2019 QCCA 461, 2019 QCCA 461

Droit de la famille — 19412 2019 QCCA 461 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028107-191 (500-04-073612-187) DATE: March 18, 2019 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. JOCELYN F. RANCOURT, J.A. STEPHEN W. HAMILTON, J.A. B APPELLANT – Defendant v.

A RESPONDENT – Plaintiff and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The appeal concerns a judgment rendered by the Superior Court which ordered the immediate return of the two minor children of the parties to [Country A] ([Country A]), pursuant to an Act respecting the Civil Aspects of International and Interprovincial Child Abduction [1] implementing in this Province the principles and rules set forth in the Hague Convention on the Civil Aspects of International Child Abduction [2] . [ 2 ] The Appellant argues that the judge erred in concluding that the children’s habitual residence was in [Country A], because she used a limited approach whereby she determined habitual residence based on a very short period of time namely from August 2 to November 9, 2018 and failed to consider the children’s reality since birth.

The Appellant also alleges that the judge erred in her analysis of the intention of the parents, by giving significant weight to the text messages exchanged between them from August 2 to August 20, 2018 and by failing to consider the Appellant’s version of facts, and more particularly her fear of Respondent. According to the Appellant, the parties applied for permanent resident status in 2017 because their intention was to settle in Canada on a permanent basis.

She also claims that the last mutually shared intent of the parents during this limited period of time was to let the children stay in Canada until the end of the school year in June 2019, as a result of which there was no breach of custody rights nor wrongful retention of the children.

She adds that the judge erred in her assessment of the parties’ credibility. [ 3 ] Moreover, the Appellant submits that the judge failed to recognize that the children “ will face psychological harm ” if they are “ sent back ” to [Country A]. [ 4 ] Finally, the Appellant argues that the judge erred in refusing to grant the Appellant a provision for costs. *** [ 5 ] The Appellant has sought the permission to file additional new and indispensable evidence which the Respondent is contesting, while asking this Court the authorization to file his own new and indispensable evidence.

Save for the letters exchanged between their lawyers following the hearing in first instance, all of the exhibits which the parties seek to introduce into the record, which have to do with the proceedings that have been introduced in [Country A] or the involvement of the Office for [Protection of Children A] in [Country A], existed at the time of the hearing and were available to the parties’ lawyers in [Country A]. [ 6 ] To that extent, they could have been made available for the hearing and would not appear to qualify as new evidence.

Moreover, while the exhibits serve the purpose of informing the Court of the status of the proceedings in [Country A] and the involvement of the Office for [Protection of Children A] in [Country A], they bear no relevance to the judge’s determination of habitual residence of the children and do not qualify as indispensable evidence. [ 7 ] Even assuming that they should be considered as new and indispensable evidence in the context of the appeal, ultimately they have no bearing on its outcome, as more fully explained below. ***

[ 8 ] The judgment under appeal provides a thorough review of the facts of the case, the more relevant ones being summarized below. [ 9 ] The parents were both born in [Country A] where they married in 2011. They separated in August 2018, while they were in [Country A] for the summer. The Appellant initiated the discussion on separation. The parties exchanged several text messages both on the eve and after their meeting on August 3, 2018, during which they agreed to separate and established the terms of their temporary return to Canada.

The Appellant essentially agreed to return with the two children (respectively 3 and 7 years old) at the end of August 2018 and reside in Montreal until Christmas 2018, in a townhouse which the Respondent rented and furnished, near the family residence which the Appellant found too large for her purposes. [ 10 ] According to her text messages sent in August 2018, the Appellant asked the Respondent to open bank accounts for the children in [Country A].

The parties agreed that the children would attend [School A] in Town A, which the Appellant described as offering courses in many languages that would suit the children until they turn 18. [ 11 ] Following their discussion about separation, the Respondent returned to Montreal on August 6, 2018 to find a townhouse for the Appellant and the children until Christmas 2018. The real estate agent confirmed that she was instructed to find a townhouse for rent until Christmas 2018, but that there were only one year leases available.

Without advising the Respondent, the Appellant returned to Montreal shortly after to sign divorce proceedings which were served on the Respondent on August 10, 2018, seeking custody, child support, alimony and a large lump sum. A day earlier, on August 9, 2018 the Respondent also signed his own divorce proceedings in [Country A], which were never served on the Appellant. [ 12 ] As far as the situation of the parties go, the Respondent is a [professional], who was [hired by his employer] in […]. [...].

He remained with the [employer] until November 2018, save during [...] when he returned with the Appellant and their infant son, X, to [work] in [Country A] and a few months in the spring of 2018 [...]. He returned to Montreal [...] with the [employer] on July 1 st , 2018.

This contract was terminated on November [...], 2018, as a result of which the Respondent returned a few days later to [Country A] where he is now living permanently. [ 13 ] The Appellant [has achieved several accomplishments] in [Country A] […]. [ 14 ] While [working] in Canada, the Respondent worked on temporary work permits and never obtained a permanent resident status.

He filed an application for permanent residency for himself and the Appellant in 2017, which he abandoned after the separation of the parties in August 2018. [ 15 ] The parties were aware that the Respondent’s career [would eventually] end […] in Montreal. On November [...], 2018, [...], his contract was cancelled. As a result, his work permit was revoked. [ 16 ] The Respondent returned permanently to [Country A] on November [...], 2018. [...] [ 17 ] The Respondent testified that the family never intended to establish in Canada and had planned to return to [Country A] at the end of his [...] career [in Montreal].

In fact, the family returned to [Country A] every summer, [...]. [ 18 ] On November [...], 2018, the Appellant’s attorney advised the Respondent’s attorney that the Appellant was refusing to go back to [Country A] with the children despite the termination of his contract, contrary to her prior commitment. [ 19 ] At the hearing, the Appellant testified that her agreement to return permanently to [Country A] and to enroll the children in [School A] in Town A until they turned 18 was a lie, because she feared the Respondent and told him what she assumed he wanted to hear.

The Respondent heard this for the first time at the hearing. *** [ 20 ] In her analysis, after referring to Sections 3 , 4 and 5 of the Act which define the wrongful removal or retention of a child, the judge reviewed the four criteria to be met in order for the Act to apply and concluded that: 1. The Respondent had custody rights to the children which were violated by the Appellant, as he enjoyed joint custody of the two children who are under 16 years of age; 2. [Country A] is a “ designated State ” for the purpose of the application of the Act; 3.

The Appellant’s refusal to return to [Country A] with the children breached his custody rights, as he could no longer remain in Montreal, given the cancellation of his temporary work permit; 4. The children’s “habitual residence” at the moment of the breach was [Country A] in light of the hybrid approach adopted by the Supreme Court of Canada in Balev . [3] [ 21 ] The Appellant shows no reviewable error on the part of the application judge in determining that the Respondent’s custody rights were breached.

Nor does she demonstrate any reviewable error in the judge’s conclusion that the children’s habitual residence was in [Country A], in view of the very particular facts of the case. [ 22 ] To reach this conclusion, the judge considered all the circumstances of the case, including the children’s factual situation and the parents’ intent as to the temporary nature of the return to Montreal in the fall of 2018.

In fact, she took into consideration not only the intention of the parents as expressed in their text messages in the period that immediately preceded the breach but also the transitory situation of the family resulting from the Respondent’s [work] which made his stay in Montreal, as well as that of the Appellant and children, temporary and subject to the duration of his contract and visa work permit.

[ 23 ] The fact that the children had lived in Montreal since birth and attended daycare or school in Montreal, in addition to the older child being engaged in various activities in Montreal, did not change the fact that their presence in Montreal was transitory and entirely dependent upon their father’s [work] and his contract with the [employer].

In this regard, she wrote: [68][…]In fact, the only connection of the children to Quebec was through the Father’s contract with the [employer] and this connection was entirely conditional upon his contract being renewed periodically, which allowed him to obtain a temporary work permit. [ 24 ] She also considered the application for permanent residence filed in 2017, as discussed in her judgment at paragraph 72. [ 25 ] Perhaps the application judge could have been more explicit on the children’s ties to Quebec and [Country A], but this bears no impact on the outcome of this case.

She notes that the children are very young and that language is not a determining factor. Both children are [Country A] citizens and speak [language A]. Their whole family is in [Country A], where they return every summer. [ 26 ] Now turning to the parties’ agreement regarding the temporary nature of the children’s stay in Montreal in the Fall of 2018 and their common intent to bring them back to Town A at the end of the Fall or school semester, the judge assessed the credibility of the parties and concluded that the Respondent was credible while the Appellant was not.

She also had the benefit of the corroborative testimony of Ms.

C, the agent hired for the purpose of the short-term rental of the townhouse, who confirmed the Respondent’s instructions to find a townhouse for the period ending in December 2018. [ 27 ] In the end, the determination of the children’s habitual residence is a question of fact and the Appellant fails to demonstrate that the judge committed an overriding and palpable error in her analysis of the evidence adduced at the hearing which would justify this Court’s intervention. [ 28 ] Moreover, the Appellant fails to demonstrate any error on the part of the application judge in refusing to recognize that the children would face a grave risk of psychological harm in being returned to [Country A] in view of the Appellant’s fame and notoriety and the scrutiny of the press. [ 29 ] As far as the judge’s refusal to award a provision for costs is concerned, given the discretionary nature of the judge’s decision, this Court will not intervene as the Appellant has failed to show that the judge’s decision was unreasonable. [ 30 ] For all of these reasons, the Court finds that there is no reason to intervene with respect to the decision ordering the return of the children to [Country A], save for the timing of such return. [ 31 ] In this regard,

Section 1 of the Act provides that the object of the Act is to secure prompt return to the place of habitual residence of children moved to or retained in Quebec in breach of custody rights, as well as to ensure that the rights of custody and access under the law of a designated State are effectively respected in Québec. [ 32 ] As a result, court orders generally reflect that object and provide for the immediate return of the children, so that all questions related to custody are debated in the designated State. [ 33 ] That being said, there are exceptional situations where it remains possible for an application judge to delay the return of the children, especially where such a delay is found to be in their best interest.

Such is the case for example, where the child is near the end of his school year, or where the child is undergoing medical treatment in the foreign State.

A delay may also prove to be necessary, prior to the child’s return, to enable the re-establishment of contacts between the child and the parent with whom he has not had significant contacts since being moved to the foreign State. [ 34 ] In previous decisions, this Court found that the return of a wrongfully removed child after the end of the school year was in the child’s best interest [4] . [ 35 ] Discussing the courts’ discretion to require undertakings when ordering the return of a child, the Supreme Court has also recognized the necessity of remedial flexibility to foster the Hague Convention’s objectives: The Convention does not provide specifically for remedial flexibility because it is based on the primary assumption that the wrongful removal of a child necessarily has harmful effects (see the

preamble; see also Anton, supra, at p. 543). In interpreting the Convention, courts have recognized that frequently an unqualified return order can be detrimental to the short-term interests of the child in that it wrenches the child from its de facto primary caregiver. [5] [ 36 ] In the case at hand, the timing of the return is of concern to the Court, given that the older child is currently completing his grade 1 with the end of the school year being less than three months away. While the application judge felt compelled to return the children promptly pursuant to the wording of the Act , the Court finds that such a strict

interpretation could compromise the older child’s school year and cause undue as well as unnecessary stress to him and to the parties. [ 37 ] Moreover, when questioned by the Court in this regard at the hearing, the parties agreed that, in the event that the return order is confirmed, it would be in the best interest of the children that the date of return be postponed to the end of the school year in June 2019. [ 38 ] Under these circumstances, the Court is of the view that the children’s return should be delayed until the end of the school year and set on June 24, 2019 or at the latest on June 30, 2019, on the condition that prior notice of the date of departure be given by the Respondent to the Appellant by no later than June 1 st , 2019 and tickets be delivered before June 20, 2019. [ 39 ] This timing will contribute to facilitate a seamless return as it will coincide with the summer vacation of the children and the family tradition to spend summer vacations in [Country A]. [ 40 ] In the interval, the Court will however order that the Appellant take measures to allow the Respondent to have regular contacts

with the children, be it by telephone or internet (Skype or Facetime), at least twice a week at a time to be agreed by the parties or at any other frequency to which they agree.

FOR THESE REASONS, THE COURT: [ 41 ] DISMISSES the Applications for permission to introduce new indispensable evidence; [ 42 ] GRANTS the appeal, for the sole purpose of modifying paragraphs 119, 120 and 121 to modify the date of return of the children from February 15, 2019 to June 24, 2019 or at the latest on June 30, 2019, so that said paragraphs read as follows: [119] GRANTS the application by the Father for the immediate return of the minor children X and Y to [Country A], which return shall take place on June 24, 2019 or at the latest on June 30, 2019 , at the Mother’s residence in Montreal, at 9 am; [120] ORDERS the Mother to comply with the present order, to prepare the children’s belongings for their return on June 24, 2019 or at the latest on June 30, 2019 , and not to interfere in the process of their immediate return to [Country A], subject to the Respondent confirming the exact date of return of the children by June 1 st , 2019 and delivering the airplane tickets by no later than June 20, 2019 ; [121] ORDERS the Mother and the Father not to discuss the present judgment or the return with the children with them, other than to tell them that they will be going back to [Country A] with their Father on June 24, 2019 or at the latest on June 30, 2019 , to spend time there with him; and, REITERATES the orders rendered by the undersigned at trial, not to denigrate the other parent and not to discuss the present litigation or the divorce litigation with the minor children, nor in their presence or earshot; [ 43 ] ORDERS that, in the interval, the Appellant take measures to allow the Respondent to have regular contacts with the children, by way of telephone or internet (Skype or Facetime), at least twice a week at a previously agreed time, or at any other frequency or time agreed to by the parties; [ 44 ] WITHOUT legal costs, given the nature of the proceedings.

GENEVIÈVE MARCOTTE, J.A. JOCELYN F. RANCOURT, J.A. STEPHEN W. HAMILTON, J.A. M tre Maria Rita Battaglia Maria R. Battaglia, Avocats For Appellant M tre Natacha Calixte M tre Béatrice Lalande M tre Brigitte B. Garceau Robinson Sheppard Shapiro For Respondent M tre Andréa Boivin-Claveau Ministère de la Justice (DGAJLAJ) For Impleaded Party Date of hearing: March 14, 2019