BIJURALISM IN SUPREME COURT OF
CANADA JUDGMENTS SINCE THE ENACTMENT
OF THE CIVIL CODE OF QUEBEC
Family law is a field in which there is extensive litigation, although mostly at levels lower than the country's highest court. The Supreme Court does however hear cases when the issue is the interpretation of concepts in international documents that Canada is a party to, or to discuss general principles such as the intervention of the state in matters of private law. In the judgments discussed below, the principles governing child protection, custody and support are considered in specific contexts.
The first two cases discussed in this section involve the principles governing the concept of "child custody" where the facts involve more than one country.
The Court has observed that the right of custody has evolved in the same direction in both systems of law. The principle is that the custodial parent, under both systems, has the right of custody, which includes the right to choose the child's place of residence, although this question arises in the context of material change in the child's situation.
The third decision raises the question of the parens patriæ authority of the state and of the common law courts with respect to the protection of children.
In Gordon v. Goertz, the Supreme Court analyzed the concept of child custody in the context of the custodial parent's change of residence. In that case, the Court held by a majority decision that the mother would retain custody of the child despite her intention to move to Australia and that the father would be able to exercise his visiting rights not only in Australia but also in Canada.
McLachlin J., writing for the majority, held that it must first be proven that a child's situation has undergone a material change for a judge to be able to render a decision based on the best interests of the child in light of the new situation.
While subscribing to McLachlin J.'s decision, L'Heureux‑Dubé J. emphasized that the notion of custody was no longer a controversial issue in Canadian law, relying on a certain number of uncontroversial basic premises to justify her analysis. She concluded that the decision as to the child's place of residence was within the custodial parent's powers and, on this point, disagreed with McLachlin J.'s view that evidence of the existence of a material change could undermine this right.
L'Heureux‑Dubé J. briefly reviewed the concept of custody at common law, in the Divorce Act and in provincial statutes, as well as under the Civil Code of Quebec, and also considered the relevant international instruments and the principles applicable in other jurisdictions.
After reviewing the common law, she concluded:
Thus, custody at common law has been historically recognized as a wide and inclusive concept which grants the person entrusted with it, inter alia, the power to choose where the child shall live, subject to the right of the non-custodial parent to oppose such choice by seeking a variation order of the custody or access terms and such other limitations as may be warranted on the facts of the case.
With respect to the Divorce Act, she contended that the notion of custody is well established in case law and among Canadian writers and that the act gives no reason to doubt that Parliament had any intention but to attribute to the notion of custody the definition recognized at common law. She held that jurisprudence in Quebec and other jurisdictions recognizes that the right to decide on a child's place of residence is included in the powers of the custodial parent as an accessory to custody.
The definitions of custody given in provincial statutes are also consistent with the notion of custody accepted in common law and under the Divorce Act.
The Civil Code of Quebec does not define the notion of custody, although it is generally recognized that the parental authority includes the right to decide on the child's place of residence. The person who has custody of the child in a case of divorce or separation has exclusive decision-making power in this matter and with respect to all matters relating to the child. L'Heureux‑Dubé J. referred to W. (V.) v. S. (D.)  2 S.C.R. 108, in which she conducted a detailed analysis of the notion of custody. She wrote:
That is not to say, however, that the non-custodial parent is deprived of all exercise of parental authority: so far as it is not incompatible with the rights of the custodial parent, the non-custodial parent must exercise his duties of supervision and education towards the child by means of the right to access […]; (article 605 C.C.Q. (previously article 570)), as well as the right to refer any litigious matter relating to the exercise of the parental authority to the Court (article 604 C.C.Q. (previously article 653)).
She observed that, with respect to the right to choose a child's place of residence, custody is interpreted similarly in civil law, under international instruments and in other common law and civil law jurisdictions.
L'Heureux‑Dubé J. emphasized that, in view of this exclusive power of the custodial parent, the onus is thus on the non-custodial parent to show that the move is not in the best interests of the child and that custody and visiting rights must therefore be changed.
In V.W. v. D.S., the Court considered the right of custody in relation to the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35. As the Convention's object is to give effect to the right of custody, the relocation of or failure to return a child in contravention of this right automatically triggers the mandatory return mechanism provided for by the Convention. 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 determined in accordance with the law of the state of the child's habitual place of residence.
In Canada, all the provinces with the exception of Quebec have incorporated the Convention in a domestic statute. Quebec has enacted the Act respecting the civil aspects of international and interprovincial child abduction, R.S.Q., c. A‑23.01, the purpose of which is to give effect to the Convention.
The notion of custody within the meaning of the Civil Code of Quebec, at common law (according to McIntyre J., in King v. Low  1 S.C.R. 87, at 93, the right of custody has evolved along similar lines in the two systems), and in the Divorce Act does not differ from the notion of custody as it is meant in the Convention and in the Quebec Act respecting the civil aspects of international and interprovincial child abduction. Under these various systems, the notion is given a broad meaning, independent of visiting rights, which encompasses, in particular, the right to decide on the child's place of residence.
In Quebec, the applicable test in custody matters, apart from cases of divorce and physical separation, is stated in article 30 C.C.L.C. (now article 33 C.C.Q.): "the child's interest and the respect of his rights". In cases of physical separation, the Court has a duty under article 569 C.C.L.C. (now article 514 C.C.Q.) to rule on custody of the children "in their interest and in the respect of their rights".
The Court held that it follows from this broad notion of custody that deciding on the child's place of residence is within the powers of the custodial parent, subject to the non-custodial parent's right to apply to the Court to vary the terms and conditions of custody and access after the child is removed.
It was held in this case that, since the child was domiciled or resided in Quebec with the father, under art. 70 of the Quebec Code of Civil Procedure and Quebec conflicts rules, the Superior Court had jurisdiction to hear the motion for custody of the child. The judge of first instance relied on the act (which incorporates the Convention) rather than on the Civil Code of Quebec, but this difference is of no consequence as the tests are the same in both.
The Court briefly considered the origins of the general powers of the Superior Court of Quebec which do not derive from the parens patriæ of the superior courts of the provinces as recognized at common law, but rather from article 46 C.C.P. Absent a specific statutory provision, this authority, for historical reasons, would fall exclusively to the Queen's representative, the lieutenant-governor.
The parens patriæ authority of the state was also at issue in the Supreme Court's recent decision in Winnipeg Child and Family Services v. K.L.W, which concerned child protection.
L'Heureux‑Dubé J. emphasized that the state has assumed both the power and the duty to intervene to protect children's welfare because children are vulnerable and are unable to exercise their rights independently. This responsibility finds expression in the parens patriæ jurisdiction of the common law courts, and is also found in Book 1 of the Civil Code of Quebec, S.Q. 1991, c. 64, and in every provincial and territorial child protection statute.
In this case, the appellant contested the constitutionality of a provision of the Child and Family Services Act which enabled Winnipeg Child and Family Services to apprehend a child without a warrant, even in the absence of an emergency, where it is satisfied that there are "reasonable and probable grounds for believing there is a child who is in need of protection".
Arbour J., in dissent, found that, even if the Court and child protection agencies exercise parens patriæ authority over children, the interest of society requires that government players not remove children from the custody of their parents without legal grounds. Arbour and McLachlin JJ., dissenting, concluded that the impugned provision of the Child and Family Services Act is incompatible with section 7 of the Canadian Charter of Rights and Freedoms since it interferes with the right to security of the person contrary to the principles of fundamental justice and is not justified, under section 1, in a free and democratic society.
L'Heureux‑Dubé J., writing for the majority, held that, in view of the fact that the Child and Family Services Act provides for the removal of a child from that child's parents, it interferes with the right to security of the person. However, in the social and legislative contexts in issue in this case, this interference is in accordance with the principles of fundamental justice and does not violate section 7 of the Charter. The provision is therefore constitutional, and in the case at bar the intervention by the state was justified to protect the child.
In Bracklow v. Bracklow, McLachlin J. held that a spouse has an obligation to support a sick or disabled ex-spouse in addition to the compensation to which the ex-spouse is entitled for losses resulting from the marriage.
The obligation of support in Canada is governed by the provisions of the Divorce Act. The civil and common law applied before that act came into force and still form the backdrop to it.
There are two competing theories regarding support. The first, which more resembles the common law and civil law conceptions that existed prior to the Divorce Act, and is based on a mutual obligation of support, emphasizes the interdependence created by marriage. The second, the clean-break model, which is more consistent with the modern vision of the Divorce Act, emphasizes the independence of each party to the union.
Parliament and the provinces have recognized both models in their statutes. It is well-settled case law that compensation is the main reason for awarding support, but McLachlin J. found that the obligation to provide support can also be said to exist in certain circumstances where fairness requires it, as was the case in this instance.
In family law, certain principles have developed analogously in each of the traditions in Canada. In the law of contracts, the Court has held that, although this branch of the law must be interpreted under each of the legal systems, certain notions have been applied in a similar way in both. The court may therefore compare judgments from another jurisdiction in the search for a fair solution as a matter of interest.
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