C.(G.) v. V.-F.(T.)

C.(G.) v. V.-F.(T.)
Collection
Supreme Court Judgments
Date
1987-09-17
Report
[1987] 2 SCR 244
Case number
20257
Judges
Dickson, Robert George Brian; Beetz, Jean; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Quebec
Subjects
Action
Family law
Notes
SCC Case Information: 20257
Decision Content
C.(G.) v. V.‑F.(T.), [1987] 2 S.C.R. 244
T. V.‑F. and D. F. Appellants
v.
G. C. Respondent
indexed as: c.(g.) v. v.‑f.(t.)
File No.: 20257.
1987: June 11; 1987: September 17.
Present: Dickson C.J. and Beetz, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Family law ‑‑ Child custody ‑‑ Parental authority ‑‑ Condition for awarding custody to third person ‑‑ Whether serious cause exists, within meaning of art. 654 C.C.Q., for partial deprivation of the person having parental authority by divesting him of his custody right ‑‑ Whether criterion of child's interest stated in art. 30 C.C.L.C. allows the exercise of custody to be awarded to third person in the absence of serious cause attributable to person having parental authority ‑‑ Whether the distinction between "physical" custody and "legal" custody accepted in the civil law of Quebec.
Judgments and orders ‑‑ Res judicata ‑‑ Child custody ‑‑ Dismissal of motion for custody of children submitted by third person ‑‑ New facts ‑‑ New motion for custody allowed ‑‑ Judgment concerning children reviewable at any time whenever circumstances so justify.
In 1981, the respondent's wife filed for divorce and, with the respondent's consent, obtained interim custody of two children then thirteen and twelve years old. In 1983, knowing she was suffering from a terminal illness, the mother entrusted the care of her children to her sister and brother‑in‑law, the appellants at bar. After the mother's death, the appellants refused to relinquish the children to the respondent. The latter then took habeas corpus proceedings and the appellants replied with a motion seeking "physical" custody of the children. The habeas corpus application was allowed by the Superior Court and the appellants' motion dismissed. The judge noted that the children had lived with their uncle and aunt for only three and a half months and that the evidence disclosed no serious cause for denying custody to the father. There was no appeal from this judgment and the appellants handed the children over to respondent. When the children returned to their father's home, they ran away several times to live with the appellants. Two and a half months after the first judgment, the appellants filed a new motion for "physical" custody of the children. The motion was allowed. The trial judge rejected the argument of res judicata given the presence of new facts subsequent to the first judgment and considered that the evidence presented was sufficient to rebut the presumption of the father's right to custody. Basing his conclusion in part on the psychological report entered in evidence, he concluded that in view of the circumstances it would be contrary to the children's interest to award custody to the father. This decision was set aside by a majority judgment of the Court of Appeal. The majority of the Court held that the first judgment concerning the custody of the children had the authority of res judicata between the parties. The Court of Appeal pointed out that bad relations had existed between the father and his children from childhood and that the only new fact was the filing of the psychologist's report. On the merits, it concluded that the award of custody to a third person resulted in partial deprivation of parental authority and it considered that proof of serious cause for deprivation within the meaning of art. 654 C.C.Q. had not been made. In the Supreme Court, the appellants asked that the trial judgment be restored but the pronouncement be varied so as to award them both "legal" and "physical" custody of the children. They submitted that the evidence disclosed the existence of "serious cause" for which respondent should be partially deprived of his parental authority by divesting him of his right to custody. They argued that such evidence is provided here by respondent's inability to develop the usual ties of affection with his children.
Held: The appeal should be allowed.
(1) Res Judicata
The first judgment of the Superior Court, authorizing issuance of the writ of habeas corpus and dismissing the appellants' application for custody, did not have the authority of res judicata. It is of the essence of decisions concerning children that the decisions may be reviewed at any time, whenever circumstances so justify. In the case at bar, the evidence disclosed that the filing of the psychologist's report was not the only new fact subsequent to the first judgment. The inability of the children to adapt to family life with their father is a new circumstance warranting the filing of another motion for custody by the appellants.
(2) Deprivation of Parental Authority
Whether total or partial, deprivation of parental authority means not only that the person be precluded from exercising the attributes of parental authority, but also entails the loss of the authority itself which then ceases to be vested in the holder. It can only be ordered for serious cause and in the interest of the child. Deprivation of parental authority amounts to a value judgment in respect of its holder's conduct. A person cannot be even partially deprived unless it be concluded that he or she has been guilty, by action or inaction, of a serious and unjustified failure to perform the parental duty. Partial deprivation takes away the right of custody itself from the holder whereas the attribution of custody to a third person pursuant to art. 30 C.C.L.C. can only modify the exercise of the right. Thus, a parent who has not been deprived continues to care for his or her child at his or her home during certain weekends and during long holidays. In the case at bar, though the evidence showed clearly that it is not in the children's interest for them to continue living with their father and it is in their interest to live with appellants, the facts of the case did not show serious cause requiring the partial deprivation of respondent. The "affectional" incapacity referred to by appellants does not constitute "serious cause" within the meaning of art. 654 C.C.Q., given that it is not deliberate and has not taken the form of abandonment.
The application for partial deprivation of respondent is without basis for another reason. Article 654 C.C.Q. provides that evidence of serious cause will not suffice to deprive a person having parental authority: it must also be shown that such a measure is in the child's interest. The evidence of the latter requirement was not presented. Though they may appear slim in the short term, it is important in the interest of the children and of the father not to compromise the chances of a long‑term reconciliation.
Finally, the award of custody of a child to a third person does not entail the deprivation, even the partial deprivation, of the person having parental authority. The seriousness of deprivation and its formal nature rule out the possibility of its being implicitly imposed. It must be "declared", in other words imposed expressly, as provided in art. 654 C.C.Q.
(3) Child's Interest as Criterion for Award of Custody to Third Person
A third person can obtain custody of a child without applying to have the person having parental authority deprived of that authority. Article 30 C.C.L.C., which makes the child's interests the determining factor in decisions concerning it, authorizes a court to award custody of a child to a third person when the award is made for the child's well‑being, even in the absence of any wrongful behaviour on the part of the person having parental authority. A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure his own child's well‑being. The third person must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or mother or returns to live with them. He must also show that, unlike the person having parental authority, he is able to provide the care and affection needed by the child. Finally, though the award of custody to a third person means that a part of parental authority, for the purposes of the exercise of that part, is lost to the non‑custodial parent, this dividing up of the exercise of parental authority does not result in the loss by such a parent of the status of person having parental authority. So far as possible, the decision giving custody of the child to a third person must seek to encourage, by awarding visiting rights and the right to care for the child at the parent's home, the return of the child to its family surroundings or, if that is not possible, to re‑establish more harmonious relations. In the case at bar, the evidence amply supported the conclusion of the trial judge that the presumption in favour of the person having parental authority had been rebutted. The evidence showed clearly that in the present circumstances, it is impossible for the two young people to return to live with their father and, furthermore, that appellants are able to exercise custody of the two children properly.
The distinction between "physical" and "legal" custody is rejected. This distinction, originating in decisions of the courts, is not recognized by the Civil Code. The civil law concept of custody necessarily includes the presence of the child.
Cases Cited
Considered: Ménard v. Ménard, J.E. 81‑882 C.A., aff'g [1981] C.S. 50; Legault v. Figueroa, [1978] C.A. 82; Gohier‑Desfossés v. Gohier, J.E. 79‑23; Droit de la famille‑‑86, [1983] C.S. 1017; Droit de la famille‑‑110, [1984] C.S. 99; Droit de la famille‑‑228, [1985] C.S. 808; referred to: Droit de la famille‑‑52, [1983] C.A. 388; Droit de la famille‑‑236, [1985] C.A. 566; Droit de la famille‑‑32, [1983] C.S. 79; Droit de la famille‑‑130, [1984] C.A. 184; Cass. civ. 1ère, April 14, 1982, Bull. 1982, I, No. 125, p. 110 (Vidal case); Droit de la famille‑‑77, [1983] C.S. 692; Droit de la famille‑‑195, [1985] C.S. 349; S.A. v. J.‑C.L., [1986] R.L. 587; Hébert v. Landry, [1975] C.A. 108.
Statutes and Regulations Cited
Act to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39.
Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, ss. 39 [repl. 1980, c. 39, s. 61], 47.
Civil Code of Lower Canada, arts. 30 [ad. 1980, c. 39, s. 3], 56.3 [ad. idem, s. 7], 83 [ad. idem, s. 12], 119, 245 [rep. idem, s. 14].
Civil Code of Quebec, arts. 439, 443, 466, 528, 535, 536.1, 568, 569, 570, 611, 647, 648, 649, 653, 654, 658.
Code of Civil Procedure, R.S.Q. 1977, c. C‑25 [am. 1982, c. 17, s. 29], arts. 813.3 [am. 1983, c. 50, s. 7], 813.8 [am. 1984, c. 26, s. 20], 816, 816.1, 822.2., 822.3, 826 to 826.3.
Health Protection Act, R.S.Q. 1977, c. P‑35, ss. 42, 43.
Youth Protection Act, R.S.Q., c. P‑34.1 [formerly S.Q. 1977, c. 20], ss. 3 [repl. 1984, c. 4, s. 5], 4 [repl. idem].
Authors Cited
Deleury, Édith et Michèle Rivest. "Du concept d'abandon, du placement en famille d'accueil et de la tutelle du directeur de la protection de la jeunesse: quelques interrogations à propos du transfert des prérogatives de l'autorité parentale à une autre personne que les père et mère" (1980), 40 R. du B. 483.
Joyal, Renée. Précis de droit des jeunes. Montréal: Yvon Blais, 1986.
Joyal‑Poupart, Renée. "La loi 89 et l'autorité parentale" (1982), 13 R.G.D. 97.
Kélada, Henri. Précis de droit privé québécois. Mont­réal: SOQUIJ, 1986.
Knoppers, Bartha Maria. "From Parental Authority to Judicial Interventionism: The New Family Law in Quebec". In Contemporary Trends in Family Law: A National Perspective. Edited by K. Connell‑Thouez and B. M. Knoppers. Toronto: Carswells, 1984, pp. 205‑222.
L'Heureux‑Dubé, Claire. "La garde conjointe, concept acceptable ou non?" (1979), 39 R. du B. 835.
Marty, Gabriel et Pierre Raynaud. Droit civil: les personnes, 3e éd. Paris: Sirey, 1976.
Mazeaud, Henri et Léon et Jean Mazeaud. Leçons de droit civil, t. 1, vol. 3, 6e éd. par Michel de Juglart. Paris: Montchrestien, 1976.
Pineau, Jean. La famille: droit applicable au lendemain de la "Loi 89". Montréal: P.U.M., 1983.
Quebec. Civil Code Revision Office. Report on the Québec Civil Code: Commentaries, vol. II, t. 1. Québec: éditeur officiel, 1978.
Quebec. Civil Code Revision Office. Report on the Québec Civil Code: Draft Civil Code, vol. I. Québec: éditeur officiel, 1978.
Senécal, J.‑P. "La filiation et la déchéance de l'autorité parentale" (1982‑83), 78 F.P. du B. 83.
Simler, Philippe. "La notion de garde de l'enfant (sa signification et son rôle au regard de l'autorité parentale)" (1972), 70 Rev. trim. dr. civ. 685.
APPEAL from a judgment of the Quebec Court of Appeal, [1987] R.J.Q. 9 (sub nom. Droit de la famille‑‑320), 4 Q.A.C. 39 (sub nom. C. v. F. and F.), which reversed a judgment of the Superior Court1. Appeal allowed.
1 Mtl. Sup. Ct., No. 500‑05‑000914‑844, November 29, 1984, Meyer J.
Pierre‑François Mailhot, for the appellants.
Luce Dionne, for the children.
Émile Colas, Q.C., and Sylvie Sarrazin, for the respondent.
English version of the judgment of the Court delivered by
1. Beetz J.‑‑The appeal concerns the conditions under which the custody of a child is awarded to a third person in Quebec civil law.
I. Facts and Proceedings
2. The principal facts are not in dispute. The majority judgment of the Court of Appeal stated them as follows, sub nom. Droit de la famille‑‑320, [1987] R.J.Q. 9, at pp. 11‑12:
[TRANSLATION] Appellant G... C... married O... V... on July 2, 1966. Three children were born of this marriage: P... on March 10, 1967; H... on September 14, 1970; and X... on August 23, 1971.
At the time of the judgment of November 29, 1984 [the judgment a quo], the three children were still minors but the eldest, P..., lived in France with his maternal grandparents and was not affected by the action.
In 1981, O... V... filed for divorce and obtained interim custody of H... and X... with the father's consent. He also consented to his wife and the children occupying the family home. The same consent gave him visiting and outing rights. This consent was approved by an interim order.
Knowing that she was suffering from a terminal illness, the mother left Canada in July 1983 to return and die in her native land. She died in France on November 23, 1983. Before dying she entrusted the care of her children H... and X... to her sister and brother‑in‑law, the respondents at bar. The divorce was never granted.
Upon refusal by the respondents to relinquish the children to him, the father took habeas corpus proceedings in early 1984 and the respondents replied with a motion seeking physical custody of the children. The habeas corpus application was heard on an urgent basis by Jean‑Marie Brassard J.: he allowed it on March 16, 1984 and dismissed the respondents' motion. There was no appeal from these judgments.
The respondents then complied with Brassard J.'s judgment and returned the children to the appellant on March 25, 1984. The children, who were then thirteen and twelve years old, did not agree to this. On the first day they ran away to the respondents' home, but were again returned to the appellant's home on March 26. They again ran away.
On March 27, the respondents again returned them to the father, and the children again ran away. This time, however, the respondents refused to take them in and the police were obliged to intervene to get them back to the appellant's residence.
At the suggestion of the police, the father called in the services of the Protection de la jeunesse, which initiated an inquiry.
On May 4, the children again ran away. On May 7, a verbal agreement was reached in the office of the Centre des services sociaux du Montréal métropolitain between the appellant and the respondents to the effect that the children would remain with the latter for a month, while a psychosocial inquiry was being conducted.
Before the end of this moratorium the maternal grandparents, who reside in France, served a motion on the father asking that the children be authorized to spend two months of their holidays with them. The father opposed this request and the motion was dismissed by John Gomery J. on June 1.
The father reacted to this request by demanding that the children be returned to him before the end of the moratorium and began proceedings against the respondents for contempt of court. The respondents then filed a new motion for physical custody of the children.
On June 18, Zerbisias J. heard this motion by the respondents and the appellant's motion for contempt. She made an interim order the same day requiring the children to return to the father's home and compelling the respondents to assist in that return. She set hearing of the two actions for October 29 and 30 and appointed Ms. Luce Dionne to act as counsel for the children.
On July 12, 1984, Ms. Dionne privately commissioned Mrs. Paule Lamontagne, a psychologist, to evaluate the children's situation. This commission produced a long report dated October 25, 1984. The report was the principal basis on which Meyer J. awarded physical custody of the children to the respondents.
On October 22, the children again ran away from their father's home when they learned that hearing of the case had been postponed.
3. Following this latest running away, Tannenbaum J. of the Superior Court allowed the application for adjournment by counsel for the father and refused to order the appellants to return the children to their father until the motion had been decided. On November 29, 1984, Meyer J. allowed the appellants' motion and awarded them "physical" custody of H... and X... The pronouncement of the judgment reads as follows:
[TRANSLATION] AWARDS physical custody of the children H... and X... C... to T... V... ‑F... and D... F... ;
AWARDS legal custody to the father of the children, G... C... ;
GRANTS the father G... C... the following visiting and outing rights: a visit lasting a full weekend every three weeks, from Saturday at 9 a.m. to Sunday evening at 8 p.m., or longer if the children wish; and a week during the summer holidays, or longer if the children wish, provided Mr. C... gives one month's prior notice;
ORDERS that the school reports be given simultaneously to the F... and the father by the institutions attended by the children;
ORDERS that the father have complete freedom to write and telephone his children: the telephone to be used reasonably;
ORDERS provisional execution of this judgment notwithstanding appeal and without security.
The whole without costs.
4. Though this judgment was reversed by a majority of the Court of Appeal, the uncle and aunt have in fact continued to have custody of the children from the time of the running away on October 22, 1984, and the judgment delivered by Tannenbaum J. on October 29, 1984. At the hearing in this Court, H... and X... were sixteen and fifteen years old respectively.
II. Judgments of Superior Court and Court of Appeal
5. The custody of the children was the subject of an initial judgment by the Superior Court in March 1984: Droit de la famille‑‑125, [1984] C.S. 380. Brassard J. allowed the application for habeas corpus by the father and dismissed the motion for "physical" custody filed by the uncle and aunt. The judge noted that the children had lived with their uncle and aunt for only three and a half months and that the evidence disclosed no serious cause for denying custody to the father. Brassard J. observed that the uncle and aunt did not object to the children returning to live with their father and went on (at p. 383):
[TRANSLATION] ...the Court finds that since September 8, 1981 the children have been under the influence of their mother, their maternal grandparents and their uncle and aunt and that this environment has perhaps unwittingly prevented them from exercising the free will of a person of full age or making a judicious choice. They have therefore been psychologically deprived of their freedom and art. 851 C.C.P. must be applied.
6. Two and a half months after this judgment, the appellants again filed a motion for "physical" custody of the children in the Superior Court. Meyer J. allowed the appellants' motion and dismissed the motion for contempt of court filed by the father. Meyer J. rejected the argument of res judicata given the presence of new facts subsequent to the first judgment. He considered that the evidence presented sufficed to rebut the presumption of the father's right to custody and that the children had in no way been subject to undue influence in making their decision. Meyer J. based his conclusion in part on the psychological report entered in evidence, and the passages referred to by him must be cited:
[TRANSLATION] We have two young teenagers involved in a very difficult family situation which affects their feelings, their social relations, their concentration at school and their academic performance....These are distressed young people, so devastated emotionally that they do not know whom to turn to, and they became a replacement for their father's aggressive reaction to the separation from his wife, her subsequent departure and death.
With respect to his children, Mr. C... has manifested severe limitations which prevent him from establishing a very strong psychological tie as a parent....The children do not turn to their father, they run away from him, they even have to guard themselves against his interference... in their lives. They reject their father as the authority figure which might have been established in their early childhood....We believe that by his actions, his cold and authoritarian personality, Mr. C... has for the time being lost all chance of being a parent who is cherished and loved by his children.
...
...the children who are the most partisan and attached to one of the two parents when a couple breaks up are those between nine and twelve years old. H... and X... were just that age when the separation took place....This explains the tenacity and determination shown by these children not to live with their father. Their mother's death also hardened their loyalties. Furthermore, although these are very disturbed young people, they function quite well, recognizing their father's limitations and pitying him since, in spite of everything, "he is not happy"....they have a clear perception of the family situation and of their needs. We reject any suggestion of brainwashing or serious restrictions on their free will. The psychological tie formed between the children and the F... during the separation and the illness of O... V... C..., as well as since that time, is a healthy relationship which must transcend the merely biological tie....
...
It is in their own interest that the children H... and X... require:
Stability: The F... represent a continuity of the maternal home in which the children lived after the separation. The children are aware of this and escape there in order to feel secure and protected. Keepsakes of their mother are to be found there.
Love and affection: The F... are able to demonstrate affection and receive it from the children. The father's love is dependent on marks of respect and obedience.
...
Respect for the maternal image: The F... loved and supported the children's mother and can help X... and H... to retain a positive idea of her. This is an essential aspect of the development of their personal identities during their adolescent years.
Respect for the paternal role: The F... favour visits by the children to the father....
A harmonious family life: The F... have welcomed the children and made a place for them, where they feel at home and accepted. T... V... , their mother's sister, has acted as a substitute mother for H... and X...
To be understood as teenagers: The father regards the needs of teenagers as suspect and as likely to undermine his authority. The F... recognize and respect their needs and permit communication which encourages self‑expression and independence.
conclusions:
Despite a biological tie between Mr. C... and his two children, no strong, effective and sound psychological tie has developed. The separation and the illness and death of O... V... C... , and the legal proceedings which returned the children to their father, have driven them further away from the father.
A psychological parental tie has been created between them and the F... , and this tie is recognized and approved by the two children, aged thirteen and fourteen.
We feel that the C... children...went where they felt welcome. Children do not usually run away from places where they are loved, wanted and encouraged. [Emphasis added by trial judge.]
7. The trial judge expressed his agreement with the psychologist and concluded that in view of the circumstances it would be contrary to the children's interest to give the father custody:
[TRANSLATION] The children are now nine months older than they were at the time of Brassard J.'s judgment. They are thirteen and fourteen years old respectively. The evidence clearly established that their attitude to their father is more negative now than it was in March, and they are more categorical in their refusal to live with him. The evidence as a whole showed that their decision was arrived at as freely as it could be in the unfortunate circumstances of this case. The Court considers that if it awarded physical custody now to the father and the children were given into his care, more running away would take place in the future as has occurred in the past, and relations between the father and the children could only worsen with harmful consequences that would be unavoidable for everyone.
It is certainly not my intention in this judgment to question the respondent C.... 's character, rather it is simply to note that bad relations now exist between him and the two children. At the children's present stage in life, it would be very risky to go against their wishes when these have been so clearly expressed. The father does not wish to lose his children, and I agree entirely with him, in the children's interest and in his own. However, in the present circumstances the best way of losing them would be to award custody to him at this time, in view of their current attitude to their father and vice versa, and this will be true until great changes occur in the attitudes and behaviour of everyone concerned. [Emphasis added.]
8. This decision was set aside by a majority judgment of the Court of Appeal. Nichols J.A., who wrote the majority opinion, considered that Brassard J.'s judgment had the authority of res judicata between the parties and that, like an appeal, the judgment a quo had the effect of reversing an earlier decision based on the same facts. He pointed out that bad relations had existed between the father and his children from childhood and that the only new fact was the filing of the psychologist's report. He said that the report would have contained the same conclusions if it had been filed at the first hearing.
9. Nichols J.A. also said he considered that the appeal should be allowed on the merits. When the mother died, full parental authority vested in the father under art. 648 C.C.Q. The motion by the uncle and aunt had the effect of depriving the father of his rights. Nichols J.A. rejected the distinction between physical and legal custody (at p. 12):
[TRANSLATION] ...this subtle distinction resorted to by the respondents in their motion has the practical effect of stripping the father of his parental authority or creating constant conflicts of authority which are certainly not in the children's interest.
...
...parental authority is usually exercised where the children are. Their physical presence is a condition of the authority exercised over them. Parental authority is a day‑to‑day matter. It cannot be separated from physical presence.
10. He pointed out that this distinction is also not contained in the Civil Code of Quebec. After citing art. 570 C.C.Q., he went on (at p. 13):
[TRANSLATION] Accordingly, the spouse who is deprived of custody retains only the right to watch over the children. He may no longer participate in decisions regarding their maintenance and education as parents are authorized to do by art. 648 C.C.Q., cited above.
11. In the view of Nichols J.A., this situation results in partially depriving a parent of his authority. It follows that (at p. 14):
[TRANSLATION] A third person who is seeking to deprive a father and mother of the parental authority recognized by law must ask the courts for total or partial deprivation by showing serious cause and the interest of the child.
Article 654 C.C.Q. states this rule clearly:
The court may, for serious cause and in the interest of the child, on the motion of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be totally or partially deprived of such authority.
There must accordingly be serious cause for which the person having parental authority is responsible, and the deprivation of authority must be in the child's interest. Both conditions must necessarily be met.
12. The majority of the Court of Appeal did not consider that the adoption of art. 30 C.C.L.C. in 1980, requiring that each decision be taken in the child's interest, has altered this requirement. Nichols J.A. observed (at p. 15):
[TRANSLATION] It may be that in the case at bar the uncle and aunt are in a better position than the father to ensure a positive and productive relationship with the children, but the father should not be deprived of part of his parental authority unless it can be shown that he is unworthy to have the custody of his children or is unable to perform his duties properly.
13. Nichols J.A. concluded that proof of "serious cause" for deprivation under art. 654 C.C.Q. had not been made. He felt that the father had not had a real opportunity to show that he was able to carry out his obligations properly since the divorce petition in 1981 and that all the people around the children had joined forces against him when he tried to exercise full custody of the children after his wife's death.
14. L'Heureux‑Dubé J.A., as she then was, dissenting, considered that the new facts stated by the trial judge provided a basis for the motion by the uncle and aunt and that the matter was not res judicata. She noted that the Court of Appeal had very limited powers of intervention in child custody matters and also expressed the view that parental authority and the biological tie no longer take priority over every other consideration in awarding custody. The determining factor in such matters is the general well‑being of the child in psychological, spiritual and emotional terms. Even if the father is not an unworthy man in the ordinary sense, L'Heureux‑Dubé J.A. was of the following opinion (at p. 25):
[TRANSLATION] The fact that a man is responsible and a good citizen, as the appellant has shown that he is, does not make him, solely for that reason, a father who is able to have custody of his children. The yardstick here is not the parent's general conduct but his or her conduct in relation to the children, in terms of their needs and their general well‑being. Beyond material considerations, which are undoubtedly important, are the much more essential considerations of a spiritual, emotional and psychological nature, the tie of affection in particular. That is what the trial judge considered here, and in so doing made no error of principle.
15. Like the trial judge, L'Heureux‑Dubé J.A. dismissed the argument that the uncle and aunt had exercised a harmful influence over the children. She considered that the Superior Court had ruled correctly on the "physical" custody of the children and would have been prepared to award "legal" custody to the appellants to the extent that this concept was applicable.
III. Points at Issue
16. The appellants are asking this Court to restore the trial judgment, but vary the pronouncement so as to award them both "legal" and "physical" custody of H... and X..., as relations between respondent and his two children have not improved since the trial judgment and there is almost no further hope of reconciliation before the children attain their majority. At the hearing, counsel for the appellants conceded that the award of custody to a third person would amount to a declaration of partial deprivation and that it was therefore necessary to establish the existence of serious cause within the meaning of art. 654 C.C.Q. for giving custody to someone other than the person having parental authority. This concession on a point of law is not binding on the Court. Moreover, counsel for the respondent did not rely on this concession and, both in his submission and in his argument, sought to show that the child's interest alone cannot deprive the person having parental authority of the exercise of his or her right of custody. The Court is therefore entirely free to decide the point.
17. I would frame the three questions raised by the appeal as follows:
1. Does the first judgment of the Superior Court have the authority of res judicata?
2. Is there present, in the case at bar, "serious cause" within the meaning of that term at art. 654 C.C.Q. which may result in the total or partial deprivation of the person having parental authority?
3. Does the criterion of the child's interest stated in art. 30 C.C.L.C. allow custody to be awarded to a third person in the absence of "serious cause" attributable to the person having parental authority?
IV. Res Judicata
18. Counsel for the respondent relied essentially on the majority reasons of the Court of Appeal in arguing that the judgment of Brassard J. has the authority of res judicata and that there were no new facts to justify the filing by the appellants of a second motion for custody some two and a half months later. With respect, I cannot conclude as respondent has suggested that the only new fact arising since the first judgment was the filing of the psychologist's report.
19. The main reason why Brassard J. authorized issuance of the writ of habeas corpus was that the children were psychologically deprived of their freedom. This obstacle was removed when they were returned to their father's home, but the state of relations between the respondent and his children deteriorated nevertheless. Further, when the writ of habeas corpus was issued, Brassard J. did not know what the impact of returning the children would be on the ties between them and their father. At that time, H... and X... had not lived with their father for nearly three years. The children ran away five times within a period of seven months of their return to their father's home, until Tannenbaum J. allowed the children to live with their uncle and aunt pending a ruling on the motion. Meyer J. correctly decided that the inability of the children to adapt to family life with their father was a sufficient new fact.
20. It is of the essence of decisions concerning children that these decisions may be reviewed at any time, whenever circumstances so justify, and the course of events as indicated by the evidence in the case at bar satisfies me that the matter is not res judicata.
V. Deprivation of Parental Authority
21. Ordinarily, parental authority rests with the parents. The Civil Code of Quebec specifies the scope of the rights and duties arising out of their function at art. 647 C.C.Q.:
647. The father and mother have the rights and duties of custody, supervision and education of their children.
They must maintain their children.
22. The father and mother are both required to perform the duties incumbent on them as a consequence of parental authority:
648. The father and mother exercise parental authority together.
If either parent dies, is deprived of parental authority or is unable to express his will, the other parent exercises parental authority.
23. Article 443 of the Civil Code of Quebec and s. 47 of the Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, specify how this duty is to be performed when the parents are married:
443. The spouses together take in hand the moral and material direction of the family, exercise parental authority and assume the tasks resulting therefrom.
47. Husband and wife have, in the marriage, the same rights, obligations and responsibilities.
Together they provide the moral guidance and material support of the family and the education of their common off‑spring.
24. However, the person having parental authority can delegate its exercise as provided in art. 649 C.C.Q., as well as certain provisions of the Youth Protection Act, R.S.Q., c. P‑34.1, regarding the application of voluntary measures. The person having parental authority can also have the exercise of the rights associated with his parental authority limited by a decision of the courts. A judgment may have the effect of depriving the holder of the exercise of part of his or her rights although such deprivation is not ordered as a result of any wrongful act by the holder: this is so when a judgment of separation as to bed and board or a divorce decree awards custody to one of the parents or, as I will indicate in the next heading, when the child's interest requires that custody be awarded to a third person.
25. The Civil Code of Quebec also provides for the possibility of totally or partially depriving the person having parental authority of that authority. Whether total or partial, such deprivation means not only that the person is precluded from exercising the attributes of parental authority, but also entails the loss of the authority itself which then ceases to be vested in the holder. It can only be ordered for serious cause and in the interest of the child:
654. The court may, for serious cause and in the interest of the child, on the motion of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be totally or partially deprived of such authority.
26. The appellants submitted that in the case at bar the evidence disclosed the existence of "serious cause" for which the respondent should be partially deprived of his parental authority by divesting him of his right of custody. In particular, they argued that it is sufficient to show the inability of the person having parental authority to perform his or her duties properly, without it being necessary to establish his or her unworthiness as well. They argued that such evidence is provided here by the respondent's inability to develop the usual ties of affection with his children. The appellants further said that partial deprivation does not have to be expressly declared by a court as it can be inferred from the order awarding custody to a third person. They cited as authority for this the opinion of the Court of Appeal in the case at bar as well as in Droit de la famille‑‑52, [1983] C.A. 388, and Droit de la famille‑‑236, [1985] C.A. 566.
27. Counsel for the appellants seems to have been prompted to make this application for the partial deprivation of the respondent by the belief that the appellants could not legally obtain the custody without, at the same time and as a necessary consequence of the demand for custody, asking for partial deprivation of the father. This belief is based on the judgment of the Court of Appeal in the case at bar, the merits of which on this point were conceded by counsel for the appellants, as I said earlier, and on the two Court of Appeal judgments cited earlier, Droit de la famille‑‑52 and Droit de la famille‑‑236. Perhaps the intention was by this means t