quebec.

This motion is strictly declaratory. Whether the appellants are right or wrong is irrelevant. In light of what they are asking and the propositions of law and of fact that underlie their conclusions, they should have applied to the Superior Court. [ 97 ] In this case, the appellants' motion cannot be found to fall under the Court of Quebec's auxiliary jurisdiction to determine its own jurisdiction in the matter.

As previously stated, the Court of Quebec correctly acknowledged that it did not have jurisdiction in matters of foreign domestic adoptions and it appears curious, to say the least, to apply to this Court for the recognition of a foreign domestic adoption judgment when it can only lead to a finding of absence of jurisdiction. Even if the appellants' motion is not drafted in these terms or in this manner, that is indeed the result that it seeks. [ 98 ] Admittedly, the Youth Court and the Youth Division of the Court of Quebec have decided in the past that they had complete and exclusive jurisdiction pursuant to

article 36.1 C.C.P. over a motion to recognize a foreign adoption judgment ordering the adoption of a child born in Quebec but domiciled abroad, like the adopting person, at the time of the adoption in order to ensure the modification of the Quebec civil status registers. This was the case in Droit de la famille — 73 [55] and Droit de la famille — 1358 , [56] which involved judgments rendered in Nova Scotia ordering the adoption of children born in Quebec but domiciled in Nova Scotia at the relevant time by adopting persons also domiciled in that province.

In Droit de la famille — 1792 , [57] which involved a child born in Quebec but adopted in Ontario where he was domiciled at the time, the Court of Quebec, per Boulanger J.C.Q., came to the same conclusion, deeming that the recognition of these judgments was necessary to modify the Quebec civil status register, it being understood that [ translation ] "it is not in the interest of children to find themselves with contradictory filial relationships".

The judge deemed that this must be viewed as accessory to the adoption judgment and, in light of the exclusive jurisdiction of the Court of Quebec in matters of adoption as per

article 36.1 C.C.P. , the judge decided that he had complete jurisdiction to recognize the Ontario judgment and order the custodians of the civil status registers to modify these registers to reflect the adoption judgment. The Court of Quebec concluded similarly in S.L. and L.L. , supra , [58] recognizing an adoption judgment rendered in New Brunswick where both the adopting and adopted persons were domiciled in that province, although the child was born in Quebec.

The mother sought to have the judgment recognized so [ translation ] "that her son's birth certificate reflects the adoption order made in New Brunswick" and Alarie J.C.Q. felt that only the Court of Quebec had the jurisdiction to do so. To the same effect, see also: Droit de la famille — 1017 , [59] where the Superior Court declined jurisdiction in analogous circumstances in favour of the Youth Court, as it was then. [ 99 ] Those cases, however, can be distinguished from this one in that they all concerned children born in Quebec, which is not the case here.

Moreover, considering the procedural context at the time and the content of the provisions that the Civil Code of Québec now devotes to both adoption and modification of the civil status registers (particularly

article 137 C.C.Q. , which did not exist at the time), and in view of the particular nature of the action brought in those cases, those judgments are not determinative. Indeed, they are even less so since the clarification brought by the Court of Quebec in Québec (Sous-ministre du Revenu) v. Industrielle-Alliance (L'), compagnie d'assurance sur la vie. [60] * * [ 100 ] In closing, since the Court of Quebec, as noted above, correctly acknowledged that it did not have jurisdiction over foreign domestic adoptions because they are not included in

article 36.1 C.C.P. , the Superior Court has sole jurisdiction pursuant to

article 31 C.C.P. , especially since the present proceedings are purely declaratory and clearly fall within the ambit of

article 453 C.C.P. [ 101 ] The jurisdiction of the Superior Court is obvious even if the appellants sought an alternative conclusion in their motion: declare the Quebec laws inapplicable or apply the third paragraph of

article 574 C.C.P. As previously indicated (see supra at para. 23), these two conclusions cannot coexist, and the second one is not rooted in any of the allegations of the motion. One is not even subsidiary to the other. In fact, they are rather contradictory, if not altogether incompatible: either the appellants were domiciled in Poland at the time of the litigious adoptions, in which case articles 563 to 565 and 574 C.C.Q. do not apply, or they were not and these provisions do apply. The legal consequences of the two propositions are completely different. One might even say that they are contrary and irreconcilable causes of action within the meaning of

article 66 C.C.P. [ 102 ] In fact, the appellants have united two distinct remedies in one written pleading. The appellants should have applied to the Superior Court to have the Quebec statutes declared inapplicable and to determine the effect of the Polish judgments. It is only in the event that their motion was dismissed and the Quebec statutes declared to be applicable by the Superior Court that the appellant could then have attempted to benefit from the third paragraph of

article 574 C.C.Q. , by applying to the competent instance in such matters, the Court of Quebec. [ 103 ] We can readily agree that this solution is inconvenient for the appellants. In the present state of the law, however, it is unavoidable. * * [ 104 ] I would therefore allow the appeal, without costs given the nature of the dispute, and set aside the judgment of the Court of Quebec, but only to declare that it did not have jurisdiction on the motion for declaratory judgment presented by the appellants. Consequently, the motion in question should be dismissed solely on this ground.

MARIE-FRANCE BICH, J.A.