Décision

[1]           Upon an appeal from a judgment of June 29, 2017, of the Superior Court, District of Montreal (the Honourable Brian Riordan), dismissing the appellant’s challenge of the Superior Court’s jurisdiction to confirm and modify the conditions of access by the respondent to their child domiciled in Ontario by virtue of a prior custody order.

[2]           For the reasons of Mainville J.A., with which Schrager J.A. and Hogue J.A. concur, THE COURT:

[3]           GRANTS the appeal;

[4]           SETS ASIDE the judgment of June 29, 2017, of the Superior Court, District of Montreal;

[5]           GRANTS the application in first instance to dismiss on jurisdictional grounds the respondent’s Application to re-establish Plaintiff’s access and for interim order;

[6]           THE WHOLE without costs in appeal and in first instance in light of the nature of the case.

[7]           L. J. (the “Mother”) appeals, with leave, from a judgment of June 29, 2017, of the Superior Court, District of Montreal (the Honourable Brian Riordan), dismissing her challenge of the Superior Court’s jurisdiction to confirm and modify the conditions of access by M. P. (the “Father”) to their child domiciled in Ontario by virtue of a prior custody order.

[8]           In a world of increasing personal mobility and ever-changing communication technologies, this appeal raises the question of whether the Superior Court retains continuing jurisdiction to confirm and modify its own access order once the child that is the subject of the order is no longer domiciled in Quebec as a result of that order.

THE CONTEXT OF THE APPEAL

[9]           The parties are the parents of a child, X, now age 9 (the “Child”).

[10]        On June 29, 2012, a judgment of the Superior Court, District of Montreal, rendered by the Honourable Michèle Monast (the “Monast Judgment”), varied a prior custody order so as to grant sole custody to the Mother with the view of authorizing her to move to Brampton, Ontario with the Child, subject to the following rights of access for the Father:

(a)  Every other day by telephone or webcam between 6h00 p.m. and 7h00 p.m.;

(b)  One (1) weekend per month from Friday afternoon after school to Sunday evening at 7h00 p.m. When this weekend is immediately preceded or followed by a statutory holiday or a pedagogical day, the schedule shall vary from the Friday to the Thursday afternoon or from the Sunday to the Monday evening depending on the holiday;

(c)  One (1) week during the Christmas Holiday including either Christmas Day or New Year’s Day, on an alternate basis from year to year, beginning in 2012 with Christmas;

(d)  One (1) week at Spring Break;

(e)  Three (3) days during the Easter Holiday;

(f)    Father’s Day weekend;

(g)  Two (2) consecutive weeks in July and two (2) consecutive weeks in August during the summer vacations;

(h)  At any other time agreed between the parties.

[11]        While the Mother moved to Brampton with the Child pursuant to the Monast Judgment, the Father continued to reside in Town A. The Father alleges that shortly after the move, the Mother obstructed his access to the Child. As a result of this obstruction, the Father informed the Mother in April 2013 that he would henceforth suspend the exercise of his access rights. The nature of the Father’s contact with the Child thereafter is unclear.

[12]        This situation persisted until 2017, when the Father sought to restore his access rights under the Monast Judgment, setting in motion a series of events, described below, giving rise to the present appeal. On March 23, 2017, the Father filed an Application to Re-establish Plaintiff’s Access and for Interim Order in the Superior Court, District of Montreal, seeking restoration of the Monast Judgment on an ongoing basis with the proviso that the pick-ups of the Child would be at his school and the drop-offs at the Toronto Airport.

[13]        The Mother sought the dismissal of the Father’s application on the ground that the Superior Court lacked jurisdiction over the matter since the Child was now domiciled in Ontario, invoking articles 3093 and 3142 of the Civil Code of Quebec (“CCQ”) and article 167 of the Code of Civil Procedure (“CCP”).

[14]        In deciding the jurisdictional challenge, Riordan J. acknowledged that ordinarily the Superior Court would have no jurisdiction over a child domiciled in Ontario. In this case, however, the Child was domiciled in Ontario by virtue of an order of the Superior Court, the Monast Judgment, which had allowed his relocation under the Mother’s care:

[4]        In mobility cases, it is customary to impose access rights that, by definition, will have to be exercised extraterritorially. This aspect can obviously raise a number of enforcement issues, but that is not in issue today and, in any event, they do not impede a court from ruling on access. That is because, at least in part, the parent leaving the province has submitted to the jurisdiction of the courts in that province.

[5]        In that light, why would our courts lose jurisdiction with respect to modifications of the father’s access rights that were imposed at her instigation by a Quebec authority? By living in Ontario with the parties’ son, the mother is complying with the Monast Judgment and, thereby, is continuing to submit to the jurisdiction of the Quebec Superior Court, inter alia, with respect to the father’s access rights.

[15]        On this basis, Riordan J. found that the Superior Court has continued jurisdiction, though not necessarily exclusive jurisdiction, to modify the conditions of access, when the non-custodial parent continues to reside in Quebec.

QUESTION ON APPEAL

[16]        This appeal raises only one question: does the Superior Court retain continuing jurisdiction to confirm or modify its own access order once a child is no longer domiciled in Quebec as a result of a court-authorized move outside Quebec?

ANALYSIS

[17]        In this case, we are not concerned with an initial custody and access application. Rather, this appeal concerns whether the Superior Court of Quebec has jurisdiction to confirm and modify the conditions of access of one of its existing prior orders with respect to a child whose relocation outside Quebec was itself authorized by the Superior Court.

[18]        It is firmly established in Quebec law that the Superior Court’s jurisdiction to decide on matters of custody is ordinarily circumscribed by the domicile of the child in question. Articles 3093 and 3142 CCQ set out the following rules:

[19]        The question of domicile is in turn governed by article 80 CCQ:

[20]        Though the rules set out in articles 3093 and 3142 CCQ clearly govern initial custody and access applications, it is argued here that they do not extend to an application to confirm and vary the modalities of access of a prior existing judgment of the Superior Court. Rather, as found by the judge of first instance in this case, the Superior Court would retain a continuing, non-exclusive, jurisdiction to confirm or modify an access order when the custodial parent’s relocation with the child was itself authorized by that court.

[21]        The fundamental purpose of any custody and access order must be to safeguard the interests of the child.[1] In the private international law of child custody, the child’s interests necessarily import two supplemental precepts: first, that the court ruling on custody and access must be obliged to consider these interests and must be adequately equipped to evaluate them and, second, that the rules of territorial jurisdiction must discourage child abduction and forum shopping. It is these two precepts that must guide our understanding of the Superior Court’s jurisdiction in this appeal.

[22]        In principle and in practice, articles 3093 and 3142 CCQ respect the dual objectives of private international custody law that I have just described. It is clear and undisputed that the policy orientation of Quebec private international custody and access law set out in these articles functions when the court is seized of an initial custody dispute within its territorial boundaries. When the court is seized of an application to confirm and modify an existing access arrangement following a court-authorized relocation, it may be argued that an overly rigid reliance on the child’s domicile as the sole determinant of jurisdiction may undermine the policy objectives outlined above. The question is not, therefore, whether articles 3093 and 3142 CCQ exclude a priori the Superior Court’s jurisdiction to confirm or modify an existing access arrangement following a court-authorized relocation, but rather whether they should be permitted to limit the Superior Court’s jurisdiction in such circumstances taking into account the child’s interests.

[23]        First, and most obviously, if the Superior Court has authorized the custodial parent to move with the child, as is the case here, there is no longer any need to guard against abduction, illicit displacement, or forum shopping. The court-ordered relocation was, by its very nature, licit. Thus, to the extent that article 3142 CCQ was intended to limit the illicit movement of children, its purpose has been fulfilled in this case. In light of this, it may be argued that to truly protect against forum shopping, Quebec courts must continue to assert their jurisdiction even after the departure of the custodial parent with the child, precisely to prevent that parent from prematurely seeking a new access order in the new jurisdiction so as to nullify the effects of the Quebec judgment pertaining to access, particularly since the nature of the access rights provided to the non-custodial parent are often closely tied to the authorization granted to the custodial parent to leave the jurisdiction with the child.

[24]        Second, in the aftermath of the custodial parent’s court-authorized relocation, it may be further argued that Quebec courts will for some time remain the most appropriate forum to interpret their own judgments and to modify these to take into account changing circumstances. As an example, it should not be improper for the Superior Court to modify the conditions of access once a child has been authorized to move with the custodial parent to another jurisdiction so as to take in account unforeseen changing circumstances resulting from the move. Moreover, the embrace of new communications technology, such as webcams, into the courtroom under 279 CCP has greatly reduced the obstacles usually associated with giving evidence from a different jurisdiction. Similarly, the advent of social media suggests that any friends or family who remain in Quebec will continue to receive as much news about the child’s well-being as people in the child’s new jurisdiction, if not more.

[25]        In addition, though the issue of custody and access variations in mobility cases has received little judicial attention, decided cases hold that Quebec courts retain jurisdiction if the child changes domicile in the course of separation or divorce proceedings.[2] In Droit de la famille — 2094,[3] within the context of separation proceedings initiated in Quebec, the father was granted interim custody in June 1992 and moved with the child to Ontario. The mother subsequently applied to the Superior Court for access rights, but the father sought to have the case dismissed for want of jurisdiction. Duval Hesler J. (as she then was) had initially held that the Superior Court retained jurisdiction since it was initially competent to adjudicate the matter under the separation proceedings. Chaput J. later found that the Superior Court lacked jurisdiction. Upon appeal of the Chaput J. judgment, this Court endorsed the reasoning of Duval Hesler J. and confirmed the continuing jurisdiction of the Superior Court with respect to custody of and access to a child in the context of pending separation proceedings. This reasoning was further confirmed in a recent judgment of this Court in Droit de la famille — 171196 in the context of an appeal in divorce proceedings.[4]

[26]        However, it must be pointed out that the Monast Judgment is a final judgment and not an interlocutory judgment rendered in separation or divorce proceedings.[5] That the judgment under appeal was rendered in the same court file is a matter of administration and does not change the final nature of the Monast Judgment.

[27]        Furthermore, though decided in the context of divorce proceedings initiated outside of Quebec, in Gordon v. Goertz,[6] McLachlin J. (as she then was) specified that if there was to be a disagreement in relation to the details of access or financial arrangements following a court-authorized relocation of a custodial parent, the parties could apply to the originating court of first instance to resolve the matter.

[28]        All of this may lead one to believe that the Superior Court can exercise continuing jurisdiction to modify its own access orders once the child has been permitted to relocate with the custodial parent, subject to forum non conveniens considerations emphasizing the child’s interests. This is ultimately the approach retained by the judge of first instance in this case.

[29]        This approach finds some support outside Quebec. In Jerome v. Steeves,[7] two parents began roughly simultaneous custody proceedings in Ontario and Nova Scotia. The Ontario Court of Appeal found that, while the child had lived in Nova Scotia for nearly three years, the child had been ordinarily resident in Ontario at the start of proceedings. On this basis, the Court of Appeal held that Ontario had continuing jurisdiction. This resembles the situation described in Droit de la famille — 2094 discussed above.[8] Nevertheless, the Ontario Court of Appeal decided to decline jurisdiction on what amounted to forum non conveniens grounds which took into account the child’s interests. The Ontario Court of Appeal in Steeves did not automatically decline jurisdiction simply because the child was domiciled outside of the province, but it elected to decline jurisdiction upon becoming convinced that another forum was more convenient.

[30]        In Brouillard v. Racine,[9] as in the case at hand, the initial custody order was rendered in Quebec in April 2001, and provided that the child would travel back and forth between St-Jean-sur-Richelieu, Quebec, and Thunder Bay, Ontario. When the child was in Thunder Bay pursuant to the Quebec custody order, in September 2002, the mother began an application in Ontario to vary that custody order. The Ontario Superior Court found that the child was “habitually resident” in Ontario because he was there with his father’s consent and under the Quebec court order. Nevertheless, the judge found that the Children’s Law Reform Act did not give the Ontario court jurisdiction to vary the Quebec order and that even if it did, it was necessary to decline jurisdiction in favour of the Quebec court in light of forum non conveniens considerations.

[31]        Moreover, the American approach to private international child custody and access disputes is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a model act adopted by all 50 states except Massachusetts.[10] Prior to the introduction of the UCCJEA, private international law custody matters in the US were governed by a combination of the state-level Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act. These acts created a great deal of confusion, in part because they did not provide courts with continuing jurisdiction. The UCCJEA was thus developed largely in response to the perceived shortcomings of the prior legislation, particularly with respect to continuing jurisdiction, as commentators argued strongly in favour of exclusive continuing jurisdiction throughout the 1990s.[11] This was only finally achieved with the adoption of the UCCJEA in 1998.

[32]        Speaking generally, under the UCCJEA, the initial court making a valid custody determination over a child retains an exclusive, continuing jurisdiction to modify the custody arrangement, subject to two future conditions: the loss of a significant connection between the child and the original jurisdiction, or the departure of both parents from the initial jurisdiction.[12] As under the previous legislation, state courts may still decline jurisdiction on the grounds that they do not provide a convenient forum.[13] They may also decline jurisdiction if the petitioner seizes the court with “unclean hands” due to an illicit abduction or retention.[14] It is clear, however, that the adoption of the UCCJEA in 49 out of 50 states has solidified the norm of exclusive continuing jurisdiction for the court of initial jurisdiction. In other words, the US has widely established the principle that any modification to an existing custody order usually falls within the exclusive jurisdiction of the initial decree state.

[33]        It is also worth noting that the UCCJEA applies to custody orders issued by foreign countries in the same way as if these had been issued by a state of the United States.[15] Thus, in the eyes of the UCCJEA, the Superior Court would retain continuing, exclusive jurisdiction to modify its custody orders for which it had initial jurisdiction, even if the child in question relocated to the United States. This situation contrasts with the jurisdictional rules under the Hague Convention, 1996, further discussed below. This is why efforts have been recently completed in the US which have resulted in a new Article IV to the UCCJEA which will be applicable only to cases falling under the Hague Convention, 1996 and which seeks to ensure coordination between foreign decisions complying in jurisdictional matters with Hague Convention, 1996, and US decisions complying with the UCCJEA.[16]

[34]        The European Union appears to favour a very limited form of continuing jurisdiction. Article 8 of the European Council Regulation 2201/2003 Concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters of parental responsibility[17] sets out the principle at its article 8 that  jurisdiction over child custody and access rests with the court of a Member State where the child is habitually resident at the time the court is seized of the matter, except in child abduction situations or where another court has jurisdiction over an application for divorce, separation or annulment of a marriage involving accessory parental responsibility issues. This is consistent with the Hague Convention, 1996 discussed below. However, article 9 provides for continuing jurisdiction during a three-month period following the move for the purpose of modifying the judgment on access rights issued before the child moved, where the holder of access rights pursuant to that judgment continues to have his or her habitual residence in the Member State of the child's former habitual residence.

[35]        All of this may appear to give support to the notion that the Quebec Superior Court could retain some form of continuing jurisdiction to modify its own custody and access orders once a child has been allowed by the Superior Court to relocate to another jurisdiction with the custodial parent, subject to forum non conveniens considerations emphasizing the child’s interests.

[36]        However, though there is some merit to the idea of continuing jurisdiction, the legislative framework adopted in Quebec specifically provides otherwise. Indeed, article 3142 CCQ is clear: Quebec authorities have jurisdiction to decide as to the custody of a child (which includes access rights[18]) “provided he is domiciled in Quebec”/“pourvu que ce dernier soit domicilié au Québec.” As a result, once the Superior Court, by a final judgment, authorizes a custodial parent to move with a child for the purposes of establishing a new domicile outside Quebec, then Quebec courts cease to have jurisdiction over the child. This flows from a clear legislative policy choice[19].

[37]        At first glance, that choice may, for some, seem misguided or in need of reform. However, a close reading reveals that the Quebec approach is consistent with the Hague Convention, 1996, which provides a jurisdictional model widely accepted outside the US. Elsewhere in Canada, the dominant jurisdictional model also appears to be one which is consistent with the Hague Convention, 1996.

[38]        As an example, the jurisdiction of Ontario courts to decide these matters is set out in the Children’s Law Reform Act.[20]  Section 22 of that Act specifically provides for the jurisdiction of Ontario courts to make an order for custody or access when a child is living in Ontario with one of the parents pursuant to a court order:

[39]        This also the case in British Columbia under Division 7 of the Family Law Act:[21]

72. (2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided

(…)

 (b) if the parents are living separate and apart, with one parent

 (iii) under an order of a court or tribunal, (…)

(…)

74. (2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met:

(a) the child is habitually resident in British Columbia when the application is filed;

(…)

(Emphasis added)

[40]        It seems clear, therefore, that the Canadian approach to jurisdiction is one based on the residence of the child. This is particularly the case where the residence of the child in the province results from a court order issued in another province.

[41]        This model is largely consistent with the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“Hague Convention, 1996”). The Hague Convention, 1996, signed by Canada but not yet formally incorporated into law, sets out an international standard with respect to these jurisdictional issues. Under the Hague Convention, 1996, the court of the child’s habitual residence has jurisdiction to decide questions of parental responsibility and protective measures, including custody,[22] though it may exceptionally defer, in appropriate circumstances, to the court of a jurisdiction with which the child has a substantial connection.[23] For this purpose, the Hague Convention, 1996, specifically provides that in the event of a lawful change of a child’s habitual residence to another Contracting State, it is the authorities of the State of the new habitual residence which have exclusive jurisdiction over the child’s person or property, which includes exclusive jurisdiction with respect to rights of custody and access:[24]

[42]        The jurisdictional model supported under the Hague Convention, 1996, is obviously not the one followed in the US, which rather favours the continuing jurisdiction model of the UCCJEA described above. As noted by R. G. Spector, “[i]n the United States jurisdiction attaches at the commencement of a proceeding. If a State has jurisdiction at the time the proceeding was commenced, it does not lose jurisdiction if the child acquires a new home State prior to the conclusion of proceedings. The Convention, however, provides that jurisdiction follows habitual residence. Article 5(b) provides that if the child’s habitual residence changes, then jurisdiction also changes.”[25]

[43]        Both the US continuing jurisdiction model and the Hague Convention, 1996 model seek to avoid circumstances in which competing jurisdiction over child custody and access issues lead either to contradictory judgements or to jurisdictional disputes in the form of forum non conveniens proceedings. There are good reasons for this. It is generally agreed that duplicate jurisdiction is detrimental to the child’s interests. When duplicate jurisdiction exists, there is always a risk of dual judgments under which each parent believes he or she has a “valid” court order and acts accordingly. At the very least, as is the case here, the parents and the child may become involved in complex, difficult and often long forum non conveniens litigation which could well involve forum non conveniens proceedings in two different jurisdictions. It is precisely to avoid these difficulties that the US adopted the continuing jurisdiction model under the UCCJEA and the Hague Convention, 1996 proposes a model conferring exclusive jurisdiction to the courts of habitual residence of the child. Both models achieve the same objective: avoiding competing jurisdictions resulting in either contradictory judgments or long, costly and often futile forum non conveniens debates.

[44]        Since Quebec has adopted a jurisdictional model based on the domicile of the child which resembles the Hague Convention, 1996 model, it is incumbent on this Court to enforce that model.

[45]        Consequently (a) once the Superior Court has authorized the custodial parent to move with the child to another jurisdiction to establish a new domicile there, (b) that authorization has become a final court order no longer subject to review or appeal in Quebec, and (c) the custodial parent has effectively moved to the new jurisdiction with the child and has established his or her domicile there, the non-custodial parent must then rely on principles of private international law to ensure that the Quebec judgment on access is recognized and enforced in the new jurisdiction. The non-custodial parent cannot simply return to the Superior Court to seek either enforcement or variation of the access order.

[46]        For this purpose, the non-custodial parent can rely on the model Extra-provincial Custody Orders Enforcement Act which has been adopted in one form or another by all provinces and territories of Canada, notably in Quebec under section 131 of the Youth Protection Act,[26] and which is also reflected to some extent in article 3155 CCQ. In an international context, the non-custodial parent may also rely on the Hague Convention of 1980 respecting the civil aspects of international child abduction, which notably seeks to ensure that access rights under the law of one Contracting State are effectively respected in other Contracting States.[27] In the specific case of France, the non-custodial parent may also benefit from the Entente between Québec and France regarding judicial mutual aid in civil, commercial and administrative matters.[28]

[47]        Moreover, in order to complete this discussion of jurisdiction over child custody and access, and to avoid any misunderstanding or ambiguity, it is also useful to briefly address the jurisdiction of the Superior Court where separation or divorce proceedings are pending. As noted by author Claude Emanuelli:[29]

189. Conformément à la définition donnée par la Loi à l’action en divorce (art. 2(1)), le tribunal compétent à l’égard de celle-ci est également compétent pour statuer en matière de garde et d’aliments. Toutefois, la théorie du forum non conveniens peut venir tempérer la règle.

[48]        This is consistent with this Court’s decision in Droit de la famille — 2094,[30] discussed above, which found that if the child changes domicile in the course of separation proceedings, then the Superior Court maintains its jurisdiction until the proceedings come to an end. Similarly, moving a child under either an interim or a final judgment of the Superior Court does not impede this Court from hearing and deciding an appeal resulting from such a judgment.[31]

[49]        This jurisdictional approach tied to pending separation and divorce proceedings is itself consistent (albeit only partially) with the Hague Convention, 1996, which specifically provides for a limited jurisdictional exception under which the court properly seized of the separation or divorce proceedings of the parents of a child may, in certain circumstances, hold concurrent jurisdiction with the court of the child’s habitual residence so as to take measures directed to the protection of the person or property of the child, including custody and access rights:

[50]        It is not the subject of this appeal to decide jurisdictional issues related to child custody and access in the context of separation or divorce proceedings, a subject which raises its own complexities. It suffices for our purposes to point out that the rules governing the jurisdiction of the Superior Court in such circumstances may be different than those where no separation or divorce proceedings are pending between the parents of the child concerned.

CONCLUSIONS

[51]        Applying these principles to the case at hand, once the Monast Judgment became final and the Mother effectively relocated to Brampton, Ontario with the Child, the Quebec Superior Court was without jurisdiction to enforce or vary its access order, that jurisdiction resting with the Ontario courts which must enforce and which may vary the Monast Judgment taking into account principles of private international law, including the model Extra-provincial Custody Orders Enforcement Act as adopted in Ontario. 

[52]        For these reasons, I would allow the appeal, set aside the judgment of June 29, 2017, grant the Mother’s application in first instance and dismiss on jurisdictional grounds the Father's Application to re-establish Plaintiff’s access and for interim order, without legal costs both in appeal and in the Superior Court in light of the nature of the case.