Savard, Marcotte, Moore

Appeal from a judgment of the Superior Court granting a declinatory exception, declaring inadmissible an application for child custody, and ordering the immediate return of the child to Turkey.  Allowed.

The parties were in a de facto relationship and had a daughter, born in 2017. In 2023, while staying in Quebec with the child, the mother informed the father that she was not returning to Turkey with their daughter.

The trial judge held that the mother keeping the child in Quebec was a wrongful retention under the Act respecting the civil aspects of international and interprovincial child abduction (CQLR, c. A-23.01). Moreover, as the mother’s residence was in Quebec when she filed her application to allocate parenting time -- and even when the child was retained -- the judge held that Quebec law applied to determine custody according to Turkish private international law. The father therefore had rights of custody based solely on the joint exercise of parental authority.

The time to determine the mother’s residence is set out in section 3 of the Act and flows from the Act’s objective to maintain the status quo, i.e., the rights of custody actually exercised at the time of the wrongful removal or retention. This objective means that any connecting factor must necessarily be determined at the time of the removal or retention, to the exclusion of any subsequent event that might disrupt the status quo. The judge therefore erred in law when she held that the mother’s residence, for the purpose of applying Turkish law, had to be determined on the date the mother filed her application to allocate parenting time, not the date the child was retained.

The judge also made a palpable and overriding error when she held that the mother had changed her habitual residence on the date of the retention. At that time, the mother had not yet signed a lease, registered the child in school, or signed an employment contract. She was on a temporary trip to Quebec and there was no trace of “continuity” of residence in Quebec. Merely searching for a new residence cannot change her habitual residence. Even if, before the child was retained, the appellant had considered moving to Quebec, it is impossible to conclude that she had already established her habitual residence here. Thus, before the retention, the parties’ common residence was in Turkey such that Turkish law governed the determination of custody. Accordingly, the respondent did not have rights of custody under Turkish law and the mother could determine the child’s place of residence without his consent. Therefore, the retention was not wrongful, and, accordingly, the custody debate must take place before the Quebec courts according to Quebec law.

Text of the decision: http://citoyens.soquij.qc.ca