2015 QCCA 781, 2015 QCCA 781

Droit de la famille — 15984 2015 QCCA 781 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024899-148 (760-04-012007-143) MINUTES OF THE HEARING DATE: May 1, 2015 CORAM: THE HONOURABLE FRANÇOIS PELLETIER , J.A. NICHOLAS KASIRER , J.A. MARTIN VAUCLAIR , J.A. APPELLANT COUNSEL M. W. Mtre LOUIS DESSUREAULT Mtre MARTIN J. GREENBERG ( Hendy, Greenberg s.e.n.c. ) RESPONDENT COUNSEL b. V. Mtre STÉPHANE L’écuyer ( Me Stéphane L'Écuyer, Avocat )

On appeal from an interlocutory judgment rendered on November 17, 2014 (rectified on November 19, 2014) by the Honourable Mr. Justice Mark J. Peacock of the Superior Court, District of Beauharnois NATURE OF THE APPEAL : Declinatory exception – safeguard order Appellant's de bene esse motion for permission to present new evidence (Article 509 C.C.P.) Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 11:58 Commencement of the hearing. 11:59 Submissions by Mtre Louis Dessureault. 12:34 Mtre Stéphane L'Écuyer requests a recess. 12:35 Recess. 12:37 Resumption of the hearing.

Submissions by Mtre L'Écuyer. 12:55 Reply by Mtre Dessureault. 12:57 Recess. 13:08 Resumption of the hearing. 13:09 Unanimous judgment rendered by the Court – see page 3. 13:10 Conclusion of the hearing. Clerk BY THE COURT JUDGMENT

[ 1 ] M. W. appeals a corrected judgment, rendered on November 19, 2014, by the Honourable Mark Peacock of the Superior Court of Quebec, District of Beauharnois, which dismissed the Appellant's motion for declinatory exception and declared that the Superior Court of Quebec had jurisdiction to hear the Respondent's application for custody and access. [1] [ 2 ] In 2007, the Appellant and the Respondent met while on a vacation abroad. The Respondent lived in Town A, Quebec with her two daughters. The Appellant lived in Oshawa, Ontario. They engaged in a long-distance relationship.

X , their son, was born on [...], 2011. [ 3 ] From October 2011 through June 2013, the Respondent lived with X in Quebec. Following the birth, the Appellant stayed with the Respondent at her home for three months. He then returned in Oshawa, but visited the Respondent and X every other weekend. [ 4 ] The couple discussed moving in together. Plans were made to live in Oshawa. On July 1, 2013, the Respondent sold her house, closed the daycare center she had been operating for several years, shipped her belongings to the Oshawa property and moved in with X and one of her daughters.

Besides her older daughter who stayed with her father, the Respondent left nothing behind. [ 5 ] Soon after arriving in Ontario, the Respondent opened a successful daycare business. The daughter attended a French language high-school. X did not yet attend school. In short, the family life took root in Oshawa. [ 6 ] The couple separated in February 2014. Nevertheless, they continued to live in the same house until September 2014.

The Respondent closed her daycare in July 2014. [ 7 ] In September 2014, unbeknownst to the Appellant, she moved back to Quebec with X and her daughter. [ 8 ] In September 2014, the Appellant and Respondent both filed an application for custody of X : the Appellant before the Superior Court of Ontario and the Respondent before the Quebec Superior Court. [ 9 ] In October 2014, in Quebec Superior Court, the Appellant filed a motion for declinatory exception and return of X . He submitted that Quebec did not have jurisdiction to hear the Respondent's custody application. In November 2014, his motion was dismissed.

He appealed to this Court. [ 10 ] The essential question to decide is whether the Quebec Courts or the Ontario Courts have jurisdiction over the matter. On this specific issue, the dispute rapidly became acrimonious. [ 11 ] It is abundantly clear that the principal establishment of the parents, and X, was in Ontario from the time the parties decided to settle there indefinitely in July 2013. It was the place where the Respondent ran her business, the daughter went to school, X made friends, the father worked and, foremost, where the family consciously decided to live. As per

article 76 of the Civil Code of Quebec , the proof of such intention is assessed taking into account all of the circumstances of the case at the time decision is made. The fact that the relation later ended is immaterial. Further, removing a child from its habitual residence without the consent of the other custodial parent cannot, as a general rule, and does not, in this case, change the domicile of the child. [2] [ 12 ]

Article 3142 of the Civil Code of Quebec , provides that Quebec has jurisdiction in custody matters if and only if the child is domiciled in Quebec.

That was not the case in September 2014, at witch time both parents and X were domiciled in Ontario. [ 13 ] The first judge correctly identified the issue, being whether the domicile of X was in Quebec or Ontario, but, with due respect, entered in a discussion of no relevance to the ultimate outcome of the matter before him when he sought to inquire into the parents’ intentions at the time of the separation, when he considered which of them was the primary caregiver and when he asked whether the choice of moving to Ontario was vitiated by broken promises.

While it might be more difficult in some cases to establish one’s habitual residence, the very strong and uncontradicted objective facts leave no doubt that X is not domiciled in Quebec. [ 14 ] Before concluding, we note that the Appellant filed a de bene esse motion to adduce new evidence of a judgment of the Superior Court of Justice for Ontario which, on October 30, 2014, ordered the return of X to Ontario. Quite rightly, the Respondent did not dispute the authenticity of the judgement, but argued that it did not constitute new evidence within the meaning of

article 509 C.C.P. The Court acknowledges the Ontario judgment. The motion for new evidence is not material to the outcome here and is declared to be without further object. [ 15 ] The Court also acknowledges that the Respondent confirmed at the hearing she would return X to Ontario in the event the appeal is allowed, in conformity with the pending Ontario order and the undertaking taken by the Appellant.

FOR THE AFOREMENTIONED REASONS, THE COURT: [ 16 ] ACKNOWLEDGES the judgment of the Superior Court of Justice for Ontario dated October 30, 2014; [ 17 ] DECLARES that the Motion to adduce new and indispensable evidence is without object; [ 18 ] ALLOWS the appeal; [ 19 ] SETS ASIDE the Judgment of November 19, 2014; [ 20 ] GRANTS the motion for declinatory exception; [ 21 ] DECLARES that the Superior Court of Quebec does not have jurisdiction to adjudicate the Respondent’s Motion to Institute Proceedings for Child Custody, Child Support and Safeguard Orders;

[ 22 ] WITHOUT COSTS , given the nature of the dispute. FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. [1] Droit de la famille — 142906 , 2014 QCCS 5572 . [2] Droit de la famille — 143017 , 2014 QCCA 2188 at para 39 .