W. (V.) v. S. (D.)

W. (V.) v. S. (D.)
Collection
Supreme Court Judgments
Date
1996-05-02
Report
[1996] 2 SCR 108
Case number
23765
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Family law
Notes
SCC Case Information: 23765
Decision Content
W. (V.) v. S. (D.), [1996] 2 S.C.R. 108
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 La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
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.
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.
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 February 1990, 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.
Held: The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The reasons of L'Heureux‑Dubé J. are agreed with, subject to McLachlin J.'s comments in Goertz on rights and obligations of custodial parents.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: 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.
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.
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 "Québec 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.
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.
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.
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.
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.
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 Québec, 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 McLachlin J.
Referred to: Gordon v. Goertz, [1996] 1 S.C.R. 27.
By L'Heureux‑Dubé J.
Applied: Thomson v. Thomson, [1994] 3 S.C.R. 551; referred to: Messier v. Palomba, [1992] R.D.J. 548; Équipements Lefco Inc. v. Roche Ltée, [1993] R.D.J. 234; Hamel v. Cie Trust Royal, [1990] R.J.Q. 2178; Montana v. Développements du Saguenay Ltée, [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 Québec [en. S.Q. 1980, c. 39, s. 1], arts. 569, 570, 647, 650, 653.
Civil Code of Québec, 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 privé québécois. Toronto: Butterworths, 1980.
Castelli, Mireille D. Le nouveau droit de la famille au Québec: projet de Code civil du Québec et Loi sur le divorce. Sainte‑Foy, Qué.: Presses de l'Université Laval, 1993.
Ducharme, Léo. Précis de la preuve, 4e éd. Montréal: Wilson & Lafleur, 1993.
Eekelaar, John M. “International Child Abduction by Parents” (1982), 32 U.T.L.J. 281.
Farquhar, Keith B. “The Hague Convention on International Child Abduction Comes to Canada” (1983), 4 Can. J. Fam. L. 5.
Groffier, Ethel. Précis de droit international privé québécois, 4e éd. Cowansville, Qué.: Yvon Blais, 1990.
Groffier‑Atala, Ethel. “De la puissance paternelle à l'autorité 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'arrêt Eve et le droit québécois” (1987), 18 R.G.D. 643.
Lesage, Robert. “Garde ou autorité parentale; l'emprise de la sémantique” (1988), 91 R. du N. 46.
L'Heureux‑Dubé, Claire. “La garde conjointe, concept acceptable ou non?” (1979), 39 R. du B. 835.
Mayrand, Albert. “La garde conjointe, rééquilibrage de l'autorité parentale” (1988), 67 Can. Bar Rev. 193.
McLeod, James G. Case Comment on Thomson v. Thomson (1994), 6 R.F.L. (4th) 406.
Mignault, Pierre Basile. Le droit civil canadien, t. 2. Montréal: Whiteford & Théoret, 1896.
Morin, Michel. “La compétence parens patriae et le droit privé québécois: un emprunt inutile, un affront à l'histoire” (1990), 50 R. du B. 827.
Ouellette, Monique. Droit de la famille, 3e éd. Montréal: Thémis, 1995.
Payne, Julien D. Payne on Divorce, 3rd ed. Scarborough, Ont.: Carswell, 1993.
Pineau, Jean. La famille -- Droit applicable au lendemain de la «Loi 89». Montréal: Presses de l'Université de Montréal, 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 Mark A. 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-Dubé 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-Dubé and Gonthier JJ. were delivered by
2 L'Heureux‑Dubé J. ‑‑ 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 December 27, 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 April 25, 1988, the respondent was granted supervised access. In a divorce judgment dated September 29, 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 December 15, 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 August 2, 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 Article 3 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 Article 7 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 25 October 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 Québec 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 QUÉBEC 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 Québec 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 Québec and the rights of custody and access under the law of Québec 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 Québec 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 Québec 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 Québec 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 Québec 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 Québec, 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 Québec, 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 Québec (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, th