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 ‑‑ Custody ‑‑ Variation -- Custodial parent breaching child residency clause in agreement for corollary relief ‑‑ Application for change of custody by non-custodial parent ‑‑ Best interests of the child ‑‑ Evidence.
The agreement for corollary relief entered into by the parties and approved by the divorce judgment granted custody to the mother. This agreement was subsequently amended and the new agreement provided that the mother, who retained custody of the child, could not live with the child outside the province of Quebec until the child reached the age of eight unless the parties so agreed. A few months later, the mother settled permanently in France with the child, then three and a half years old. The father filed an application for change of custody in the Superior Court. This application was dismissed but the Court of Appeal reversed this decision and awarded custody to the father. The mother did not appear before the Superior Court or the Court of Appeal but was represented by counsel. The father, after the judgment of the Court of Appeal, obtained an order from the French courts for the return of the child but the mother and child cannot be found.
Held: The appeal should be dismissed.
Since the mother's departure for France, the Quebec courts have not had all the information needed to determine the child's best interests which remain the applicable test in this matter. As the Court only has the evidence presented by the father, which tends to show that he is able to care for the child properly, and has before it the mother's conduct, it has no alternative but to uphold the judgment of the Court of Appeal.
Statutes and Regulations Cited
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35.
APPEAL from a judgment of the Quebec Court of Appeal, [1993] R.J.Q. 1728 (sub nom. Droit de la famille ‑‑ 1826), 57 Q.A.C. 241, allowing an appeal from a judgment of the Superior Court rendered October 26, 1992, dismissing the respondent's motion for change of custody. Appeal dismissed.
François Luc Coallier and Guy Ruel, for the appellant.
Jean Baillargeon and Mireille Gourdeau, for the respondent.
English version of the judgment delivered by
1 The Court ‑‑ This case concerns a little girl, S., who was three and a half years old when her custody was awarded by consent to her mother, the appellant, after the parties had separated. She is now six years old and has always lived with her mother.
2 Following their separation in 1989 the parties settled the various measures of relief corollary to the divorce by an agreement which was subsequently approved by judgment. This agreement, while awarding S.'s custody to the mother, imposed on her the duty to inform the father in advance of any plans to move, and the latter was also awarded visiting rights. In 1991, when the appellant decided she would like to settle in France, where she had been born and where the parties were married, the father filed an application for a change of custody in the Quebec Superior Court. The mother did not carry out her plans but this incident prompted the parties, while leaving the custody arrangements unchanged, to alter the agreement concluded earlier to include conditions as to the place of the child's residence. The relevant clause of this new agreement, which was approved by a Superior Court judgment on November 6, 1991, reads as follows:
[translation]
17)Unless the contrary is mutually agreed upon, the mother may not live with [S.] in France or elsewhere outside of Quebec or in any other place where the father might lose his rights of access to the child, so long as [S.] is less than eight years old;
3 In July 1992 the mother spent the summer in France with S. as she was allowed to do by the latest agreement signed by the parties. However, she failed to return to Canada on the scheduled date and decided to settle permanently in France. The father was then able to talk to the child on the telephone occasionally but he never saw S. again and since 1994 has had no news of her: at present he has no idea where the mother and child are living. On August 25, 1992, he accordingly filed an application in the Quebec Superior Court for a change of custody. On September 18, 1992, the day scheduled for the hearing, Boisvert J. granted an adjournment as the mother was absent, but ordered her to appear in court for the hearing on the merits and required her to allow telephone contact between the father and the child. When the case was again called for hearing on October 16, 1992, the mother was still absent but was represented by counsel, who proceeded to cross‑examine the witnesses called by the father. On October 26, 1992, Boisvert J. dismissed the application. By a judgment on June 3, 1993, the Court of Appeal reversed this decision and awarded custody of the child to the father ([1993] R.J.Q. 1728, 57 Q.A.C. 241): hence the appeal at bar by the mother to this Court.
4 Here one must mention certain complications brought to our attention which are relevant to the decision we have to make.
5 In October 1992, the mother initiated proceedings in France to amend the parties' agreement of November 1991 so she could live with the child in France. The trial court refused to apply the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, which the father cited in opposition. Once the Court of Appeal judgment became executory, to which the appellant made no objection by filing an application for a stay of execution, the father obtained an order for the return of the child pursuant to the Convention. When the mother appealed this order, the Court of Appeal of Montpellier declared on May 9, 1994 that in view of the agreement concluded by the parties in 1991 the failure to return the child had been unlawful from August 13, 1992. The Court then affirmed the order to return the child to Quebec. This judgment may be currently on appeal in the Court of Cassation in France. Despite this, there is apparently in effect a search warrant issued by Interpol for the mother and the child.
6 The result of this series of events is that since 1992 the Quebec courts have been partly denied the information needed to determine the child's best interests, which remain the applicable test in this matter. Although the awarding of custody clearly should not be a means of punishing a parent for failure to observe an agreement and, in the case at bar, a court judgment, the fact remains that the Quebec courts could not add to insufficient evidence and so could only decide on the basis of the evidence they had. This is what the Court of Appeal did and this Court cannot conclude that it erred in so doing. In seeking to place herself beyond the reach of the law in both Quebec and France, the appellant has flaunted the authority of the courts and prevented them from properly exercising their protective function in respect of the child. As this Court only has the evidence presented by the father, which tends to show that he is able to care for the child properly, and has before it the mother's conduct, it has no alternative but to dismiss the appeal.
7 For these reasons, the appeal is dismissed with costs.
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