2022 QCCA 788, 2022 QCCA 788

Droit de la famille — 22924 2022 QCCA 788 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029706-215 ( 500-04-077646-215 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). DATE: June 3, 2022 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. PETER KALICHMAN, J.A.

APPELLANT COUNSEL M. B. Mtre Sébastien Dubé M tre Sabrina Olivares ( Dubé Avocats LawFirm ) RESPONDENT COUNSEL D. L. Mtre Véronique Collard ( Collard & Eustache ) On appeal from a judgment rendered on August 27, 2021 by the Honourable Pierre Nollet of the Superior Court , District of Montreal . NATURE OF THE APPEAL: Family – Application for a declinatory exception granted – Child's domicile – Jurisdiction of Quebec courts. Clerk at the hearing : Ariane Simard-Trudel Courtroom: Pierre-Basile-Mignault

HEARING 9:35 Commencement of the hearing. Continuation of the hearing held on June 2, 2022. The parties were excused from appearing in Court. BY THE COURT: Judgment − see page 4. Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P .”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (arts. 15 and 16 C.C.P .). [ 1 ] The parties are the parents of a child who is currently eight years old. The child was born in Town A on [...], 2013.

She currently resides in British Columbia with the Respondent (“the mother”). [ 2 ] Both parents are from Town A. Although they already knew each other in Town A, they met again in Town B when they were both attending [University A]. In [...] 2013, the mother moved back to Town A where she gave birth. [ 3 ] In September 2014, the mother moved back to Town B to complete her Ph.D. [ 4 ] In 2016, the Superior Court rendered interim orders by which the mother was granted custody and the Appellant (the father”) was granted certain access rights.

Those orders were valid until January 10, 2017. [ 5 ] In September 2017, after having completed her Ph.D., the mother moved back to Town A with the child where they have lived ever since. [ 6 ] In August 2021, the father introduced an originating application to modify measures regarding custody and for safeguard measures, seeking to obtain sole custody of the child. [ 7 ] The mother filed a motion for declinatory exception and to dismiss the father’s application, alleging that the Superior Court lacks jurisdiction since the child has resided in British Columbia for almost 4 years.

The motion was supported by a general sworn statement of the mother stating that all the facts alleged were true.

The father, in turn, filed a sworn statement in which he alleged facts to support his proposition that the mother took the child to British Columbia without his agreement and illegally, which were contested by the mother who filed a detailed sworn statement. [ 8 ] This motion to dismiss was heard and granted by the Superior Court on August 27, 2021, which determined that the father implicitly authorized the mother to move back to Town A with the child where the child’s residence is presumed to be as per articles 3142 and 80 C.C.Q.

At the hearing the father insisted on filing new exhibits as well as second sworn statement in answer to the detailed one filed by the mother.

The judge refused because the father had not requested prior authorization and because the exhibits did not add anything to the debate. [ 9 ] The father attacks this judgment on three grounds: [ 10 ] The judge erred in law in rejecting the production of the second sworn statement he wanted to file in response to the one filed by the mother; [ 11 ] The judge erred in law by denying the production of his exhibits L1 to L8, with exception of those that were minutes of an official record of the Court; [ 12 ] The judge erred in fact in deciding that the father tacitly consented to the child’s permanent move to British Columbia.

[ 13 ] We are of the view that none of these arguments is well founded. [ 14 ] The motion to dismiss for lack of jurisdiction was filed by the mother and supported by a general sworn statement. The father answered this sworn statement with one of his own.

As per art. 414 C.C.P. it was then open to the mother, who was the one presenting the motion, to answer the father’s sworn statement, but any other sworn statement required the authorization of the Court before being filed. [ 15 ] The judge’s decision in that respect is a discretionary one and the Court will intervene only if such discretion is exercised unreasonably.

In the case at bar, the father fails to demonstrate that this was the case. [ 16 ] Furthermore, we are of the view that the facts alleged in this second sworn statement would not have led the judge to conclude differently as to the child’s residence. [ 17 ] The same considerations apply to his refusal to authorize the filing of the additional exhibits. [ 18 ] Although the father qualifies the main issue as a question of law, namely whether the judge erred in concluding that he implicitly authorized the mother to move back to Town A with the child, he is actually alleging that the judge misapplied the law to the facts.

In that context, he must show that the judge committed a manifest and dominant error, which he has failed to do. FOR THESE REASONS, THE COURT: [ 19 ] DISMISSES the appeal; [ 20 ] THE WHOLE , without legal costs given the nature of the dispute. MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. PETER KALICHMAN, J.A.