2023 QCCA 1214, 2023 QCCA 1214

Droit de la famille — 231618 2023 QCCA 1214 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-030196-224 (500-04-060805-133) DATE: September 20, 2023 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. LORI RENÉE WEITZMAN, J.A. G. D. APPELLANT – Applicant v. J. A.

RESPONDENT – Defendant and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded Party JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P. ”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a matter regarding authorization for care to be identified (art. 16 C.C.P .). [ 1 ] This is an appeal from a judgment of the Superior Court, district of Montreal (the Honourable Aline U.K.

Quach) rendered orally on August 2, 2022, granting an application by the respondent (the Father) and attesting that the parties’ minor children have been wrongfully retained by the appellant (the Mother) in Belgium, according to articles 2 and 3 of the Act respecting the civil aspects of international and interprovincial child abduction (the Act ), and articles 3 and 5 of The Hague Convention on the Civil Aspects of International Child Abduction . *** [ 2 ] The parties are the parents of two minor children, both almost 12 years old, born in Quebec.

They were all living in Quebec until June 2019, when the Mother and the children relocated to Belgium, pursuant to an agreement, which was homologated by the Superior Court on April 8, 2019 (the Agreement ).

The Agreement provides that: ▪ The children will relocate to Belgium with the Mother who will have full custody (clause 6); ▪ The parties mutually recognize their parental competencies, and both continue to exercise parental authority over the children and will consult with each other prior to making a decision regarding the children’s place of residence (clause 2); ▪ The parties agree that they will re-evaluate the Agreement one year after the children relocate to Belgium (clause 29); ▪ The parties agree to go to mediation to resolve any dispute that should arise regarding any aspect of the Agreement (clause 27). [ 3 ] One year after their move to Belgium, in June 2020, the Father was not satisfied with the Agreement and in particular with his limited access to the children.

The parties’ attempts at mediation in September and October 2020 were unsuccessful. [ 4 ] In March 2021, the Father sent a letter of demand to the Mother in order to enforce his visitation rights. He did not request the return of the children to Canada. However, in April 2021, he brought an application before the Superior Court of Quebec to modify custody and child support and to order that the children be repatriated to Canada.

[ 5 ] In May 2021, the Mother brought an application for declinatory exception, seeking to have the Superior Court declare that it did not have jurisdiction to hear and decide the Father’s application. Her application was dismissed (by the Honourable Gary D.D. Morrison) and this Court confirmed that decision on March 8, 2022, ( 2022 QCCA 362 ) holding that the Agreement, as homologated by the Superior Court, fixed the children’s domicile within the meaning of

article 80 C.C.Q. in Quebec. [ 6 ] Although the respondent’s re-modified application, dated July 18, 2022, seeks several orders of safeguard and of final judgment regarding custody of the children, the judgment under appeal deals with only one of the conclusions sought, that is the attestation of wrongful retention of the children by the Mother. *** [ 7 ] The judge granted the Father’s application for the attestation he sought. She found that the children’s habitual residence was in Quebec, where they had lived until their one-year relocation to Belgium in June 2019.

She also found that as of June 2020, the Father withdrew his consent for them to remain in Belgium and thus the children were wrongfully retained there. *** [ 8 ] The Court cannot examine the merits of this matter without first considering the appellant's right of appeal. The judgment appealed from deals with one of several orders sought in Superior Court as part of the parties' child custody proceedings and is therefore a “judgment in the course of a proceeding”, which requires a judge's leave to appeal in accordance with

article 31 C.C.P . Because no such permission was granted, the appeal was improperly initiated. The Court drew this to the parties’ attention prior to the hearing. [ 9 ] At the hearing, the appellant presented a nunc pro tunc motion for permission to appeal after the delays, pursuant to art. 31 (2) C.C.P . Although the appellant filed a notice of appeal within the strict time limit of 30 days (art. 360 and 363 C.C.P. ) and the respondent did not invoke the irregularity, [1] - the two first conditions to obtain such permission - the appellant must nevertheless establish that:

i) The judgment under appeal determines part of the dispute or causes her irremediable prejudice; ii) the proposed appeal is in the interests of justice in that it raises a question deserving the Court's attention in view of its nature and importance; and iii) the proposed appeal must have a reasonable chance of success and comply with the principle of proportionality of the proceedings. [2] [ 10 ] On the first criterion, the judgment determines part of the dispute by deciding that the Mother has wrongfully retained the children within the meaning of the Act .

On the second criterion, the attestation of wrongful retention by the Mother is an important question, particularly in these circumstances, where the Father acquiesced to relocating the children to Belgium for one year, without any provision for return after the year, and in the absence of any court order or agreement between the parties stipulating their return at the end of that period. [ 11 ] Nevertheless, the Mother does not satisfy the third criterion because the appeal presents no reasonable chance of success.

In light of the specific questions of fact and law she raises, the Court is unable to properly analyse the judge’s findings without the full record of the evidence before the Superior Court, which she has not produced. Most importantly, the Court was not provided with all the evidence presented in support of the children’s place of habitual residence [3] , which is essential to determining whether the Act applies: 5. This Act shall apply to any child under sixteen years of age who was habitually resident in Quebec or in a designated State immediately before any breach of custody or access rights .

In all cases it shall cease to apply when the child attains sixteen years of age. 5. La présente loi s’applique à tout enfant de moins de 16 ans qui avait sa résidence habituelle au Québec ou dans un État désigné immédiatement avant l’atteinte aux droits de garde ou de visite. Dans tous les cas, elle cesse de s’appliquer lorsque l’enfant atteint l’âge de 16 ans. [Emphasis added] [ 12 ] For the Act to apply, the children must have had their habitual residence in Quebec immediately before the alleged wrongful retention. The question of the children’s habitual residence is thus decisive.

The Mother submits, among other things, that the trial judge erred in law by misapplying the habitual residence test [4] and in finding that the children had their habitual residence in Quebec as of June 2020. Even if the Court were to conclude that the judge erred in law by misapplying the test, without all of the evidence regarding the

children’s habitual residence, the appeal has no reasonable chance of succeeding. FOR THESE REASONS, THE COURT: [ 13 ] DECLARES the appeal improperly initiated; [ 14 ] DISMISSES the motion to appeal nunc pro tunc ; [ 15 ] WITHOUT COSTS , given the nature of the matter. MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. LORI RENÉE WEITZMAN, J.A. Mtre Daniel Romano GOLDWATER DUBÉ For the Appellant Mtre Amanda Gibeault For the Respondent Mtre Gabriel Lavigne BERNARD, ROY (JUSTICE-QUÉBEC) For the Impleaded Party Date of hearing: September 13, 2023