January 26, 2018
Schrager, Mainville, Hogue
Appeal from a judgment of the Superior Court dismissing a declinatory exception. Allowed.
In 2012, the Superior Court awarded custody of X, the parties’ son, to the mother and authorized their move to Ontario. In 2017, the father, who had not exercised his access rights since 2013, brought proceedings in Quebec to restore them. The mother presented a declinatory exception arguing that the Quebec courts did not have jurisdiction over the issue of access rights since X was now domiciled in Ontario. The trial judge recognized that the Superior Court would not usually have jurisdiction over a child domiciled in Ontario but that the situation arose from a Superior Court judgment that authorized the child’s move to that province. He 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.
Under art. 3142 of the Civil Code of Québec, a Quebec authority has jurisdiction to rule on the custody of a child provided that child is domiciled in Quebec. Consequently, once the Superior Court judgment authorizing the custodial parent to move with the child to establish a new domicile outside Quebec is final, Quebec courts cease to have jurisdiction over that child. This approach is consistent with the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded on October 19, 1996, which gives jurisdiction to the authorities of the child’s new habitual residence following a removal that is not wrongful. Consequently, once the Superior Court has authorized a move for the purpose of establishing a new domicile, the judgment rendered is no longer subject to appeal and the custodial parent has effectively moved with the child, the non-custodial parent must rely on principles of private international law to ensure that the judgment on access is recognized and enforced. If the move occurs while separation or divorce proceedings are pending, Quebec courts will maintain jurisdiction until the proceedings come to an end. In this case, the Quebec courts do not have jurisdiction to enforce or vary the access order. That jurisdiction now rests with the Ontario courts.
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