DS vs VW (Canada 1996)
[1996] 2 S.C.R.108
15 International Abduction [FRG 1996]
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W. (V.) v. S. (D.)
[1996] 2 S.C.R.108
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D.S. Appellant
v.
V.W. Respondent
and
J.S. Mis en cause
and
Rodrigue Blais Mis en cause
Indexed as: W. (V.) v. S. (D.)
File No.: 23765.
1995 December 6; 1996 May 2.
Present: Lamer C.J. and LaForest, L’Heureux-Dub‚, Sopinka,
Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
001 Family law — Wrongful removal or retention of child
— Custody of child granted to father and access rights
granted to mother by American court — Child taken from
United States to Quebec by father while mother’s motions to
modify and enforce her access rights pending in American
court — Interim custody of child granted to mother by
American court after child’s removal to Quebec — Father
filing motion for child custody in Quebec — Mother
countering with motion for child’s return to United States
under Quebec statute on international child abduction —
Whether statute applicable to circumstances of case —
Concept of custody under Quebec statute and convention on
international child abduction — Distinction between rights
of custody and rights of access — Act respecting the civil
aspects of international and interprovincial child
abduction, R.S.Q., c.A-23.01, ss.2, 3, 4 — Convention on
the Civil Aspects of International Child Abduction, Can.
T.S. 1983 No. 35, Arts.3, 5.
002 Family law — Rights of custody — Interests of child
— Custody of child granted to father and access rights
granted to mother by American court — Child taken from
United States to Quebec by father — Interim custody of
child later granted to mother by American court — Father
filing motion for child custody in Quebec — Mother
countering with motion for child’s return to United States
— Whether Superior Court had jurisdiction to rule on
custody of child under Quebec civil law and to order child’s
return to United States — Civil Code of Lower Canada,
art.30 — Code of Civil Procedure, R.S.Q., c.C-25, art.46.
003 The parties were divorced in 1988 and a Maryland
court granted custody of the child to the father and
supervised access to the mother. In November 1989, the
father moved to Michigan with the child. The mother then
filed various motions in Maryland to modify and enforce her
access rights. The parties agreed on a schedule of
supervised visits and the father agreed to have the child
undergo a psychiatric evaluation in Michigan to be filed as
evidence at the hearing into the mother’s motions. The
agreement was ratified by a Maryland court. In the interim,
in February1990, the father moved to Quebec with the child
without consulting or notifying the mother. On May 8, 1990,
after the mother filed a new petition, a Maryland court
awarded custody of the child to her ex parte, “pending any
further hearings on the issue of custody and visitation at
the request of either party”. One year later, the father
filed a motion in the Quebec Superior Court for custody of
the child and the mother countered by filing a motion in
which she applied for the child’s return to the United
States under An Act respecting the civil aspects of
international and interprovincial child abduction (the
“Act”). The parties recognized that the Act, which gives
effect to the Convention on the Civil Aspects of
International Child Abduction (the “Convention”), was
applicable to the proceedings. The Superior Court dismissed
the father’s motion and ordered the child’s return to the
United States. The Court of Appeal confirmed the order for
return made under the Act. This appeal is to determine
whether the Superior Court and the Court of Appeal erred in
applying the Act to the circumstances of this case.
004 Held: The appeal should be dismissed.
005 Per Lamer C.J. and Sopinka, Cory, McLachlin,
Iacobucci and Major JJ.: The reasons of L’Heureux-Dub‚J.
are agreed with, subject to McLachlin J.’s comments in
Goertz on rights and obligations of custodial parents.
006 Per La Forest, L’Heureux-Dub‚ and GonthierJJ.: Even
though the parties admitted that the Act was applicable to
the proceedings, the courts are not bound by that admission.
The parties cannot attribute jurisdiction to a court that it
does not have. In this case, the determination of whether
the Act is applicable depends on the definition of the
concept of custody under the Convention and the Act.
007 The Convention is designed to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the state of their habitual
residence, as well as to secure protection for rights of
access. The mandatory return procedure provided for in the
Convention is set in motion only where a child has been
removed or retained in breach of rights of custody — and
not rights of access only. The administrative organizations
of the Central Authorities designated by the states parties
to the Convention are responsible for securing respect for
rights of access. Thus, the Convention makes a clear
distinction between rights of access, which “include the
right to take a child for a limited period of time to a
place other than the child’s habitual residence”, and rights
of custody, which are defined as “includ[ing] rights
relating to the care of the person of the child and, in
particular, the right to determine the child’s place of
residence”. The primary object of the Convention is the
enforcement of custody rights. Although what the Convention
means by “rights of custody” must be determined
independently of the domestic law of the jurisdictions to
which it applies, the question of who holds the “rights
relating to the care of the person of the child” or the
“right to determine the child’s place of residence” within
the meaning of the Convention is in principle determined in
accordance with the law of the state of the child’s habitual
place of residence.
008 Although it does not adopt the integral wording of
the Convention, the sole purpose of the Act is to give
effect thereto. The interdependence of the Convention and
the Act is recognized both in the preamble to the Act, which
states that “Qu‚bec subscribes to the principles and rules
set forth in the Convention”, and in s.1 thereof, which
states the common objects of the Act and the Convention.
Furthermore, the Act adopts verbatim the Convention’s
definitions of rights of custody and rights of access. This
interdependence suggests an interpretation of ss.3 and 4 of
the Act that gives full effect to the object of the
Convention while taking the guidelines set out in Thomson
into account.
009 Section 3 of the Act, which is based on the wording
of the Convention, triggers the application of the Act and
its mandatory return procedure only where a child is removed
or retained in breach of rights of custody within the
meaning of the Act, as opposed to rights of access only.
Although an interim custody order combined with an order
restricting the removal of a child might temporarily deprive
the person awarded custody of the right to determine the
child’s place of residence by making any removal of the
child wrongful within the meaning of s.3 of the Act, aside
from this exception, the concept of custody under the Act
must be given a large and liberal interpretation. A narrow
reading would contradict the very object of the Act, namely
to protect rights of custody and the exercise of the
attributes thereof, including the choice of the child’s
place of residence. Since the foundation of the Act, like
that of the Convention, is the rapidity of the mandatory
return process and the principle that the merits of issues
related to the custody of children who have been wrongfully
removed or retained are to be determined by the courts of
their habitual place of residence, the very philosophy of
the Act militates against bringing the unsettled factual
basis of a custody order into play at this stage of the
exercise.
010 As for s.4 of the Act, which represents an original
initiative by the Quebec legislature, it merely expands the
concept of “wrongful removal” under s.3 of the Act; it does
not broaden the definition of rights of custody. Under s.4,
a child’s removal or retention is wrongful if it occurs when
proceedings for determining or modifying rights of custody
have been introduced in Quebec or in the designated state
where the child was habitually resident and if the removal
or retention might prevent the execution of the decision to
be rendered. By taking account of the fact that custody
rights obviously become unsettled when the right to apply
for a modification thereof has been exercised, s.4 ensures
that the execution of the custody order that is eventually
made will not be frustrated by the untimely removal of the
child.
011 Finally, when a court finds that there has been a
wrongful removal within the meaning of s.3 or 4 of the Act,
it must automatically order the return of the child unless
the person who opposes that return can prove that the
situation falls within one of the exceptions provided for in
s.20 of the Act, such as the settlement of the child in his
or her new environment. Those exceptions must be interpreted
narrowly.
012 The Superior Court and the Court of Appeal erred in
applying the Act to the circumstances of this case. The
child’s removal from Michigan to Quebec was not wrongful
within the meaning of s.3 of the Act, since the father had
custody of her within the meaning of the Act at the time.
Nor can the situation be described as a “wrongful retention”
within the meaning of that section. The ex parte custody
order obtained by the mother in the United States following
the child’s removal did not confer custody rights on her
that made the child’s retention in Quebec wrongful. Section
4 does not apply either, since the proceedings pending when
the child was removed related solely to the mother’s access
rights and not the father’s custody rights.
013 However, since the child was domiciled or resided
with her father in Quebec, art. 70 C.C.P.and Quebec conflict
of jurisdictions rules gave the Superior Court jurisdiction
to hear and determine the father’s motion for custody of the
child. The only criterion that should guide the court is the
child’s best interests under art. 30 C.C.L.C. It is of
little consequence that the trial judge ruled on the
father’s motion under the Act rather than the Civil Code of
Qu‚bec, since both of these systems have adopted a broad
concept of custody — which is distinct from access rights
and includes the choice of the child’s place of residence —
and the interests of the child are the common standard. In
this case, although the only issue at trial was whether the
child was settled in her new environment within the meaning
of the Act, there is no doubt, based on the judgment and the
trial judge’s exhaustive analysis of the evidence, that he
not only took account of the child’s interests but also
determined that it was in her interests to return to her
mother. Moreover, in exercising his jurisdiction over
custody the trial judge had, under art. 46 C.C.P., the power
to order the child’s return to the United States after
finding that it was in her interests to make such an order.
In view of the deference that must be shown to the findings
of fact by the trial judge, who heard all the interested
parties and lengthy expert evidence, his decision must be
affirmed since he did not make any error that would warrant
intervention by a court of appeal.
Cases Cited
By McLachlinJ.
Referred to: Gordon v. Goertz, [1996] 1 S.C.R. 27.
By L’Heureux-Dub‚J.
Applied: Thomson v. Thomson, [1994] 3 S.C.R. 551; referred
to: Messier v. Palomba, [1992] R.D.J. 548; quipements
Lefco Inc. v. Roche Lt‚e, [1993] R.D.J. 234; Hamel v. Cie
Trust Royal, [1990] R.J.Q. 2178; Montana v. D‚veloppements
du Saguenay Lt‚e, [1977] 1 S.C.R. 32; Canadian Broadcasting
Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618;
Droit de la famille — 323, [1988] R.J.Q. 1542; E.(Mrs.) v.
Eve, [1986] 2 S.C.R. 388; Dussault v. Ladouceur (1987), 14
R.F.L. (3d) 185; P.(D.) v. S. (C.), [1993] 4 S.C.R. 141; C.
(G.) v. V.-F. (T.), [1987] 2 S.C.R. 244; Droit de la famille
— 120, [1984] C.A. 101; Droit de la famille — 7, [1984]
C.A. 350; Droit de la famille — 190, [1985] C.A. 201; Droit
de la famille — 1826, [1993] R.J.Q. 1728, aff’d [1995] 4
S.C.R. 592 (sub nom. P.(M.) v. L.B. (G.)); King v. Low,
[1985] 1 S.C.R. 87.
Statutes and Regulations Cited
Act respecting the civil aspects of international and
interprovincial child abduction, R.S.Q., c. A-23.01,
preamble, ss.1, 2, 3, 4, 19, 20, 25, 27, 28, 30, 31, 32.
Civil Code of Lower Canada, arts.30 [am. 1980, c.39, s.3],
79, 80, 81, 83 [repl. idem, s.12; am. 1989, c.54, s.79].
Civil Code of Qu‚bec [en. S.Q. 1980, c.39, s.1], arts.569,
570, 647, 650, 653.
Civil Code of Qu‚bec, S.Q. 1991, c.64, arts.33, 75, 76, 80,
514, 599, 602, 604, 605, 3142.
Code of Civil Procedure, R.S.Q., c.C-25, arts.46 [am. 1992,
c.57, s.422], 70 [repl. 1982, c.17, s.8; 1989, c.54, s.131;
am. 1992, c. 57, s.194], 164, 523 [am. 1985, c. 29, s.11;
am. 1992, c.57, s.422], 861.
Convention on the Civil Aspects of International Child
Abduction, Can. T.S. 1983 No.35, preamble, Arts. 1, 3, 5,
11, 12, 13, 21.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3,
Art. 3.
Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), ss.16(8), 17(1),
(5).
Authors Cited
Anton,A.E. “The Hague Convention on International Child
Abduction” (1981), 30 Int’l & Comp.L.Q. 537.
Black, Vaughan, and Christopher Jones. Case Comment on
Thomson v. Thomson (1994), 12 C.F.L.Q. 321.
Castel,J.-G. Droit international priv‚ qu‚b‚cois. Toronto:
Butterworths, 1980.
Castelli, MireilleD. Le nouveau droit de la famille au
Qu‚bec: projet de Code civil du Qu‚bec et Loi sur le
divorce. Sainte-Foy, Qu‚.: Presses de l’Universit‚ Laval,
1993.
Ducharme, L‚o. Pr‚cis de la preuve, 4e ‚d. Montr‚al:
Wilson & Lafleur, 1993.
Eekelaar, JohnM. “International Child Abduction by Parents”
(1982), 32 U.T.L.J. 281.
Farquhar, KeithB. “The Hague Convention on International
Child Abduction Comes to Canada” (1983), 4 Can. J. Fam. L.
5.
Groffier, Ethel. Pr‚cis de droit international priv‚
qu‚b‚cois, 4e ‚d. Cowansville, Qu‚.: Yvon Blais, 1990.
Groffier-Atala, Ethel. “De la puissance paternelle …
l’autorit‚ parentale” (1977), 8 R.G.D. 223.
Hague Conference on Private International Law. Report of the
Second Special Commission Meeting to Review the Operation of
the Hague Convention on the Civil Aspects of International
Child Abduction. The Hague, 1993.
Kouri, Robert P. “L’arrˆt Eve et le droit qu‚b‚cois” (1987),
18 R.G.D. 643.
Lesage, Robert. “Garde ou autorit‚ parentale; l’emprise de
la s‚mantique” (1988), 91 R. du N. 46.
L’Heureux-Dub‚, Claire. “La garde conjointe, concept
acceptable ou non?” (1979), 39 R. du B. 835.
Mayrand, Albert. “La garde conjointe, r‚‚quilibrage de
l’autorit‚ parentale” (1988), 67 Can. Bar Rev. 193.
McLeod, JamesG. Case Comment on Thomson v. Thomson (1994), 6
R.F.L. (4th) 406.
Mignault, Pierre Basile. Le droit civil canadien, t.2.
Montr‚al: Whiteford & Th‚oret, 1896.
Morin, Michel. “La comp‚tence parens patriae et le droit
priv‚ qu‚b‚cois: un emprunt inutile, un affront …
l’histoire” (1990), 50 R. du B. 827.
Ouellette, Monique. Droit de la famille, 3e ‚d. Montr‚al:
Th‚mis, 1995.
Payne, JulienD. Payne on Divorce, 3rd ed. Scarborough, Ont.:
Carswell, 1993.
Pineau, Jean. La famille — Droit applicable au lendemain de
la ®Loi 89¯. Montr‚al: Presses de l’Universit‚ de
Montr‚al, 1983.
Schuz, Rhona. “The Hague Child Abduction Convention:
Family Law and Private International Law” (1995), 44 Int’l &
Comp.L.Q. 771.
Silberman, Linda. “Hague Convention on International Child
Abduction: A Brief Overview and Case Law Analysis” (1994),
28 Fam. L.Q. 9.
Sopinka, John, and MarkA. Gelowitz. The Conduct of an
Appeal. Toronto: Butterworths, 1993.
APPEAL from a judgment of the Quebec Court of Appeal, [1993]
R.J.Q. 2076 (sub nom. Droit de la famille — 1763), 58
Q.A.C. 168, affirming a decision of the Superior Court,
[1993] R.D.F. 111.
Appeal dismissed.
Ghislain Richer, Julie Lessard and Marc Baillargeon, for the
appellant.
Roseline Alric, for the respondent.
Guy Lecompte, for the mis en cause Blais.
The judgment of Lamer C.J. and McLachlin, Iacobucci and
Major JJ. was delivered by
1 MCLACHLIN J. — I agree with L’Heureux-Dub‚ J.,
subject to my comments in Gordon v. Goertz, [1996] 1 S.C.R.
27, on the rights and obligations of custodial parents.
The reasons of La Forest, L’Heureux-Dub‚ and Gonthier JJ.
were delivered by
2 L’HEUREUX-DUBJ. — This appeal concerns the Hague
Convention on the Civil Aspects of International Child
Abduction, Can. T.S. 1983 No.35 (the “Convention”), as
implemented in Quebec by An Act respecting the civil aspects
of international and interprovincial child abduction,
R.S.Q., c. A-23.01 (the “Act”). The specific question is
whether the Act is applicable to the circumstances of this
case. If so, did the Quebec Court of Appeal, like the
Superior Court, err in confirming the order made under the
Act to return the child to the United States? If not, the
question that arises is whether the Superior Court had
jurisdiction to dispose of the motion for custody of the
child. The concept of custody under the Convention and the
Act is at the heart of this case. In the case at bar, it was
to the child’s father, the appellant, that the courts of the
state of Maryland granted custody, while the respondent
mother held rights of access.
I. Facts
3 The turbulent history of the relations between the
parties in respect of their daughter first requires a brief
review of the facts.
4 The child of the parties was born on December27, 1982
in Maryland, where the family was living at the time. In
November 1986, the appellant left the family home, leaving
the child with the respondent. The respondent prevented him
from seeing the child until December 16, 1986, at which date
the parties agreed that the child was to stay with the
appellant until January 2, 1987. The following week, the
respondent again refused to let the appellant see the child.
The day after this incident, the appellant went to get the
child as she was leaving school and refused to return her to
the respondent.
5 In February 1987, the appellant filed for a divorce.
On February 10, 1987, the Maryland Circuit Court granted
temporary custody of the child to the appellant and
recommended that the parties undergo a psychological
evaluation. On September 23, 1987, Judge Fischer of the
Circuit Court granted the parties joint custody of the
child, while granting physical custody to the respondent. In
February 1988, the appellant filed a petition in which he
alleged that the respondent had committed acts of Satanism
and sexual abuse against the child. On February 10, 1988,
Judge Sybert of the Circuit Court granted temporary custody
of the child to the appellant and denied the respondent
access. On April25, 1988, the respondent was granted
supervised access. In a divorce judgment dated September29,
1988, Judge Fischer granted custody of the child to the
appellant and rights of supervised access to the respondent,
which were to be re-evaluated in June 1989 after the
respondent had undergone treatment. Although Judge Fischer
rejected the allegations of sexual abuse, he explained that
he was granting custody to the appellant because, if the
child was disturbed, the respondent was the primary cause.
The Court of Special Appeals of Maryland affirmed that
judgment on November 8, 1989.
6 In November 1989, the appellant moved to Michigan
with the child. On December15, 1989, the respondent filed
motions in Maryland for contempt of court, to enforce her
access rights and to modify and increase access. The
specific purpose of these motions was to reorganize the
schedule of visits in view of the child’s removal and to
obtain increased rights of unsupervised access. Under an
agreement entered into by the parties on February 1, 1990, a
schedule of supervised visits was drawn up and the appellant
agreed to have the child undergo a psychiatric evaluation in
Michigan to be filed as evidence at the hearing into the
respondent’s motions. On March 13, 1990, the Circuit Court
ratified this agreement by way of an order. In the interim,
on February 13, 1990, the appellant moved to Quebec with the
child without consulting or notifying the respondent.
7 On April 6, 1990, following a suggestion by the
court, the respondent filed a petition for contempt of court
and for a change of custody. The appellant did not attend at
the hearing of that petition on April 16, 1990. On May 8,
1990, Judge Dudley of the Circuit Court found the appellant
guilty of contempt and awarded custody of the child to the
respondent “pendente lite, pending any further hearings on
the issue of custody and visitation at the request of either
party”. That judgment was affirmed by the Court of Special
Appeals on May 14, 1991.
8 In the interim, on May 6, 1991, the appellant filed a
motion in the Superior Court of Quebec for custody of the
child. The respondent countered by filing a motion in which
she applied for the return of the child under the Act. She
moved temporarily to Sherbrooke, where the child was
residing with the appellant and his sister. Interim custody
of the child was granted to the appellant’s sister under an
agreement between the parties endorsed on August 30, 1991 by
Savoie J. of the Superior Court. The parties also recognized
under that agreement that the Act was applicable to the
case. In June and December 1992, Bellavance J. of the
Superior Court made two orders that laid down the conditions
of a supervised access program, the purpose of which was to
promote the gradual resumption of contact between the
respondent and the child.
9 On January 8, 1993, Bellavance J. dismissed the
appellant’s motion and ordered the child’s return to the
United States: [1993] R.D.F. 111. Due to the danger of the
appellant’s fleeing with the child once again, the judge
ordered that she be placed in the custody of the Youth
Protection Agency until the expiration of the appeal period.
The appellant appealed the judgment, and Proulx J.A. of the
Quebec Court of Appeal made an interim order that the child
be placed with a foster family and that contact between the
parties and the child continue to be supervised by the Youth
Protection Agency until the hearing into the merits of the
appeal. On August2, 1993, the Court of Appeal dismissed the
appellant’s appeal ([1993] R.J.Q. 2076, 58 Q.A.C. 168) and
the respondent returned to Maryland with the child, who has
apparently been there ever since.
II. Legislation
The Convention:
[PREAMBLE]
The States signatory to the present Convention,
Firmly convinced that the interests of children are of
paramount importance in matters relating to their custody,
Desiring to protect children internationally from the
harmful effects of their wrongful removal or retention and
to establish procedures to ensure their prompt return to the
State of their habitual residence, as well as to secure
protection for rights of access,
Have resolved to conclude a Convention to this effect, and
have agreed upon the following provisions:
ARTICLE 1
The objects of the present Convention are:
(a)to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in
the other Contracting States.
ARTICLE 3
The removal or the retention of a child is to be considered
wrongful where:
(a)it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or
retention; and
(b)at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph(a) above,
may arise in particular by operation of law or by reason of
a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State.
ARTICLE 5
For the purposes of this Convention:
(a)”rights of custody” shall include rights relating to the
care of the person of the child and, in particular, the
right to determine the child’s place of residence;
(b)”rights of access” shall include the right to take a
child for a limited period of time to a place other than the
child’s habitual residence.
ARTICLE 11
The judicial or administrative authorities of Contracting
States shall act expeditiously in proceedings for the return
of children.
If the judicial or administrative authority concerned has
not reached a decision within six weeks from the date of
commencement of the proceedings, the applicant or the
Central Authority of the requested State, on its own
initiative or if asked by the Central Authority of the
requesting State, shall have the right to request a
statement of the reasons for the delay. If a reply is
received by the Central Authority of the requested State,
that Authority shall transmit the reply to the Central
Authority of the requesting State, or to the applicant, as
the case may be.
ARTICLE 12
Where a child has been wrongfully removed or retained in
terms of Article3 and, at the date of the commencement of
the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a
period of less than one year has elapsed from the date of
the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
…
ARTICLE 13
Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State
is not bound to order the return of the child if the person,
institution or other body which opposes its return
establishes that:
(a)the person, institution or other body having the care of
the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention; or
(b)there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise
place the child in an intolerable situation.
The judicial or administrative authority may also refuse to
order the return of the child if it finds that the child
objects to being returned and has attained an age and degree
of maturity at which it is appropriate to take account of
its views.
…
ARTICLE 21
An application to make arrangements for organizing or
securing the effective exercise of rights of access may be
presented to the Central Authorities of the Contracting
States in the same way as an application for the return of a
child.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article7 to promote the
peaceful enjoyment of access rights and the fulfilment of
any conditions to which the exercise of those rights may be
subject. The Central Authorities shall take steps to remove,
as far as possible, all obstacles to the exercise of such
rights.
The Central Authorities, either directly or through
intermediaries, may initiate or assist in the institution of
proceedings with a view to organizing or protecting these
rights and securing respect for the conditions to which the
exercise of these rights may be subject.
The Act:
[PREAMBLE]
WHEREAS the Convention on the Civil Aspects of International
Child Abduction signed at The Hague on 25October 1980 aims
to protect children internationally from the harmful effects
of their wrongful removal or retention;
Whereas the Convention establishes procedures to ensure the
prompt return of children to the State of their habitual
residence and to secure protection for rights of access;
Whereas Qu‚bec subscribes to the principles and rules set
forth in the Convention and it is expedient to apply them to
the largest possible number of cases;
THE PARLIAMENT OF QUBEC ENACTS AS FOLLOWS:
1. The object of this Act is to secure the prompt return
to the place of their habitual residence of children removed
to or retained in Qu‚bec or a designated State, as the case
may be, in breach of custody rights.
A further object of this Act is to ensure that the rights of
custody and access under the law of a designated State are
effectively respected in Qu‚bec and the rights of custody
and access under the law of Qu‚bec are effectively respected
in a designated State.
2. For the purposes of this Act,
(1) “rights of custody” shall include rights relating to
the care of the person of the child and, in particular, the
right to determine the child’s place of residence;
(2) “rights of access” shall include the right to take a
child for a limited period of time to a place other than the
child’s habitual residence;
. . .
3. The removal or the retention of a child is to be
considered wrongful, within the meaning of this Act, where
it is in breach of rights of custody attributed to one or
several persons or bodies under the law of Qu‚bec or of the
designated State in which the child was habitually resident
immediately before the removal or retention and where, at
the time of removal or retention, those rights were actually
exercised by one or several persons or bodies or would have
been so exercised but for the removal or retention.
The rights of custody mentioned in the first paragraph may
arise in particular by operation of law, or by reason of a
judicial or administrative decision, or by reason of an
agreement having legal effect under the law of Qu‚bec or of
the designated State.
4. In addition to the cases contemplated in section 3,
the removal or the retention of a child is considered
wrongful if it occurs when proceedings for determining or
modifying the rights of custody have been introduced in
Qu‚bec or in the designated State where the child was
habitually resident and the removal or retention might
prevent the execution of the decision to be rendered.
20. Where a child who is in Qu‚bec has been wrongfully
removed or retained and where, at the time of commencement
of the proceedings before the Superior Court, a period of
less than one year has elapsed from the date of the removal
or retention, the Superior Court shall order the return of
the child forthwith.
The Superior Court, even where the proceedings have been
commenced after the expiration of the period of one year,
shall also order the return of the child, unless it is
demonstrated that the child is now settled in his or her new
environment.
25. The Superior Court, after having been notified that a
child has been wrongfully removed or retained in Qu‚bec,
shall not decide on the custody of the child if the
conditions set out in this Act for the return of the child
may be fulfilled or if an application for his or her return
may be made within a reasonable time.
28. In ascertaining whether there has been a wrongful
removal or retention, the Superior Court may take notice
directly of the law of, and of judicial or administrative
decisions, formally recognized or not in the designated
State in which the child is habitually resident, without
recourse to the specific procedures for the proof of that
law or for the recognition of foreign decisions which would
otherwise be applicable.
30. A decision under this Act concerning the return of a
child shall not be taken to be a determination on the merits
of any custody issue.
31. An application to make arrangements for organizing or
securing the effective exercise of rights of access may be
presented to the Minister of Justice or to the Central
Authority of a designated State in the same way as an
application for the return of a child.
32. The Minister of Justice may initiate or assist in the
institution of proceedings with a view to organizing or
protecting access rights and securing respect for the
conditions to which the exercise of these rights may be
subject.
The Civil Code of Lower Canada, which was in force at the
time of the relevant facts (the corresponding articles of
the Civil Code of Qu‚bec, S.Q. 1991, c.64, appear in square
brackets):
30.[33] In every decision concerning a child, the child’s
interest and the respect of his rights must be the
determining factors.
Consideration may be given in particular to the child’s age,
sex, religion, language, character and family surroundings,
and the other circumstances in which he lives.
79.[75] The domicile of a person, for all civil purposes, is
at the place where he has his principal establishment.
80.[76] Change of domicile is effected by actual residence
in another place, coupled with the intention of the person
to make it the seat of his principal establishment.
81.[76] The proof of such intention results from the
declarations of the person and from the circumstances of the
case.
83.[80] . . .
A minor whose custody has been the subject of a judicial
decision is domiciled with the person who has custody of
him.
When no judicial decision has been rendered with respect to
custody and the minor’s father and mother have no common
domicile, the minor is domiciled with the parent with whom
he habitually resides.
The Civil Code of Qu‚bec (1980), with the new numbering
shown in square brackets:
569.[514] The court, in granting the divorce or
subsequently, decides as to the custody, maintenance and
education of the children, in their interest and in the
respect of their rights, taking into account the agreements
made between the spouses, where such is the case.
570.[605] Whether custody is entrusted to one of the spouses
or to a third person, the father and mother retain the right
of watching over the maintenance and education of the
children, and are obliged to contribute thereto in
proportion to their means.
647.[599] The father and mother have the rights and duties
of custody, supervision and education of their children.
. . .
650.[602] No unemancipated minor may leave the family home
without the consent of the person having parental authority.
653.[604] In the case of difficulties relating to the
exercise of parental authority, the person having parental
authority may refer the matter to the court, which will
decide in the interest of the child after fostering the
conciliation of the parties.
The Code of Civil Procedure, R.S.Q., c. C-25:
46. The courts and the judges have all the powers
necessary for the exercise of their jurisdiction. They may,
in the cases brought before them, even of their own motion,
pronounce orders or reprimands, suppress writings or declare
them libellous, and make such orders as are appropriate to
cover cases where no specific remedy is provided by law.
70. Applications in family cases are taken before the
court of the common domicile of the parties or, failing such
a domicile, the domicile of either of the parties.
. . .
164. Lack of jurisdiction by reason of the subject matter
may be raised at any stage of the case, and it may even be
declared by the court of its own motion. The court
adjudicates as to costs according to the circumstances.
523. The Court of Appeal may, if the ends of justice so
require, permit a party …, in exceptional circumstances,
to adduce, in such manner as it directs, indispensable new
evidence.
III. Judgments
Superior Court of Quebec, [1993] R.D.F. 111
10 Since the parties had not contested the applicability
of the Act to the case at bar, Bellavance J.’s reasons took
as their starting point the parties’ admission that the
removal of the child was wrongful within the meaning of the
Act. He first recognized that the case did not concern the
merits of the custody issue but rather whether the child was
settled in Quebec. Since the child had been in Quebec for a
period longer than one year, it was open to the appellant,
under s.20 of the Act, to oppose an automatic order of
return by demonstrating that the child was now settled in
her new environment. According to the trial judge, whether a
child is settled within the meaning of the Act does not
depend solely on external factors such as the child’s
ability to speak French, it is also necessary that he or she
not be exposed to psychological or physical harm by
remaining in Quebec.
11 In his view, the child had been unable to settle in
Quebec on account of her state of psychological alienation,
for which the conduct of the appellant, although sincere,
was largely responsible. The judge noted that the appellant
did nothing to correct the child’s obviously false
perceptions, in particular those relating to the
respondent’s supposed ability to fly and her alleged desire
to kill the child. Furthermore, because the judgments of the
Maryland courts and the expert testimony at the hearing did
not establish that the respondent had sexually abused the
child, the judge found that the respondent represented
neither a psychological nor a physical danger to the child.
He, accordingly, dismissed the appellant’s motion for
custody of the child and ordered that she be returned to the
United States.
Quebec Court of Appeal, [1993] R.J.Q. 2076 (Vallerand,
Brossard and Deschamps JJ.A.)
12 The Court of Appeal dealt with three main issues:
the application of ss.3 and 4 of the Act, the interpretation
of s.20 of the Act and its application to the facts of the
case.
13 Concerning the application of the Act, the court
unanimously held that the Act was applicable even though the
court was not bound by the parties’ admission on this point.
Since, on the one hand, the agreement of February 1, 1990
between the parties implicitly prohibited the removal of the
child should removal deprive the respondent of her rights of
access, and on the other hand, the appellant’s rights of
custody were rendered precarious by the fact that he moved
to Quebec, the court considered that the respondent held
rights of custody within the meaning of the Act which
entitled her to claim the return of the child under s.3 of
the Act. To reach this conclusion, the court relied on an
interpretation of the concept of custody that it described
as [TRANSLATION] “large”.
14 In concurring reasons, Brossard J.A. concluded that
s.4 of the Act was also applicable. In his view, since the
removal of a child is a ground for reviewing a custody
award, the motions pending in the Maryland courts when the
child was removed were “proceedings for … modifying the
rights of custody” of the appellant within the meaning of
s.4 of the Act. He also considered that the Maryland courts
had retained jurisdiction to rule on the custody of the
child and that the Act was applicable as a result of the
“interim” custody granted to the respondent in the May 8,
1990 judgment of the Maryland Circuit Court, which rendered
the retention of the child wrongful within the meaning of
s.3 of the Act.
15 On the merits of the case, namely the settlement of
the child, the court unanimously held that the trial judge
had not erred in interpreting s.20 of the Act and applying
it to the facts of the case. Its analysis of the evidence
confirmed the judge’s finding that the child suffered from
serious emotional deprivation. The court also found that
there was no danger of psychological trauma from the
immediate return of the child to the United States even
though one of the three expert witnesses disagreed in his
testimony (which the trial judge did not take into account);
its finding was based in particular on the fact that,
according to the order for return, the child was to be
placed in a neutral environment until the enforcement of the
judgment. The appellant’s appeal was accordingly dismissed.
IV. Analysis
16 The main issue is whether, as the Superior Court and
Court of Appeal held, the Act is applicable to the
circumstances of the instant case. The concept of custody
under the Convention and the Act is crucial to resolving
this issue.
17 At the outset, however, it is necessary to determine
the effect of the admission of the parties that the Act
applied as regards the jurisdiction of the Superior Court to
entertain the case. It is well settled that a court is not
bound by an admission of law, and this is especially true of
an admission as to its jurisdiction: the parties cannot
attribute jurisdiction to a court that it does not otherwise
have (L. Ducharme, Pr‚cis de la preuve (4th ed. 1993), at
p.210). In the case at bar, the Superior Court clearly would
not have had jurisdiction to hear and determine the case
under the Act if the Act were inapplicable. Similarly, it
could not, as s.25 of the Act provides, have ruled on the
merits of the custody of the child if the Act were
applicable. A court may of its own motion raise its own lack
of jurisdiction by reason of the subject matter at any stage
of the case, even on appeal (art.164 C.C.P.; Messier v.
Palomba, [1992] R.D.J. 548 (C.A.)). This is an exception to
the general rule that a new argument cannot be raised on
appeal, not even on a question of law, unless all the
evidence needed to determine it is already in the record
(quipements Lefco Inc. v. Roche Lt‚e, [1993] R.D.J. 234
(C.A.); Hamel v. Cie Trust Royal, [1990] R.J.Q. 2178 (C.A.);
to the same effect: J. Sopinka and M. A. Gelowitz, The
Conduct of an Appeal (1993), at p.54). As a result, the
Court of Appeal was right to begin by considering the issue
of whether the Act was applicable even though it had not
been raised at trial.
18 On this point, the respondent argued that the absence
at trial of specific evidence of the law of Maryland with
regard to the nature of the parties’ respective rights
barred the Court of Appeal from reviewing the issue of
whether the Act was applicable. Although no such evidence
was adduced, I am nevertheless of the view that there is
sufficient evidence in the record in order to decide the
question. Among the nine Maryland court judgments included
in the record, that of May 14, 1991 by the Court of Special
Appeals contains a discussion several pages long on the
principles of law to be applied in Maryland in respect of
the modification of a custody order after the custodial
parent has removed the child. Furthermore, the whole of the
proceedings instituted by the respondent in Maryland, which
are also included in the record, provide an invaluable
indication of the actual scope of the parties’ respective
rights.
19 Having said this, even assuming that the record is
incomplete, in my view this is not fatal in the
circumstances. Even if the foreign law is to be treated as a
fact which, in theory, must be proved, where there is no
such evidence courts will apply the law in force in Quebec
(E. Groffier, Pr‚cis de droit international priv‚ qu‚b‚cois
(4th ed. 1990), at pp.94-99; Thomson v. Thomson, [1994] 3
S.C.R. 551, at p.588 (per LaForestJ.)). Furthermore, it
should be noted that s.28 of the Act authorizes Quebec
courts, on an exceptional basis, to take judicial notice of
the content of the foreign law in ascertaining whether there
has been a wrongful removal or retention within the meaning
of the Act. In addition, even in the absence of evidence, it
would have been open to the Court of Appeal to use its power
under art. 523 C.C.P. to receive indispensable new evidence
in exceptional circumstances if the ends of justice so
required (Montana v. D‚veloppements du Saguenay Lt‚e, [1977]
1 S.C.R. 32, at p.38 (per Pigeon J.)). Thus, the application
of these rules would compensate for the absence of specific
evidence in the record respecting the law of Maryland on
this question.
20 This leads us to the issue of whether the Act is
applicable to the circumstances of the instant case. This
determination will depend on the definition of the concept
of custody under the Convention and the Act.
I
Concept of Custody under the Convention and the Act
1. The Convention
21 The fundamental objective of the Convention, as
stated in its preamble, is “to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual
residence, as well as to secure protection for rights of
access”. According to Articles 3 and 12 of the Convention,
the mandatory return procedure provided for in the
Convention is set in motion only where a child has been
removed or retained in breach of rights of custody. As for
rights of access, Article 21 provides that the
administrative organizations of the Central Authorities
designated by the states parties to the Convention are
responsible for securing respect therefor. For example, a
parent prevented from exercising his or her rights of access
due to the removal of a child, to Quebec or a designated
state within the meaning of the Act, has a remedy of
securing the organization or protection of those rights in
accordance with the procedure laid down in ss.31 and 32 of
the Act. In “The Hague Convention on International Child
Abduction” (1981), 30 Int’l & Comp. L.Q. 537, at p.555, A.
E. Anton explained the rationale for the difference in the
protection accorded to rights of custody and rights of
access as follows:
It was felt not only that mandatory rules in the fluid field
of access rights would be difficult to devise but, perhaps
more importantly, that the effective exercise of access
rights depends in the long run more upon the goodwill, or at
least the restraint, of the parties than upon the existence
of formal rules.
J. M. Eekelaar made a similar comment in “International
Child Abduction by Parents” (1982), 32 U.T.L.J. 281, at
p.315:
The reason for this is that disputes about access are
notoriously difficult to unravel (it might be alleged that
the absent parent was visiting very infrequently, or that
the children disliked the visits), and to order the return
of the children when such matters may well be in dispute is
to provide too drastic a remedy.
22 Thus, the Convention makes a clear distinction
between rights of access, which “include the right to take a
child for a limited period of time to a place other than the
child’s habitual residence”, and custody rights, which are
defined as “includ[ing] rights relating to the care of the
person of the child and, in particular, the right to
determine the child’s place of residence”. As noted by
Eekelaar, supra, at p.309, what the Convention means by
“rights of custody” must by determined independently of the
domestic law of the jurisdictions to which it applies:
States may define the term `custody’ in whatever way they
choose, but what is essential for determining their
obligations under the convention is the definition used in
the convention. This definition is open-ended in that it
specifies rights of custody as including rights relating to
the care of the person of the child and, in particular, the
right to determine the child’s place of residence (article
5). Such rights, by whatever name they might be called in a
state’s domestic legal system, are `rights of custody’ for
the purposes of the convention and are protected by it.
[Emphasis added.]
As a result:
The key concepts which determine the scope of the Convention
are not dependent for their meaning on any single legal
system. Thus the expression “rights of custody”, for
example, does not coincide with any particular concept of
custody in a domestic law, but draws its meaning from the
definitions, structure and purposes of the Convention.
(Hague Conference on Private International Law, Report of
the Second Special Commission Meeting to Review the
Operation of the Hague Convention on the Civil Aspects of
International Child Abduction (1993), at p.16, quoted by V.
Black and C. Jones, Case comment on Thomson v. Thomson
(1994), 12 C.F.L.Q. 321, at p.327.)
23 However, although the Convention adopts an original
definition of rights of custody, the question of who holds
the “rights relating to the care of the person of the child”
or the “right to determine the child’s place of residence”
within the meaning of the Convention is in principle
determined in accordance with the law of the state of the
child’s habitual place of residence (Black and Jones, supra,
at p. 331; L. Silberman, “Hague Convention on International
Child Abduction: A Brief Overview and Case Law Analysis”
(1994), 28 Fam. L.Q. 9, at p.18).
24 The Convention was analysed in detail in Thomson, in
which its interpretation and application were raised in this
Court for the first time. Since the decision of the Court of
Appeal in the case at bar preceded that judgment, it is, I
believe, appropriate to briefly recall its main holding.
2. Thomson
25 In Thomson, the child was removed from Scotland to
Canada by his mother, who had interim custody pursuant to an
order containing a prohibition against the child being taken
out of Scotland. When the mother applied for custody in
Manitoba, the father applied for the return of the child to
Scotland under the Convention, as introduced into the law of
Manitoba by means of the Child Custody Enforcement Act,
R.S.M. 1987, c. C360. The Court was required to rule on,
inter alia, the nature of the rights of custody provided for
in the Convention, the effect of an order prohibiting the
child’s removal that is included in an interim custody
order, and the interrelationship between the Convention and
the Manitoba legislation.
26 The Court clearly established that “the primary
object of the Convention is the enforcement of custody
rights” (emphasis in original) and as a consequence that the
mandatory return procedure dictated by the Convention is
limited to cases where the removal of a child is in
violation of the custody rights — and not rights of access
only — of a person, institution or other body (Thomson,
supra, at pp.579 and 581 (per LaForest J.)). As for the
effect of including a restriction on removal of a child in
an interim custody order, although the Court considered that
such a restriction conferred rights of custody within the
meaning of the Convention on the court with jurisdiction to
render a final decision as to custody, it took care to state
that the situation might be different if the removal of the
child were prohibited by a clause in a permanent custody
order. According to La Forest J., at pp. 589-90:
Such a clause raises quite different issues. It is usually
intended to ensure permanent access to the non-custodial
parent. The right of access is, of course, important but, as
we have seen, it was not intended to be given the same level
of protection by the Convention as custody. The return of a
child in the care of a person having permanent custody will
ordinarily be far more disruptive to the child since the
child may be removed from its habitual place of residence
long after the custody order was made. The situation also
has serious implications for the mobility rights of the
custodian. [Emphasis added.]
See also Thomson, supra, at pp. 606-7 (per L’Heureux-Dub‚
J.). However, the Court held that, in the specific case
before it, the removal of the child was wrongful within the
meaning of the Convention and, because it had not been
demonstrated that the situation fit into any of the
exceptions provided for therein, ordered that the child be
returned to Scotland.
27 The issue of the relationship between the Convention
and the Child Custody Enforcement Act arose because in
Canada, the Convention has been implemented by the
provinces, which, with the exception of Quebec, have
incorporated it into their domestic law in its entirety
through other legislation. As its name indicates, the
Manitoba legislation deals primarily with the recognition
and enforcement of custody orders made outside Manitoba.
Although LaForest J., writing for the majority on this
subject, concluded that there was a dichotomy between the
two systems, he nevertheless stated the following at p.603:
… where the provisions of the Act are selected it may not
be improper to look at the Convention in determining the
attitude that should be taken by the courts, since the
legislature’s adoption of the Convention is indicative of
the legislature’s judgment that international child custody
disputes are best resolved by returning the child to its
habitual place of residence….
28 Since the situation in Quebec can be distinguished
from that in Manitoba in that the sole purpose of the Act is
to give effect to the Convention even though it does not
adopt the integral wording thereof, two independent systems
cannot coexist in Quebec. On the contrary, the
interdependence of the Convention and the Act is recognized
both in the preamble to the Act, which states that “Qu‚bec
subscribes to the principles and rules set forth in the
Convention”, and in s.1 thereof, which states the common
objects of the Act and the Convention. Furthermore, the Act
adopts verbatim the Convention’s definitions of rights of
custody and rights of access. Thus, like the Convention, the
Act, by authorizing the prompt return of children to the
place of their habitual residence only if they are removed
or retained in breach of custody rights, reserves a form of
protection for custody rights distinct from that for rights
of access. In my view, the interdependence of the Convention
and the Act accordingly suggests an interpretation of ss.3
and 4 of the Act that gives full effect to the object of the
Convention while taking the guidelines set out in Thomson
into account.
29 It is against this backdrop that the Act, and more
specifically ss.3 and 4 thereof, must now be interpreted in
respect of the concept of custody.
3. The Act
30 As I mentioned previously, in Quebec it is the Act
that gives effect to the Convention. The relevant provisions
of the Act, which I will now discuss, are ss.3 and 4.
(a) Section 3
31 According to s.3 of the Act, quoted earlier — which
reproduces almost verbatim Article3 of the Convention as
interpreted in Thomson — the removal or retention of a
child is wrongful “where it is in breach of rights of
custody”. In light of the principle stated in Thomson as to
the object of the mandatory return procedure established by
the Convention, it is clear that s.3 of the Act, in
initiating that return procedure, is concerned exclusively
with the protection of rights of custody and not with
compliance with rights of access.
32 The Act’s definition of rights of custody has two
branches: “rights relating to the care of the person of
the child” and “the right to determine the child’s place of
residence”; in some cases, these attributes of custody
rights are susceptible to severance (Eekelaar, supra, at
pp.309-10; J. G. McLeod, Case comment on Thomson v. Thomson
(1994), 6 R.F.L. (4th) 406, at pp.408-9). For example, in
Thomson, this Court held that the express prohibition on
removing the child, that was included in the interim order
giving custody to the mother, conferred on the court rights
of custody within the meaning of the Convention, even though
the order in question entrusted “rights relating to the care
of the person of the child” to the mother on an interim
basis.
33 In my view, the possibility of severing the right to
determine the child’s place of residence from rights of
custody must be considered in light of the fundamental
purpose of the Act: to prevent any person, including the
non-custodial parent, regardless of whether he or she has
rights of access, from removing or retaining a child,
custody of whom has been awarded to one parent, to or in a
place other than the child’s habitual residence. From this
perspective, the Act clearly suggests a large and liberal
interpretation of the custody concept. More specifically,
rights of custody within the meaning of the Act cannot be
interpreted in a way that systematically prevents the
custodial parent from exercising all the attributes of
custody, in particular that of choosing the child’s place of
residence, but, on the contrary, must be interpreted in a
way that protects their exercise. The comments of K. B.
Farquhar in “The Hague Convention on International Child
Abduction Comes to Canada” (1983), 4 Can. J. Fam. L. 5, at
p.15, shed an interesting light on this:
As is to be expected in an international convention designed
to apply to as many legal systems as possible, no attempt is
made to define exhaustively the term “custody”. Instead,
Article 5(a) provides that the words “rights of custody”
shall include “rights relating to the care of the person of
the child and in particular the right to determine the
child’s place of residence”. This reveals that the term
“custody” is used as an abbreviation for what the Convention
is really trying to achieve — a system that will try to
perpetuate continuity in environment for a child rather than
maintain the legal concept of custody in all its various
manifestations. [Emphasis added.]
34 Some authors have been critical of the fact that the
Convention protects only custody rights, provided that they
are awarded by a permanent order of custody, without regard
to any circumstances suggesting that they are in reality
unsettled (Black and Jones, supra, at pp.329-31; McLeod,
supra, at p.409). According to Black and Jones, the
recognition of custody rights within the meaning of the
Convention — and consequently the protection of the
exercise of the attributes thereof, such as the right to
determine the child’s place of residence — implies the
demonstration of a certain stability regarding, inter alia,
the exercise of rights of access. This criticism applies
equally in respect of the Act, which is to the same effect
as the Convention on this point.
35 For all practical purposes, what this interpretation
of custody rights requires of a court in a jurisdiction
other than that to which the child is to be returned, is a
critical review of the merits of any custody issue, which
is, in my view, inconsistent with the very philosophy of the
Convention and the Act in that it tends not only to make the
process of returning a child cumbersome and to slow it down,
but also to fundamentally alter its nature.
36 The automatic return procedure implemented by the Act
is ultimately intended to deter the abduction of children by
depriving fugitive parents of any possibility of having
their custody of the children recognized in the country of
refuge and thereby legitimizing the situation for which they
are responsible. To that end, the Act favours the
restoration of the status quo as soon as possible after the
removal of the child by enabling one party to force the
other to submit to the jurisdiction of the court of the
child’s habitual place of residence for the purpose of
arguing the merits of any custody issue. The Act, like the
Convention, presumes that the interests of children who have
been wrongfully removed are ordinarily better served by
immediately repatriating them to their original
jurisdiction, where the merits of custody should have been
determined before their removal. Once that determination has
been made, the Convention and the Act give full effect
thereto by protecting custody rights through the mandatory
return process. See generally R. Schuz, “The Hague Child
Abduction Convention: Family Law and Private International
Law” (1995), 44 Int’l & Comp. L.Q. 771, at pp.775-76;
Farquhar, supra, at p.10; Anton, supra, at pp.542-43.
37 Thus, the Convention and the Act represent a
compromise between the flexibility derived from reviewing
each situation on its merits and the effectiveness needed to
deter international child abduction, which depends in
particular on the rapidity of the return procedure. As s.30
of the Act provides, “[a] decision under this Act concerning
the return of a child shall not be taken to be a
determination on the merits of any custody issue”. According
to s.20 of the Act, when a court finds that there has been a
wrongful removal within the meaning of s.3 or 4 of the Act,
it must automatically order the return of the child unless
the person who opposes that return can prove that the
situation falls within one of the exceptions provided for
therein, such as the settlement of the child in his or her
new environment. From this perspective, those exceptions,
which recognize that an order for return can, in certain
circumstances, be contrary to the interests of the child,
have generally been interpreted narrowly (Silberman, supra,
at pp.25-31). At the procedural level, the expeditiousness
of proceedings for the return of a child is ensured, inter
alia, by s.19 of the Act, which provides that they take
precedence over all other matters as provided in art.861
C.C.P. for habeas corpus proceedings. It should also be
noted that s.27 of the Act requires the Minister of Justice
to indicate the reasons for a failure by the Superior Court
to reach a decision within six weeks from the filing of an
application for the return of a child.
38 In summary, the application of the Act is triggered
under s.3 where a child is removed or retained in breach of
rights of custody within the meaning of the Act, as opposed
to rights of access only. Although it is true that an
interim custody order combined with an order restricting the
removal of a child might temporarily deprive the person
awarded custody of the right to determine the child’s place
of residence by making any removal of the child wrongful
within the meaning of s.3 of the Act, aside from this
exception, the large and liberal interpretation to be given
to the concept of custody under the Act is not affected. A
narrow reading would contradict the very object of the Act,
namely to protect rights of custody and the exercise of the
attributes thereof, including the choice of the child’s
place of residence. Since the foundation of the Act is the
rapidity of the mandatory return process and the principle
that the merits of issues related to the custody of children
who have been wrongfully removed or retained are to be
determined by the courts of their habitual place of
residence, the very philosophy of the Act militates against
bringing the unsettled factual basis of a custody order into
play at this stage of the exercise. Section 4 of the Act
meets those objections, however.
(b) Section 4
39 While s.3 of the Act is based on the wording of the
Convention, s.4 represents an original initiative by the
Quebec legislature. I reproduce s.4 again for the sake of
convenience:
4. In addition to the cases contemplated in section
3, the removal or the retention of a child is considered
wrongful if it occurs when proceedings for determining or
modifying the rights of custody have been introduced in
Qu‚bec or in the designated State where the child was
habitually resident and the removal or retention might
prevent the execution of the decision to be rendered.
In addition to cases of wrongful removal or retention within
the meaning of s.3 of the Act, it can be seen that s.4
corresponds exactly to the objective of the Convention,
namely protection of the right of custody, by making it
possible to order the return of a child whose removal or
retention “occurs when proceedings for determining or
modifying the rights of custody have been introduced in
Qu‚bec or in the designated State where the child was
habitually resident and the removal or retention might
prevent the execution of the decision to be rendered”. It is
thus necessary to consider the interaction between ss.3 and
4 of the Act as well as the common objective of the
Convention and the Act in order to obtain a clearer idea of
the scope of s. 4.
40 In my view, s.4 merely expands the concept of
“wrongful removal”; it does not broaden the Act’s definition
of rights of custody. Under s.4, a party who may be awarded
rights of custody within the meaning of the Act can apply
for the child’s return even if the child is removed before
the court’s decision is rendered. In this way, by taking
account of the fact that custody rights obviously become
unsettled when the right to apply for a modification thereof
has been exercised, s.4 ensures that the execution of the
custody order that is eventually made will not be frustrated
by the untimely removal of the child.
41 The respondent objected to this concept of custody
rights under both ss.3 and 4 of the Act.
42 The respondent made two arguments in support of her
claim that, in Maryland, she had rights of custody within
the meaning of the Act, making the child’s removal wrongful
under s.3 of the Act. Although the respondent acknowledged
that the appellant was awarded custody rights in Maryland
that were a priori permanent, she asked this Court to
consider the unsettled nature of those rights in the factual
context of the case at bar. According to the respondent, the
fact that the appellant removed the child without telling
her or obtaining her consent automatically conferred rights
of custody within the meaning of the Act on the Maryland
courts, since the removal was a circumstance that might
permit the custody order to be reviewed under both Maryland
and Quebec law. In the alternative, the respondent argued
that she had an implicit right to oppose the child’s removal
that was equivalent to rights of custody within the meaning
of the Act. These two submissions basically reflect the
Court of Appeal’s interpretation of the concept of custody
under the Act in the case at bar and must, in my opinion, be
rejected.
43 While the Court of Appeal described its
interpretation of the concept of custody as [TRANSLATION]
“large”, it actually adopted a very narrow interpretation in
order to find that, although the respondent had only access
rights, she had rights of custody within the meaning of the
Act when the child was removed. By confusing, for all
practical purposes, the concepts of custody rights and
access rights, this interpretation amounts to saying that
any removal of a child without the consent of the parent
having access rights could set in motion the mandatory
return procedure provided for in the Act and thus indirectly
afford the same protection to access rights as is afforded
to custody rights. In this regard, it is interesting to note
the comments of Anton, supra, at p.546, who seemed to
exclude this possibility:
It is clear also from the definitions of custody and access
in Article 5 that the removal or retention of a child in
breach merely of access rights would not be a wrongful
removal or retention in the sense of Article 3. It is less
clear, but the definition of “rights of custody” in Article
5 at least suggests, that the breach of a right simply to
give or to withhold consent to changes in a child’s place of
residence is not to be construed as a breach of rights of
custody in the sense of Article 3. A suggestion that the
definition of “abduction” should be widened to cover this
case was not pursued. [Emphasis added.]
44 It could, of course, be argued that an award of
custody rights is never permanent because of the
changeability over time of each of the circumstances
relating to the child that may affect his or her best
interests. Thus, the removal of a child from one country to
another is undoubtedly a significant change in that child’s
situation and may justify an application for a review of the
award in certain circumstances. However, this does not mean
that the courts in the child’s original jurisdiction
automatically have rights of custody within the meaning of
the Act following that removal. Accepting such a submission
would amount to saying that all custody is unsettled and
that every time a custodial parent removes a child there
might be a wrongful removal within the meaning of the Act.
In my view, that is not the purpose of the Act, especially
since the relevance of the unsettled nature of custody
rights is clearly limited by s.4 of the Act, which is
directed to the specific situation in which proceedings for
modifying those rights have actually been introduced when
the child is removed.
45 I would also reject the respondent’s alternative
argument that the custody order made in the appellant’s
favour in Maryland implicitly included a prohibition on
removing the child, thereby granting the respondent rights
of custody within the meaning of the Act, and that the
source of this prohibition is Maryland law, Quebec law, the
judgments already rendered by the Maryland courts or the
proceedings pending there. This argument flows from the
first in that it also incorrectly equates custody rights in
the strict sense with the right to apply for a modification
of custody rights after the child is removed.
46 An examination of the Court of Special Appeals’
judgment on May 14, 1991 shows that Maryland law reflects
the principles applicable in Quebec with respect to the
custodial parent’s power to choose the child’s place of
residence. When the custodial parent unilaterally moves the
child, this does not automatically result in a modification
of the custody order. However, such a move may justify a
review of that order if the parent objecting to it shows
that there has been a “substantial change of circumstances”
affecting the child’s interests to such an extent as to
justify the court’s intervention. Thus, as is the case in
Quebec, Maryland law recognizes that the custodial parent’s
decision-making power includes the choice of the child’s
place of residence, subject to the non-custodial parent’s
right to object to that choice if he or she considers it
contrary to the child’s interests.
47 Moreover, although Thomson did not determine whether
an implicit restriction on removing a child under a court
order or statute confers rights of custody within the
meaning of the Act on either the court or the non-custodial
parent, this Court’s limitation of the effect of an express
non-removal clause in a permanent custody order casts
serious doubt on the validity of the respondent’s argument.
48 The respondent is also asking this Court to depart
from the literal meaning of the words “proceedings for …
modifying the rights of custody” in s.4 of the Act so as to
include therein any proceedings for modifying access rights,
on the basis that any modification of access rights, which
are a component of custody rights, affects and limits
custody rights accordingly. In my view, this interpretation
must be rejected since it does not take into account the
interaction between ss.3 and 4 or the common objective of
the Convention and the Act. As I stated above, only custody
rights are protected by the mandatory return procedure
provided for in the Act and s.4 expands only the Act’s
concept of “wrongful removal”, not that of “custody”. The
effect of the interpretation suggested by the respondent
would be to afford the same protection to any access rights
that are the subject of court proceedings as is afforded to
custody rights. In my opinion, neither the purpose nor the
letter of s.4 supports compromising in this manner the
distinction made by the Act between custody rights and
access rights. Moreover, an acknowledgment that s.4 of the
Act extends the scope of the Convention in this way would
fail to take account of the common objective of the Act and
the Convention calling for the two documents to be
interpreted consistently with each other.
49 Having disposed of this aspect of the proceedings, it
must now be decided whether the Act is applicable to the
circumstances of this case as the trial judge and the Court
of Appeal found.
4. Application to the Case at Bar
50 The child was removed from Maryland to Michigan in
November 1989 and from Michigan to Quebec on February 13,
1990. On the latter date, the most recent decision
concerning the child’s custody was that rendered by the
Circuit Court of Maryland on September29, 1988 (affirmed by
the Maryland Court of Special Appeals on November8, 1989)
awarding the appellant permanent custody of the child and
the respondent supervised access rights. The motions made by
the respondent in Maryland on December 15, 1989, which
concerned only the enforcement, modification and expansion
of her access rights, had not yet been ruled on and the
appellant, at that time, was in Michigan with the child.
However, under the agreement of February 1, 1990, a schedule
of supervised visits had been established and the appellant
had agreed to have the child undergo a psychiatric
evaluation in Michigan to be filed as evidence when the
respondent’s motions were heard. Although the appellant did
disregard that agreement when he left Michigan for Quebec on
February 13, 1990, he did have permanent custody of the
child without any restriction as to her removal.
51 In light of the concept of custody under the Act, the
child’s removal was therefore not wrongful within the
meaning of s.3 of the Act. Nor can the situation be
described as a “wrongful retention” within the meaning of
that section. On this point, I will simply refer to the
comments of LaForest J. in Thomson, supra, at pp.592-93,
where he found that the ex parte custody order obtained by
the father in Scotland in that case following the child’s
removal did not confer custody rights on him that made the
child’s retention in Manitoba wrongful:
There is nothing in the Convention requiring the recognition
of an ex post facto custody order of foreign
jurisdictions…. “[W]rongful retention” … does not
contemplate a retention becoming wrongful only after the
issuance of a “chasing order”….
To paraphrase, a wrongful retention begins from the moment
of the expiration of the period of access, where the
original removal was with the consent of the rightful
custodian of the child.
52 As for the proceedings pending when the child was
removed, since they related solely to the respondent’s
access rights and not the appellant’s custody rights, it
must be concluded that s.4 does not apply either. In this
respect, the fact that the respondent applied only for a
modification of her access rights when the child was removed
from Maryland to Michigan suggests that the appellant’s
custody rights were neither disputed nor unsettled.
Moreover, the child was already living in Michigan at that
time, and the distance between Maryland and Michigan is
considerable even if it is less than the distance between
Maryland and Quebec. In addition, the respondent admitted
that it was only at the court’s suggestion that she filed a
petition to modify custody. In these circumstances, the
respondent’s arguments must be rejected.
5. Conclusion
53 Neither s.3 nor s.4 of the Act are applicable since
the appellant had custody of the child within the meaning of
the Act when she was removed and no proceedings for
modifying that custody had been introduced. It follows that
the trial judge had no jurisdiction to hear the appellant’s
motion for custody of the child under the Act and the Court
of Appeal was, therefore, wrong to follow the trial judge on
this issue.
II
Jurisdiction of the Superior Court and the Concept of
Custody under the Civil Code of Qu‚bec
54 Having said this, the question that arises is whether
the Superior Court of Quebec had jurisdiction to hear the
appellant’s motion for custody of the child under Quebec
civil law. If so, the concept of custody within the meaning
of the Civil Code of Qu‚bec will determine whether the trial
judge was entitled to dismiss the appellant’s motion and
whether, in doing so, he took into account the child’s best
interests.
1. Jurisdiction of the Superior Court of Quebec
55 Article 70 C.C.P. makes the domicile of either of the
parties the connecting factor for establishing the
jurisdiction of Quebec courts to hear applications in family
cases, including child custody cases (Groffier, supra, at
p.271). If recourse must be had to the Quebec conflict of
jurisdictions rules applicable at the time, it is recognized
that Quebec courts have jurisdiction to rule on child
custody once the child is domiciled, resident or physically
present in Quebec or the person who has control of the child
resides in Quebec (J. – G. Castel, Droit international priv‚
qu‚b‚cois (1980), at pp.243-45; but see art.3142 C.C.Q.).
56 The concept of domicile and the requirements for a
change of domicile are defined in the Civil Code of Lower
Canada, which was in force at the time of the relevant
facts. According to arts.79 and 83 C.C.L.C. respectively
(now arts.75 and 80 C.C.Q.), the domicile of a person is “at
the place where he has his principal establishment” and that
of a “minor whose custody has been the subject of a judicial
decision … with the person who has custody of him”.
Moreover, art.80 C.C.L.C. (now art.76 C.C.Q.) provides that
“[c]hange of domicile is effected by actual residence in
another place, coupled with the intention of the person to
make it the seat of his principal establishment”.
57 The appellant moved from Michigan to Quebec on
February 13, 1990, evidently with the intention of
establishing himself and the child there near his sister,
who already lived there. This intention is clear, inter
alia, from the fact that, once in Quebec, the appellant
applied for and obtained Canadian citizenship for himself
and his daughter. Thus, when he made a motion to the
Superior Court of Quebec for custody of the child on May 6,
1991, both he and the child were domiciled in Quebec, where
they had resided for almost 15 months. In any event, even if
the appellant’s domicile is not established, the residence
of the appellant and the child in Quebec is a sufficient
basis for the Superior Court’s jurisdiction according to
Quebec conflict of jurisdictions rules. I therefore find
that the trial judge had jurisdiction to hear and determine
the appellant’s motion for custody of the child.
58 A final issue that must be addressed concerns the
Superior Court’s power to order the return of the child in
the instant case. In exercising its jurisdiction over
custody, the Superior Court has the general powers conferred
on it by art.46 C.C.P.(Canadian Broadcasting Corp. v. Quebec
Police Commission, [1979] 2 S.C.R. 618, at p.644 (per Beetz
J.)). This supplementary provision grants courts and judges
“all the powers necessary for the exercise of their
jurisdiction” and authorizes them, inter alia, to “make such
orders as are appropriate to cover cases where no specific
remedy is provided by law”. The Superior Court’s
jurisdiction to order the return of the child in the instant
case falls under these powers.
59 In passing, I observe that the origin of the Superior
Court’s general powers is unrelated to the concept of parens
patriae jurisdiction conferred on superior courts of the
provinces by the common law, as noted by R. P. Kouri in
“L’arrˆt Eve et le droit qu‚b‚cois” (1987), 18 R.G.D. 643,
at pp.648-49:
[TRANSLATION][The parens patriae jurisdiction] was
traditionally vested in the Lord Chancellor and was later
assumed by the British Court of Chancery. In the Canadian
common law provinces, the Judicature Acts provided that the
superior courts had the same powers as the Court of
Chancery. Moreover, as we have already noted, these common
law provinces each retained English law on their territory.
Thus, the delegation of the parens patriae power to the
superior courts of these provinces was clearly set out in
legislation.
The situation is completely different in the province of
Quebec, since our legislative development has not been the
same. First of all, The Quebec Act reintroduced the
civil-based law of the Ancien R‚gime and the 1793 statute on
the judicature granted the Courts of King’s Bench the powers
of the courts of Prevot‚, Justice Royale, Intendant and
Superior Council. The legislature never conferred the powers
of a Court of Chancery on the Court of King’s Bench or its
successor, the Superior Court. These courts have therefore
never had the same jurisdiction as the Court of Chancery.
Accordingly, in the province of Quebec the parens patriae
prerogatives cannot be exercised by our courts but are
vested exclusively in the Queen’s representative, the
Lieutenant Governor. [Footnotes omitted.]
Professor Michel Morin’s exhaustive study, “La comp‚tence
parens patriae et le droit priv‚ qu‚b‚cois: un emprunt
inutile, un affront … l’histoire” (1990), 50 R. du B. 827,
confirmed that the parens patriae jurisdiction does not
exist in Quebec. Moreover, the author noted at pp.901-2 that
this jurisdiction is unnecessary in Quebec, inter alia in
cases concerning children:
[TRANSLATION][C]ivil law judgments have been able to take
the child’s interests into account without having to borrow
from a foreign system of law. … Moreover … in private
international law the use of the parens patriae jurisdiction
in Quebec seems inadvisable. It adds superfluous criteria to
the general provisions of the Civil Code and the Code of
Civil Procedure. All things considered, we believe that
judgments based on this uncertain concept duplicate what
already exists in the civil law.
Contra: Droit de la famille — 323, [1988] R.J.Q. 1542
(C.A.). In any event, it is well settled that a court may
exercise the parens patriae jurisdiction only in the absence
of a specific statutory provision (E.(Mrs.) v. Eve, [1986] 2
S.C.R. 388, at p.426 (per LaForestJ.)), which is not the
case here given art.46 C.C.P., to which I referred above.
60 Since I have found that the trial judge had
jurisdiction to hear and determine the appellant’s motion
for custody of the child, provided that the judge applied
the Quebec civil law concept of custody, it does not really
matter that he relied on the Act in exercising this
jurisdiction. From this perspective, it is helpful to review
the concept of custody under the Civil Code of Qu‚bec.
2. Concept of Custody under the Civil Code of Qu‚bec
61 In Quebec, the concept of custody is included in the
concept of parental authority, of which it is one of the
main attributes under art.647 C.C.Q. (now art.599): “The
father and mother have the rights and duties of custody,
supervision and education of their children”. This concept
is not defined anywhere in the Civil Code of Qu‚bec, except
that it comprises both rights and duties for parents, which
give rise to a duty on the child’s part to respect parental
authority. Article 650 C.C.Q. (now art.602) provides that
“[n]o unemancipated minor may leave the family home without
the consent of the person having parental authority”.
62 As long as the parents live together, they both
exercise all the attributes of parental authority, including
the duties involved in custody. In the event of separation
from bed and board or divorce, however, an award of custody
to one of the parents or a third person authorizes that
person to make all decisions in respect of the child.
According to the Honourable Albert Mayrand, “La garde
conjointe, r‚‚quilibrage de l’autorit‚ parentale” (1988), 67
Can. Bar Rev. 193, at p.206, [TRANSLATION] “the custodian
has the initiative on his or her side; he or she exercises
authority directly without having to rely on the court’s
authority or consult his or her former spouse”.
63 The custodial parent’s right to take the initiative
and his or her decision-making autonomy are perfectly
consistent with the logic behind the fundamental distinction
between custody rights and access rights, a distinction upon
which the respective roles of the custodial parent and the
non-custodial parent are based. Thus, the non-custodial
parent retains only a right to supervise the child, which
may be exercised by means of the right to have access to the
child and take the child out. This was stated as follows by
the Honourable Robert Lesage in “Garde ou autorit‚
parentale; l’emprise de la s‚mantique” (1988), 91 R. du N.
46, at p.49:
[TRANSLATION]The non-custodial parent can become directly
involved in day-to-day decisions concerning the child only
within the limits of his or her access rights. He or she
does not have custody. Access is not synonymous with
alternating custody, even where the right to take the child
out is broad. The custodial parent retains complete
responsibility for the child’s person. [Emphasis added.]
To the same effect, see E. Groffier-Atala, “De la puissance
paternelle … l’autorit‚ parentale” (1977), 8 R.G.D. 223, at
p.229; C.L’Heureux-Dub‚, “La garde conjointe, concept
acceptable ou non?” (1979), 39 R. du B. 835, at pp.850-51.
64 Courts have expressed complete agreement with this
view. In Dussault v. Ladouceur (1987), 14 R.F.L. (3d) 185
(Que. C.A.), GendreauJ.A. wrote the following at p.191:
[TRANSLATION] It goes without saying that, as a general
rule, when custody of a child is awarded to one parent, he
or she then exercises all the attributes of parental
authority and the other parent does not normally interfere
with the custodial parent’s approach except in performing
his or her supervisory role. In this way, unity in the
child’s development is preserved and fragmentation and rifts
that might be harmful to the child are avoided.
65 However, the non-custodial parent does not lose the
status of a person having parental authority: he or she
may and must continue to perform his or her duties of
supervision and education in so far as this is not
incompatible with the custodial parent’s custody rights
(P.(D.) v. S.(C.), [1993] 4 S.C.R. 141, at p.164 (per
L’Heureux-Dub‚ J.); C.(G.) v. V.-F.(T.), [1987] 2 S.C.R.
244, at pp.281-82 (per Beetz J.)). This principle is also
expressed as follows in art.570 C.C.Q. (now art.605):
“Whether custody is entrusted to one of the spouses or to a
third person, the father and mother retain the right of
watching over the maintenance and education of the children,
and are obliged to contribute thereto in proportion to their
means”.
66 The same is not true, however, for custody rights,
the third component of parental authority. Mayrand, supra,
stated the following at p.196:
[TRANSLATION] [S]eparation or divorce makes it impossible
for [the non-custodial parent] to discharge the duties of
custody. As long as that parent is prevented from fulfilling
his or her custody obligations, he or she is released
therefrom; in family law as in property law, “no one is
bound to do the impossible”.
What impedes the exercise of his or her rights is the
exercise of the same rights by the spouse or former spouse
to whom the court has entrusted the child. [Footnote
omitted.]
He adds at p.206:
[TRANSLATION] To the extent that the non-custodial parent’s
parental authority is diminished and weakened, that of the
person to whom the court awards custody is strengthened. His
or her rights of custody, in the strict sense of the word,
which were once shared with his or her spouse, become
exclusive rights, except that he or she is normally subject
to the right granted to the former spouse to visit the child
and to have the child stay with him or her for limited
periods.
67 More specifically, it is generally recognized that
the concept of custody includes, inter alia, the right to
determine the child’s place of residence as a necessary
attribute of custody. Mayrand, supra, stated this as follows
at p.195:
[TRANSLATION] [C]ustody may be defined as the right and duty
of the father and mother to keep their minor child in their
home or to determine the child’s place of residence in order
to properly carry out their duty to supervise and educate
the child. [Emphasis in original.]
Along the same lines, Professor Monique Ouellette, Droit de
la famille (3rd ed. 1995), at p.224, expressed the opinion
that [TRANSLATION] “[c]ustody rights presuppose that the
parents _physically’ live with the child”. Similarly,
according to P. B. Mignault, Le droit civil canadien (1896),
vol.2, at p.145, it is the parents [TRANSLATION] “who
determine the type of education [the child] will receive and
where [the child] must reside for his or her education or
learning”.
68 In this regard, the impact of awarding custody of a
child to a third person was examined by this Court in C.(G.)
v. V.-F.(T.), supra, in which BeetzJ. stated the following
at pp.285-86:
[S]omeone to whom a court awards the custody of a child
clearly enjoys the exercise of part of the parental
authority, which indeed surpasses the mere determination of
the child’s residence. … The civil law concept of custody
necessarily includes the presence of the child. Accordingly,
a minor whose custody is awarded to a third person acquires
the domicile of that person (art.83 C.C.L.C.) As Professor
Simler correctly observes:
[TRANSLATION]The crux of the problem is the right to
determine where the child lives. It is important to remember
that though the concept of custody is not defined by this
right alone, it is nevertheless this right that gives the
person having custody the necessary means of performing his
function. It is therefore inconceivable to speak of custody
of a child in the absence of this element.
(P.Simler, “La notion de garde de l’enfant (sa signification
et son r“le au regard de l’autorit‚ parentale)” (1972), 70
Rev. trim. dr. civ. 685, at p.708.) [Emphasis added by
Professor Simler.]
Since Quebec civil law does not differentiate according to
whether custody of a child is awarded to one of the child’s
parents or a third person (art.570 C.C.Q. (now art.605)),
these comments apply to all custody awards.
69 However, the custodial parent’s power to determine
the child’s place of residence remains subject to the right
of the non-custodial parent, whether or not he or she has
access rights, to challenge the exercise of that power by
bringing an action under art.653 C.C.Q. (now art.604),
which, “[i]n the case of difficulties relating to the
exercise of parental authority”, allows the non-custodial
parent to refer the matter to the court. As Professor Jean
Pineau stated in La famille — Droit applicable au lendemain
de la ®Loi 89¯ (1983), at pp.135-36:
[TRANSLATION] However, it must not be forgotten that the
duties deriving from parental authority remain even where
the exercise of such authority is dismembered. That is why,
under article 215 [C.C.L.C. (now art.605)], both the father
and mother retain the right to watch over the maintenance
and education of their children, regardless of who obtains
custody of them. Accordingly, a problem may arise when one
of the spouses decides to move abroad and that spouse has
custody: in such a case, the other spouse, who can no
longer exercise his or her right to watch over the child,
might apply to the court for a new order granting him or her
custody of the child. [Emphasis added.]
Thus, in some cases a change in the child’s place of
residence may be a new circumstance capable of justifying a
modification of the custody order.
70 In summary, authors and the courts both affirm that
the Civil Code of Qu‚bec has adopted a liberal concept of
custody — one that does not include access rights — that
gives the custodian the exclusive power to make all
decisions in respect of the child, including the choice of
the child’s place of residence.
71 From a comparative perspective, it is interesting to
note that the liberal concept of custody is also well
established at the present time in divorce matters, as noted
by J.D.Payne, Payne on Divorce (3rd ed. 1993), at p.240:
In Canadian divorce proceedings, case law tends to support
the conclusion that, in the absence of directions to the
contrary, an order granting “sole custody” to one parent
signifies that the custodial parent shall exercise all the
powers of the legal guardian of the child. The non-custodial
parent with access privileges is thus deprived of the rights
and responsibilities that previously vested in that parent
as a joint custodian of the child. [Emphasis added.]
According to the same author at pp.242-43, this
interpretation of custody rights remains the same under the
Divorce Act, 1985, S.C. 1986, c.4 (now the Divorce Act,
R.S.C., 1985, c.3 (2nd Supp.)):
The provisions of the Divorce Act, 1985, and particularly
the definitions of “custody” and “accŠs” in section 2(1),
may preclude Canadian courts from reverting to a narrow
definition of custody. Pursuant to section 2(1), “`custody’
includes care, upbringing and any other incident of custody”
and “`accŠs’ comporte le droit de visite.” The use of the
word “includes” in the definition of “custody” implies that
the term embraces a wider range of powers than those
specifically designated in section 2(1)…. Consequently, in
the absence of an order for shared parenting or a
court-ordered division of the incidents of custody, a
non-custodial spouse with access privileges would remain a
passive bystander who is excluded from the decision-making
process in matters relating to the child’s welfare, growth
and development. [Emphasis added.]
72 As is the case in Quebec civil law, it follows from
this broad concept of custody that choosing the child’s
residence has been recognized to be a prerogative of the
custodial parent, subject to the non-custodial parent’s
right to apply to the court to vary the terms and conditions
of custody and access after the child is removed (s.17(1)
and(5) of the Divorce Act). This principle has been
reiterated by the Quebec Court of Appeal a number of times
in the context of the Divorce Act: Droit de la famille —
120, [1984] C.A. 101, at p.104 (per MayrandJ.A.); Droit de
la famille — 7, [1984] C.A. 350, at p.354 (per Mayrand and
MonetJ J.A., Bernier J.A. dissenting); Droit de la famille
— 190, [1985] C.A. 201, at pp.203-4 (per Chouinard J.A.);
Droit de la famille — 1826, [1993] R.J.Q. 1728 (C.A.),
aff’d [1995] 4 S.C.R. 592 (sub nom. P.(M.) v. L.B.(G.)). By
way of example, in the last-mentioned case, the mother, who
had custody rights, moved with the child from Quebec to
France in disregard of the father’s access rights and of an
agreement confirmed by a court order that prohibited such a
removal. Although, in that specific case, the father was
eventually awarded custody of the child, ProulxJ.A. stated
unequivocally that [TRANSLATION] “there is attached to the
right of custody a right to decide where the child will
live” (p.1735).
73 Thus, the concept of custody under the Civil Code of
Qu‚bec, as at common law and under the Divorce Act, cannot
be distinguished from the concept of custody under the
Convention and the Act. Since these different systems all
give this concept a broad meaning that is distinct from
access rights and that includes, inter alia, the right to
choose the child’s place of residence, it is of little
consequence that the trial judge ruled on the appellant’s
motion for custody of the child under the Act rather than
the Civil Code of Qu‚bec.
74 This brings us to the question whether, despite the
fact that the trial judge took the wrong legal approach by
applying the Act to the circumstances of the case at bar, he
would have come to the same conclusion had he applied the
Civil Code of Qu‚bec. From this perspective, it should be
recalled that the interests of the child are the fundamental
criterion in matters of child custody, which was the subject
of the motion before the trial judge.
3.The Interests of the Child
75 As we know, the interests of the child are central to
any decision concerning the child. This is the principle
underlying the Convention and the Act. It is also the
criterion adopted by the Civil Code of Qu‚bec, the courts
and authors.
76 The primacy of the child’s interests is recognized by
the Convention’s fundamental objective, which is confirmed
in the Act and set out in the preamble to the Convention:
“the interests of children are of paramount importance in
matters relating to their custody”. This objective is in
keeping with the universal recognition that the interests of
the child must prevail, as stated in a number of
international documents in addition to the Convention, such
as the Convention on the Rights of the Child, Can. T.S. 1992
No. 3, Article 3 of which provides that “[i]n all actions
concerning children … the best interests of the child
shall be a primary consideration”.
77 In the specific context of the removal or retention
of a child in breach of custody rights, the Convention and
the Act presume that the interests of the child lie in being
promptly returned to his or her habitual place of residence
for a determination on the merits of custody, where
necessary. Thus, the interests of the child within the
meaning of the Convention and the Act “should not be
interpreted as giving a court seized with the issue of
whether a child should be returned the jurisdiction to
consider the best interests of the child in the manner the
court would do at a custody hearing” (Thomson, supra, at
p.578 (per LaForestJ.)). However, Article 13 of the
Convention recognizes that, in certain clearly defined
situations, the interests of the child before the court may
on an exceptional basis justify not ordering the child’s
return (Schuz, supra, at p.776). According to the Act, which
is to the same effect, the Superior Court may refuse to
order the return of the child for certain reasons, inter
alia if it is demonstrated that the child is now settled in
Quebec within the meaning of s.20.
78 As with the concept of custody under the Convention
and the Act, the best interests of the child also underlie
the concept of custody under the Civil Code of Qu‚bec. The
evolution of the concept of custody in Quebec, which I
reviewed in detail in P.(D.) v. S.(C.), supra, at pp.156-59,
shows that the child’s best interests have been substituted
for paternal authority, at pp.158-59:
It can thus be seen that, at that time, paternal authority
amounted, for all practical purposes, to a right of
ownership of the father over the children. Later, in the
fifties, the courts moved towards recognizing the rights of
children over those of parents, although the father
continued to be favoured. Little by little the criterion of
the child’s best interests emerged in custody decisions, a
change that coincided with movements toward equality of the
sexes.
. . .
Finally, on April 2, 1981, that part of the new Civil Code
of Quebec altering existing family law came into effect. Not
only are spouses now regarded as equal, but the best
interests of the child henceforth govern the awarding of
child custody.
79 In light of the evolution of custody rights in
Quebec, which is similar to that of the common law in this
regard (King v. Low, [1985] 1 S.C.R. 87, at p.93 (per
McIntyreJ.)), it must now be determined what criterion
applies when custody is awarded outside the context of
divorce or separation from bed and board. The Divorce Act
provides that in making a custody order, “the court shall
take into consideration only the best interests of the child
of the marriage as determined by reference to the condition,
means, needs and other circumstances of the child”
(s.16(8)). In the context of separation from bed and board,
art.569 C.C.Q. (now art.514) requires the court to decide as
to the custody of children “in their interest and in the
respect of their rights”.
80 The only criterion that governs decisions about a
child in custody proceedings, as in any other proceedings
concerning the child, is stated in art.30 C.C.L.C. (now
art.33 C.C.Q.), which I have already quoted: “the child’s
interest and the respect of his rights”.
81 In C.(G.) v. V.-F.(T.), supra, which considered the
conditions for awarding custody of a child to a third person
in Quebec civil law, Beetz J., for the Court, stated the
following about the scope of art.30 C.C.L.C., at p.269:
The child’s interest has become the cornerstone of decisions
concerning it in Quebec civil law. The reform of family law
introduced in 1980 by the adoption of the Act to establish a
new Civil Code and to reform family law, S.Q. 1980, c.39,
has made the child’s interest paramount. The rule that the
child’s interest must prevail was for the first time
unequivocally recognized in the Civil Code with that
reform….
According to Beetz J., “[t]here can be no question that
art.30 C.C.L.C. applies to custody matters” (p.271). Thus,
as I wrote in P.(D.) v. S.(C.), supra, at p.174:
“Accordingly, whether rights of custody or access are
involved, the child’s best interests as set out in art.30
C.C.L.C. will be the sole guide”. (Emphasis in original.)
82 Authors and courts are unanimous in this regard.
Professor Mireille D. Castelli, Le nouveau droit de la
famille au Qu‚bec: projet de Code civil du Qu‚bec et Loi
sur le divorce (1993), at p.225, states that the only
criterion that applies in custody matters is that of the
child’s interests, as set out in art.33 C.C.Q. or, in the
case of divorce, s.16 of the Divorce Act. Professor
Ouellette, supra, at pp.225-26, noted that while the
criteria for awarding custody to a parent are many and
varied, [TRANSLATION] “[t]he entire process is concerned
with the child’s best interests, the only absolute
criterion”. More specifically, where a child is removed and
a conflict of jurisdictions arises, it is recognized that,
once the jurisdiction of Quebec courts to rule on the
child’s custody has been established, the court must be
guided by the best interests of the child and must not
concern itself with the law of the child’s domicile (Castel,
supra, at p.245; Groffier, supra, at p.144).
83 Given that the child’s best interests are, therefore,
the criterion governing custody awards, it must be
determined whether the trial judge actually applied this
criterion when he decided the appellant’s motion for custody
of the child.
4. Application to the Facts
84 As I stated above, it does not matter whether the
judge considered the concept of custody under the Act rather
than under the Civil Code of Qu‚bec, because in either case
the concept is identical in that it is not to be confused
with access rights only, particularly as regards the choice
of the child’s place of residence where there is no
restriction in this regard in the custody order, as in the
case at bar. Since it has been established that the
appellant was free to move with the child, the only issue
that the trial judge had to resolve under the Civil Code of
Qu‚bec was whether it was in fact in the child’s interests,
following that move, to remain with her father in the
circumstances disclosed by the evidence.
85 While the judge dismissed the appellant’s motion for
custody of the child on the basis of ss.3 and 20 of the Act,
he did in fact rule on the child’s best interests. Although
he felt that the only issue was whether the child was
settled in her new environment, there is no doubt in my
mind, based on the judgment and the judge’s exhaustive
analysis of the evidence after 14days of proof and hearing,
that he not only took account of the child’s best interests
but also determined that it was in her best interests to
return to her mother.
86 The trial judge’s consideration of the child’s best
interests is clear, for example, from his decision to allow
evidence of the parties’ relationship with the child before
the time of the child’s settlement in Quebec. Despite the
appellant’s objection in this regard, that evidence was
relevant, in his view, to detect any risk of physical or
psychological danger that might affect his decision about
the child. Moreover, it was only after ensuring that the
respondent would present no risk of physical or
psychological harm to the child that the child was ordered
to be returned to her.
87 The judge was unequivocal in expressing his
conviction that the extreme fragility of the child’s
psychological condition was in large part due to the
appellant’s behaviour. He noted, for example, that “the
child has no intimacy at all, being for example in
obligation to write down her impressions after each visit
with her mother in a document that is read by the father”
(p.120). Moreover, his conclusions about the child’s
psychological condition are also highly revealing: he
described her as having a “false-self” and as being in a
“straight [sic] jacket about to crack open”, and he even
went so far as to state that she was “on a sure road to
mental illness, perhaps sooner than we think and that the
damage is done” (p.120). Thus, after 14days of proof and
hearing during which he had the incalculable advantage of
seeing and hearing all the parties interested in the
proceedings, including the child, as well as three expert
witnesses, the judge concluded (at p.120):
… this case is so bad that in all conscience I believe,
even if this child is physically as free as a bird, that she
lives in a subtle psychological jail weaved by a sincere and
very intelligent father.
I have to conclude that this child has been alienated and is
in psychological danger. …
88 At this point, it should be noted that great
deference must be shown to the trial judge’s findings of
fact. It is well-settled case law that a court of appeal
must not intervene in the trial judge’s findings of fact
unless the judge made a manifest error, ignored conclusive
or relevant evidence, misunderstood the evidence or drew
erroneous conclusions from it (P.(D.) v. S.(C.), supra, at
pp.188-89 (per L’Heureux-Dub‚J.)). Like the Court of Appeal,
I find no such error by the trial judge in the case at bar.
Accordingly, in light of these findings of fact, which were
undisputed in this Court, it seems to me that the trial
judge correctly concluded that it was in the child’s
interests to order that she be returned to her mother.
89 In the final analysis, despite the fact that the
arguments before the trial judge were made in the context of
the Act and concerned a motion for custody of the child,
they ultimately related to the child’s best interests.
Whatever the law he applied, the trial judge found, on the
basis of complete evidence, that it was contrary to the
child’s interests to remain with the appellant. He therefore
dismissed the appellant’s motion and, as he had the
authority to do in exercising his jurisdiction, ordered that
the child be returned to the United States, first ensuring
that her interests would be served by such an order. It must
be noted that, on the date the judgment was rendered, the
most recent judgment in Maryland concerning the child’s
custody was that rendered by the Circuit Court on May8, 1990
(affirmed on May14, 1991 by the Court of Special Appeals),
which modified ex parte the original custody order in favour
of the appellant and awarded custody to the respondent until
arguments on the merits of custody could be heard. In this
context, the order that the child be returned was in the
nature of an interim order.
90 Since the judge ruled on the child’s best interests
in dismissing the appellant’s motion, there is nothing to be
gained from remitting the matter to the trial court for a
determination on the merits of the child’s custody,
especially in view of the fact that the respondent did not
request this in her conclusions in the Superior Court, the
Court of Appeal or this Court and in view of the proceedings
instituted in Maryland, where the child and her mother have
returned.
V. Summary
91 Even though the parties admitted that the Act was
applicable to the proceedings, the courts were not bound by
that admission. In the case at bar, in light of the broad
concept of custody recognized by the Convention and
enshrined in the Act, the Act is not applicable. When the
child was removed, the respondent had no rights of custody
within the meaning of the Act and there were no proceedings
for modifying the appellant’s rights of custody, which had
been awarded to him on a permanent basis.
92 Since the child was domiciled or resided with the
appellant in Quebec, art. 70 C.C.P.and Quebec conflict of
jurisdictions rules gave the Superior Court jurisdiction to
hear and determine the appellant’s motion for custody of the
child. In this regard, the child’s best interests were the
only criterion that should have guided the court under
art.30 C.C.L.C. (now art.33 C.C.Q.).
93 The fact that the trial judge dealt with the
appellant’s motion under the Act rather than the Civil Code
of Qu‚bec is of no consequence. Both have adopted a broad
concept of custody — one that does not include access
rights, inter alia in respect of the choice of the child’s
place of residence — and the best interests of the child
are the common standard. In the case at bar, the judge in
fact determined that the child was at risk with her father
by applying the test of the child’s best interests. In
addition, as he was authorized to do by art. 46 C.C.P. in
exercising his jurisdiction over custody, the judge ordered
that the child be returned to the United States after
finding that her interests would be served by such an order.
94 In view of the deference that must be shown to the
findings of fact by the trial judge, who heard all the
interested parties and lengthy expert evidence, in view of
the concept of custody under the Civil Code of Qu‚bec, which
is similar to that under the Act, and in view of the
criterion of the child’s best interests, which in fact
guided the judge in dismissing the appellant’s motion and
ordering that the child be returned to the United States,
the trial judge’s decision must be affirmed.
VI. Disposition
95 Although for different reasons than those given by
the Court of Appeal, I am of the view that the disposition
in the Superior Court’s judgment was correct. Accordingly, I
would dismiss the appeal with costs.
The following are the reasons delivered by
96 SOPINKA J. — I agree with L’Heureux-Dub‚ J., subject
to the reservation expressed by McLachlin J.
The following are the reasons delivered by
97 CORY J. — I agree with L’Heureux-Dub‚ J., subject to
the reservation expressed by McLachlin J.
Appeal dismissed with costs.
Solicitor for the appellant: Ghislain Richer, Sherbrooke.
Solicitors for the respondent: Laroche Alric, Sherbrooke.
Solicitors for the mis en cause Blais: Lecompte, Allaire &
Chiasson, Sherbrooke.