C.(G.) v. V.‑F.(T.), [1987] 2 S.C.R. 244
T. V.‑F. and D. F. Appellants
v.
G. C. Respondent
indexed as: c.(g.) v. v.‑f.(t.)
File No.: 20257.
1987: June 11; 1987: September 17.
Present: Dickson C.J. and Beetz, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Family law ‑‑ Child custody ‑‑ Parental authority ‑‑ Condition for awarding custody to third person ‑‑ Whether serious cause exists, within meaning of art. 654 C.C.Q., for partial deprivation of the person having parental authority by divesting him of his custody right ‑‑ Whether criterion of child's interest stated in art. 30 C.C.L.C. allows the exercise of custody to be awarded to third person in the absence of serious cause attributable to person having parental authority ‑‑ Whether the distinction between "physical" custody and "legal" custody accepted in the civil law of Quebec.
Judgments and orders ‑‑ Res judicata ‑‑ Child custody ‑‑ Dismissal of motion for custody of children submitted by third person ‑‑ New facts ‑‑ New motion for custody allowed ‑‑ Judgment concerning children reviewable at any time whenever circumstances so justify.
In 1981, the respondent's wife filed for divorce and, with the respondent's consent, obtained interim custody of two children then thirteen and twelve years old. In 1983, knowing she was suffering from a terminal illness, the mother entrusted the care of her children to her sister and brother‑in‑law, the appellants at bar. After the mother's death, the appellants refused to relinquish the children to the respondent. The latter then took habeas corpus proceedings and the appellants replied with a motion seeking "physical" custody of the children. The habeas corpus application was allowed by the Superior Court and the appellants' motion dismissed. The judge noted that the children had lived with their uncle and aunt for only three and a half months and that the evidence disclosed no serious cause for denying custody to the father. There was no appeal from this judgment and the appellants handed the children over to respondent. When the children returned to their father's home, they ran away several times to live with the appellants. Two and a half months after the first judgment, the appellants filed a new motion for "physical" custody of the children. The motion was allowed. The trial judge rejected the argument of res judicata given the presence of new facts subsequent to the first judgment and considered that the evidence presented was sufficient to rebut the presumption of the father's right to custody. Basing his conclusion in part on the psychological report entered in evidence, he concluded that in view of the circumstances it would be contrary to the children's interest to award custody to the father. This decision was set aside by a majority judgment of the Court of Appeal. The majority of the Court held that the first judgment concerning the custody of the children had the authority of res judicata between the parties. The Court of Appeal pointed out that bad relations had existed between the father and his children from childhood and that the only new fact was the filing of the psychologist's report. On the merits, it concluded that the award of custody to a third person resulted in partial deprivation of parental authority and it considered that proof of serious cause for deprivation within the meaning of art. 654 C.C.Q. had not been made. In the Supreme Court, the appellants asked that the trial judgment be restored but the pronouncement be varied so as to award them both "legal" and "physical" custody of the children. They submitted that the evidence disclosed the existence of "serious cause" for which respondent should be partially deprived of his parental authority by divesting him of his right to custody. They argued that such evidence is provided here by respondent's inability to develop the usual ties of affection with his children.
Held: The appeal should be allowed.
(1) Res Judicata
The first judgment of the Superior Court, authorizing issuance of the writ of habeas corpus and dismissing the appellants' application for custody, did not have the authority of res judicata. It is of the essence of decisions concerning children that the decisions may be reviewed at any time, whenever circumstances so justify. In the case at bar, the evidence disclosed that the filing of the psychologist's report was not the only new fact subsequent to the first judgment. The inability of the children to adapt to family life with their father is a new circumstance warranting the filing of another motion for custody by the appellants.
(2) Deprivation of Parental Authority
Whether total or partial, deprivation of parental authority means not only that the person be precluded from exercising the attributes of parental authority, but also entails the loss of the authority itself which then ceases to be vested in the holder. It can only be ordered for serious cause and in the interest of the child. Deprivation of parental authority amounts to a value judgment in respect of its holder's conduct. A person cannot be even partially deprived unless it be concluded that he or she has been guilty, by action or inaction, of a serious and unjustified failure to perform the parental duty. Partial deprivation takes away the right of custody itself from the holder whereas the attribution of custody to a third person pursuant to art. 30 C.C.L.C. can only modify the exercise of the right. Thus, a parent who has not been deprived continues to care for his or her child at his or her home during certain weekends and during long holidays. In the case at bar, though the evidence showed clearly that it is not in the children's interest for them to continue living with their father and it is in their interest to live with appellants, the facts of the case did not show serious cause requiring the partial deprivation of respondent. The "affectional" incapacity referred to by appellants does not constitute "serious cause" within the meaning of art. 654 C.C.Q., given that it is not deliberate and has not taken the form of abandonment.
The application for partial deprivation of respondent is without basis for another reason. Article 654 C.C.Q. provides that evidence of serious cause will not suffice to deprive a person having parental authority: it must also be shown that such a measure is in the child's interest. The evidence of the latter requirement was not presented. Though they may appear slim in the short term, it is important in the interest of the children and of the father not to compromise the chances of a long‑term reconciliation.
Finally, the award of custody of a child to a third person does not entail the deprivation, even the partial deprivation, of the person having parental authority. The seriousness of deprivation and its formal nature rule out the possibility of its being implicitly imposed. It must be "declared", in other words imposed expressly, as provided in art. 654 C.C.Q.
(3) Child's Interest as Criterion for Award of Custody to Third Person
A third person can obtain custody of a child without applying to have the person having parental authority deprived of that authority. Article 30 C.C.L.C., which makes the child's interests the determining factor in decisions concerning it, authorizes a court to award custody of a child to a third person when the award is made for the child's well‑being, even in the absence of any wrongful behaviour on the part of the person having parental authority. A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure his own child's well‑being. The third person must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or mother or returns to live with them. He must also show that, unlike the person having parental authority, he is able to provide the care and affection needed by the child. Finally, though the award of custody to a third person means that a part of parental authority, for the purposes of the exercise of that part, is lost to the non‑custodial parent, this dividing up of the exercise of parental authority does not result in the loss by such a parent of the status of person having parental authority. So far as possible, the decision giving custody of the child to a third person must seek to encourage, by awarding visiting rights and the right to care for the child at the parent's home, the return of the child to its family surroundings or, if that is not possible, to re‑establish more harmonious relations. In the case at bar, the evidence amply supported the conclusion of the trial judge that the presumption in favour of the person having parental authority had been rebutted. The evidence showed clearly that in the present circumstances, it is impossible for the two young people to return to live with their father and, furthermore, that appellants are able to exercise custody of the two children properly.
The distinction between "physical" and "legal" custody is rejected. This distinction, originating in decisions of the courts, is not recognized by the Civil Code. The civil law concept of custody necessarily includes the presence of the child.
Cases Cited
Considered: Ménard v. Ménard, J.E. 81‑882 C.A., aff'g [1981] C.S. 50; Legault v. Figueroa, [1978] C.A. 82; Gohier‑Desfossés v. Gohier, J.E. 79‑23; Droit de la famille‑‑86, [1983] C.S. 1017; Droit de la famille‑‑110, [1984] C.S. 99; Droit de la famille‑‑228, [1985] C.S. 808; referred to: Droit de la famille‑‑52, [1983] C.A. 388; Droit de la famille‑‑236, [1985] C.A. 566; Droit de la famille‑‑32, [1983] C.S. 79; Droit de la famille‑‑130, [1984] C.A. 184; Cass. civ. 1ère, April 14, 1982, Bull. 1982, I, No. 125, p. 110 (Vidal case); Droit de la famille‑‑77, [1983] C.S. 692; Droit de la famille‑‑195, [1985] C.S. 349; S.A. v. J.‑C.L., [1986] R.L. 587; Hébert v. Landry, [1975] C.A. 108.
Statutes and Regulations Cited
Act to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39.
Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, ss. 39 [repl. 1980, c. 39, s. 61], 47.
Civil Code of Lower Canada, arts. 30 [ad. 1980, c. 39, s. 3], 56.3 [ad. idem, s. 7], 83 [ad. idem, s. 12], 119, 245 [rep. idem, s. 14].
Civil Code of Quebec, arts. 439, 443, 466, 528, 535, 536.1, 568, 569, 570, 611, 647, 648, 649, 653, 654, 658.
Code of Civil Procedure, R.S.Q. 1977, c. C‑25 [am. 1982, c. 17, s. 29], arts. 813.3 [am. 1983, c. 50, s. 7], 813.8 [am. 1984, c. 26, s. 20], 816, 816.1, 822.2., 822.3, 826 to 826.3.
Health Protection Act, R.S.Q. 1977, c. P‑35, ss. 42, 43.
Youth Protection Act, R.S.Q., c. P‑34.1 [formerly S.Q. 1977, c. 20], ss. 3 [repl. 1984, c. 4, s. 5], 4 [repl. idem].
Authors Cited
Deleury, Édith et Michèle Rivest. "Du concept d'abandon, du placement en famille d'accueil et de la tutelle du directeur de la protection de la jeunesse: quelques interrogations à propos du transfert des prérogatives de l'autorité parentale à une autre personne que les père et mère" (1980), 40 R. du B. 483.
Joyal, Renée. Précis de droit des jeunes. Montréal: Yvon Blais, 1986.
Joyal‑Poupart, Renée. "La loi 89 et l'autorité parentale" (1982), 13 R.G.D. 97.
Kélada, Henri. Précis de droit privé québécois. Montréal: SOQUIJ, 1986.
Knoppers, Bartha Maria. "From Parental Authority to Judicial Interventionism: The New Family Law in Quebec". In Contemporary Trends in Family Law: A National Perspective. Edited by K. Connell‑Thouez and B. M. Knoppers. Toronto: Carswells, 1984, pp. 205‑222.
L'Heureux‑Dubé, Claire. "La garde conjointe, concept acceptable ou non?" (1979), 39 R. du B. 835.
Marty, Gabriel et Pierre Raynaud. Droit civil: les personnes, 3e éd. Paris: Sirey, 1976.
Mazeaud, Henri et Léon et Jean Mazeaud. Leçons de droit civil, t. 1, vol. 3, 6e éd. par Michel de Juglart. Paris: Montchrestien, 1976.
Pineau, Jean. La famille: droit applicable au lendemain de la "Loi 89". Montréal: P.U.M., 1983.
Quebec. Civil Code Revision Office. Report on the Québec Civil Code: Commentaries, vol. II, t. 1. Québec: éditeur officiel, 1978.
Quebec. Civil Code Revision Office. Report on the Québec Civil Code: Draft Civil Code, vol. I. Québec: éditeur officiel, 1978.
Senécal, J.‑P. "La filiation et la déchéance de l'autorité parentale" (1982‑83), 78 F.P. du B. 83.
Simler, Philippe. "La notion de garde de l'enfant (sa signification et son rôle au regard de l'autorité parentale)" (1972), 70 Rev. trim. dr. civ. 685.
APPEAL from a judgment of the Quebec Court of Appeal, [1987] R.J.Q. 9 (sub nom. Droit de la famille‑‑320), 4 Q.A.C. 39 (sub nom. C. v. F. and F.), which reversed a judgment of the Superior Court1. Appeal allowed.
1 Mtl. Sup. Ct., No. 500‑05‑000914‑844, November 29, 1984, Meyer J.
Pierre‑François Mailhot, for the appellants.
Luce Dionne, for the children.
Émile Colas, Q.C., and Sylvie Sarrazin, for the respondent.
English version of the judgment of the Court delivered by
1. Beetz J.‑‑The appeal concerns the conditions under which the custody of a child is awarded to a third person in Quebec civil law.
I. Facts and Proceedings
2. The principal facts are not in dispute. The majority judgment of the Court of Appeal stated them as follows, sub nom. Droit de la famille‑‑320, [1987] R.J.Q. 9, at pp. 11‑12:
[TRANSLATION] Appellant G... C... married O... V... on July 2, 1966. Three children were born of this marriage: P... on March 10, 1967; H... on September 14, 1970; and X... on August 23, 1971.
At the time of the judgment of November 29, 1984 [the judgment a quo], the three children were still minors but the eldest, P..., lived in France with his maternal grandparents and was not affected by the action.
In 1981, O... V... filed for divorce and obtained interim custody of H... and X... with the father's consent. He also consented to his wife and the children occupying the family home. The same consent gave him visiting and outing rights. This consent was approved by an interim order.
Knowing that she was suffering from a terminal illness, the mother left Canada in July 1983 to return and die in her native land. She died in France on November 23, 1983. Before dying she entrusted the care of her children H... and X... to her sister and brother‑in‑law, the respondents at bar. The divorce was never granted.
Upon refusal by the respondents to relinquish the children to him, the father took habeas corpus proceedings in early 1984 and the respondents replied with a motion seeking physical custody of the children. The habeas corpus application was heard on an urgent basis by Jean‑Marie Brassard J.: he allowed it on March 16, 1984 and dismissed the respondents' motion. There was no appeal from these judgments.
The respondents then complied with Brassard J.'s judgment and returned the children to the appellant on March 25, 1984. The children, who were then thirteen and twelve years old, did not agree to this. On the first day they ran away to the respondents' home, but were again returned to the appellant's home on March 26. They again ran away.
On March 27, the respondents again returned them to the father, and the children again ran away. This time, however, the respondents refused to take them in and the police were obliged to intervene to get them back to the appellant's residence.
At the suggestion of the police, the father called in the services of the Protection de la jeunesse, which initiated an inquiry.
On May 4, the children again ran away. On May 7, a verbal agreement was reached in the office of the Centre des services sociaux du Montréal métropolitain between the appellant and the respondents to the effect that the children would remain with the latter for a month, while a psychosocial inquiry was being conducted.
Before the end of this moratorium the maternal grandparents, who reside in France, served a motion on the father asking that the children be authorized to spend two months of their holidays with them. The father opposed this request and the motion was dismissed by John Gomery J. on June 1.
The father reacted to this request by demanding that the children be returned to him before the end of the moratorium and began proceedings against the respondents for contempt of court. The respondents then filed a new motion for physical custody of the children.
On June 18, Zerbisias J. heard this motion by the respondents and the appellant's motion for contempt. She made an interim order the same day requiring the children to return to the father's home and compelling the respondents to assist in that return. She set hearing of the two actions for October 29 and 30 and appointed Ms. Luce Dionne to act as counsel for the children.
On July 12, 1984, Ms. Dionne privately commissioned Mrs. Paule Lamontagne, a psychologist, to evaluate the children's situation. This commission produced a long report dated October 25, 1984. The report was the principal basis on which Meyer J. awarded physical custody of the children to the respondents.
On October 22, the children again ran away from their father's home when they learned that hearing of the case had been postponed.
3. Following this latest running away, Tannenbaum J. of the Superior Court allowed the application for adjournment by counsel for the father and refused to order the appellants to return the children to their father until the motion had been decided. On November 29, 1984, Meyer J. allowed the appellants' motion and awarded them "physical" custody of H... and X... The pronouncement of the judgment reads as follows:
[TRANSLATION] AWARDS physical custody of the children H... and X... C... to T... V... ‑F... and D... F... ;
AWARDS legal custody to the father of the children, G... C... ;
GRANTS the father G... C... the following visiting and outing rights: a visit lasting a full weekend every three weeks, from Saturday at 9 a.m. to Sunday evening at 8 p.m., or longer if the children wish; and a week during the summer holidays, or longer if the children wish, provided Mr. C... gives one month's prior notice;
ORDERS that the school reports be given simultaneously to the F... and the father by the institutions attended by the children;
ORDERS that the father have complete freedom to write and telephone his children: the telephone to be used reasonably;
ORDERS provisional execution of this judgment notwithstanding appeal and without security.
The whole without costs.
4. Though this judgment was reversed by a majority of the Court of Appeal, the uncle and aunt have in fact continued to have custody of the children from the time of the running away on October 22, 1984, and the judgment delivered by Tannenbaum J. on October 29, 1984. At the hearing in this Court, H... and X... were sixteen and fifteen years old respectively.
II. Judgments of Superior Court and Court of Appeal
5. The custody of the children was the subject of an initial judgment by the Superior Court in March 1984: Droit de la famille‑‑125, [1984] C.S. 380. Brassard J. allowed the application for habeas corpus by the father and dismissed the motion for "physical" custody filed by the uncle and aunt. The judge noted that the children had lived with their uncle and aunt for only three and a half months and that the evidence disclosed no serious cause for denying custody to the father. Brassard J. observed that the uncle and aunt did not object to the children returning to live with their father and went on (at p. 383):
[TRANSLATION] ...the Court finds that since September 8, 1981 the children have been under the influence of their mother, their maternal grandparents and their uncle and aunt and that this environment has perhaps unwittingly prevented them from exercising the free will of a person of full age or making a judicious choice. They have therefore been psychologically deprived of their freedom and art. 851 C.C.P. must be applied.
6. Two and a half months after this judgment, the appellants again filed a motion for "physical" custody of the children in the Superior Court. Meyer J. allowed the appellants' motion and dismissed the motion for contempt of court filed by the father. Meyer J. rejected the argument of res judicata given the presence of new facts subsequent to the first judgment. He considered that the evidence presented sufficed to rebut the presumption of the father's right to custody and that the children had in no way been subject to undue influence in making their decision. Meyer J. based his conclusion in part on the psychological report entered in evidence, and the passages referred to by him must be cited:
[TRANSLATION] We have two young teenagers involved in a very difficult family situation which affects their feelings, their social relations, their concentration at school and their academic performance....These are distressed young people, so devastated emotionally that they do not know whom to turn to, and they became a replacement for their father's aggressive reaction to the separation from his wife, her subsequent departure and death.
With respect to his children, Mr. C... has manifested severe limitations which prevent him from establishing a very strong psychological tie as a parent....The children do not turn to their father, they run away from him, they even have to guard themselves against his interference... in their lives. They reject their father as the authority figure which might have been established in their early childhood....We believe that by his actions, his cold and authoritarian personality, Mr. C... has for the time being lost all chance of being a parent who is cherished and loved by his children.
...
...the children who are the most partisan and attached to one of the two parents when a couple breaks up are those between nine and twelve years old. H... and X... were just that age when the separation took place....This explains the tenacity and determination shown by these children not to live with their father. Their mother's death also hardened their loyalties. Furthermore, although these are very disturbed young people, they function quite well, recognizing their father's limitations and pitying him since, in spite of everything, "he is not happy"....they have a clear perception of the family situation and of their needs. We reject any suggestion of brainwashing or serious restrictions on their free will. The psychological tie formed between the children and the F... during the separation and the illness of O... V... C..., as well as since that time, is a healthy relationship which must transcend the merely biological tie....
...
It is in their own interest that the children H... and X... require:
Stability: The F... represent a continuity of the maternal home in which the children lived after the separation. The children are aware of this and escape there in order to feel secure and protected. Keepsakes of their mother are to be found there.
Love and affection: The F... are able to demonstrate affection and receive it from the children. The father's love is dependent on marks of respect and obedience.
...
Respect for the maternal image: The F... loved and supported the children's mother and can help X... and H... to retain a positive idea of her. This is an essential aspect of the development of their personal identities during their adolescent years.
Respect for the paternal role: The F... favour visits by the children to the father....
A harmonious family life: The F... have welcomed the children and made a place for them, where they feel at home and accepted. T... V... , their mother's sister, has acted as a substitute mother for H... and X...
To be understood as teenagers: The father regards the needs of teenagers as suspect and as likely to undermine his authority. The F... recognize and respect their needs and permit communication which encourages self‑expression and independence.
conclusions:
Despite a biological tie between Mr. C... and his two children, no strong, effective and sound psychological tie has developed. The separation and the illness and death of O... V... C... , and the legal proceedings which returned the children to their father, have driven them further away from the father.
A psychological parental tie has been created between them and the F... , and this tie is recognized and approved by the two children, aged thirteen and fourteen.
We feel that the C... children...went where they felt welcome. Children do not usually run away from places where they are loved, wanted and encouraged. [Emphasis added by trial judge.]
7. The trial judge expressed his agreement with the psychologist and concluded that in view of the circumstances it would be contrary to the children's interest to give the father custody:
[TRANSLATION] The children are now nine months older than they were at the time of Brassard J.'s judgment. They are thirteen and fourteen years old respectively. The evidence clearly established that their attitude to their father is more negative now than it was in March, and they are more categorical in their refusal to live with him. The evidence as a whole showed that their decision was arrived at as freely as it could be in the unfortunate circumstances of this case. The Court considers that if it awarded physical custody now to the father and the children were given into his care, more running away would take place in the future as has occurred in the past, and relations between the father and the children could only worsen with harmful consequences that would be unavoidable for everyone.
It is certainly not my intention in this judgment to question the respondent C.... 's character, rather it is simply to note that bad relations now exist between him and the two children. At the children's present stage in life, it would be very risky to go against their wishes when these have been so clearly expressed. The father does not wish to lose his children, and I agree entirely with him, in the children's interest and in his own. However, in the present circumstances the best way of losing them would be to award custody to him at this time, in view of their current attitude to their father and vice versa, and this will be true until great changes occur in the attitudes and behaviour of everyone concerned. [Emphasis added.]
8. This decision was set aside by a majority judgment of the Court of Appeal. Nichols J.A., who wrote the majority opinion, considered that Brassard J.'s judgment had the authority of res judicata between the parties and that, like an appeal, the judgment a quo had the effect of reversing an earlier decision based on the same facts. He pointed out that bad relations had existed between the father and his children from childhood and that the only new fact was the filing of the psychologist's report. He said that the report would have contained the same conclusions if it had been filed at the first hearing.
9. Nichols J.A. also said he considered that the appeal should be allowed on the merits. When the mother died, full parental authority vested in the father under art. 648 C.C.Q. The motion by the uncle and aunt had the effect of depriving the father of his rights. Nichols J.A. rejected the distinction between physical and legal custody (at p. 12):
[TRANSLATION] ...this subtle distinction resorted to by the respondents in their motion has the practical effect of stripping the father of his parental authority or creating constant conflicts of authority which are certainly not in the children's interest.
...
...parental authority is usually exercised where the children are. Their physical presence is a condition of the authority exercised over them. Parental authority is a day‑to‑day matter. It cannot be separated from physical presence.
10. He pointed out that this distinction is also not contained in the Civil Code of Quebec. After citing art. 570 C.C.Q., he went on (at p. 13):
[TRANSLATION] Accordingly, the spouse who is deprived of custody retains only the right to watch over the children. He may no longer participate in decisions regarding their maintenance and education as parents are authorized to do by art. 648 C.C.Q., cited above.
11. In the view of Nichols J.A., this situation results in partially depriving a parent of his authority. It follows that (at p. 14):
[TRANSLATION] A third person who is seeking to deprive a father and mother of the parental authority recognized by law must ask the courts for total or partial deprivation by showing serious cause and the interest of the child.
Article 654 C.C.Q. states this rule clearly:
The court may, for serious cause and in the interest of the child, on the motion of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be totally or partially deprived of such authority.
There must accordingly be serious cause for which the person having parental authority is responsible, and the deprivation of authority must be in the child's interest. Both conditions must necessarily be met.
12. The majority of the Court of Appeal did not consider that the adoption of art. 30 C.C.L.C. in 1980, requiring that each decision be taken in the child's interest, has altered this requirement. Nichols J.A. observed (at p. 15):
[TRANSLATION] It may be that in the case at bar the uncle and aunt are in a better position than the father to ensure a positive and productive relationship with the children, but the father should not be deprived of part of his parental authority unless it can be shown that he is unworthy to have the custody of his children or is unable to perform his duties properly.
13. Nichols J.A. concluded that proof of "serious cause" for deprivation under art. 654 C.C.Q. had not been made. He felt that the father had not had a real opportunity to show that he was able to carry out his obligations properly since the divorce petition in 1981 and that all the people around the children had joined forces against him when he tried to exercise full custody of the children after his wife's death.
14. L'Heureux‑Dubé J.A., as she then was, dissenting, considered that the new facts stated by the trial judge provided a basis for the motion by the uncle and aunt and that the matter was not res judicata. She noted that the Court of Appeal had very limited powers of intervention in child custody matters and also expressed the view that parental authority and the biological tie no longer take priority over every other consideration in awarding custody. The determining factor in such matters is the general well‑being of the child in psychological, spiritual and emotional terms. Even if the father is not an unworthy man in the ordinary sense, L'Heureux‑Dubé J.A. was of the following opinion (at p. 25):
[TRANSLATION] The fact that a man is responsible and a good citizen, as the appellant has shown that he is, does not make him, solely for that reason, a father who is able to have custody of his children. The yardstick here is not the parent's general conduct but his or her conduct in relation to the children, in terms of their needs and their general well‑being. Beyond material considerations, which are undoubtedly important, are the much more essential considerations of a spiritual, emotional and psychological nature, the tie of affection in particular. That is what the trial judge considered here, and in so doing made no error of principle.
15. Like the trial judge, L'Heureux‑Dubé J.A. dismissed the argument that the uncle and aunt had exercised a harmful influence over the children. She considered that the Superior Court had ruled correctly on the "physical" custody of the children and would have been prepared to award "legal" custody to the appellants to the extent that this concept was applicable.
III. Points at Issue
16. The appellants are asking this Court to restore the trial judgment, but vary the pronouncement so as to award them both "legal" and "physical" custody of H... and X..., as relations between respondent and his two children have not improved since the trial judgment and there is almost no further hope of reconciliation before the children attain their majority. At the hearing, counsel for the appellants conceded that the award of custody to a third person would amount to a declaration of partial deprivation and that it was therefore necessary to establish the existence of serious cause within the meaning of art. 654 C.C.Q. for giving custody to someone other than the person having parental authority. This concession on a point of law is not binding on the Court. Moreover, counsel for the respondent did not rely on this concession and, both in his submission and in his argument, sought to show that the child's interest alone cannot deprive the person having parental authority of the exercise of his or her right of custody. The Court is therefore entirely free to decide the point.
17. I would frame the three questions raised by the appeal as follows:
1. Does the first judgment of the Superior Court have the authority of res judicata?
2. Is there present, in the case at bar, "serious cause" within the meaning of that term at art. 654 C.C.Q. which may result in the total or partial deprivation of the person having parental authority?
3. Does the criterion of the child's interest stated in art. 30 C.C.L.C. allow custody to be awarded to a third person in the absence of "serious cause" attributable to the person having parental authority?
IV. Res Judicata
18. Counsel for the respondent relied essentially on the majority reasons of the Court of Appeal in arguing that the judgment of Brassard J. has the authority of res judicata and that there were no new facts to justify the filing by the appellants of a second motion for custody some two and a half months later. With respect, I cannot conclude as respondent has suggested that the only new fact arising since the first judgment was the filing of the psychologist's report.
19. The main reason why Brassard J. authorized issuance of the writ of habeas corpus was that the children were psychologically deprived of their freedom. This obstacle was removed when they were returned to their father's home, but the state of relations between the respondent and his children deteriorated nevertheless. Further, when the writ of habeas corpus was issued, Brassard J. did not know what the impact of returning the children would be on the ties between them and their father. At that time, H... and X... had not lived with their father for nearly three years. The children ran away five times within a period of seven months of their return to their father's home, until Tannenbaum J. allowed the children to live with their uncle and aunt pending a ruling on the motion. Meyer J. correctly decided that the inability of the children to adapt to family life with their father was a sufficient new fact.
20. It is of the essence of decisions concerning children that these decisions may be reviewed at any time, whenever circumstances so justify, and the course of events as indicated by the evidence in the case at bar satisfies me that the matter is not res judicata.
V. Deprivation of Parental Authority
21. Ordinarily, parental authority rests with the parents. The Civil Code of Quebec specifies the scope of the rights and duties arising out of their function at art. 647 C.C.Q.:
647. The father and mother have the rights and duties of custody, supervision and education of their children.
They must maintain their children.
22. The father and mother are both required to perform the duties incumbent on them as a consequence of parental authority:
648. The father and mother exercise parental authority together.
If either parent dies, is deprived of parental authority or is unable to express his will, the other parent exercises parental authority.
23. Article 443 of the Civil Code of Quebec and s. 47 of the Charter of human rights and freedoms, R.S.Q. 1977, c. C‑12, specify how this duty is to be performed when the parents are married:
443. The spouses together take in hand the moral and material direction of the family, exercise parental authority and assume the tasks resulting therefrom.
47. Husband and wife have, in the marriage, the same rights, obligations and responsibilities.
Together they provide the moral guidance and material support of the family and the education of their common off‑spring.
24. However, the person having parental authority can delegate its exercise as provided in art. 649 C.C.Q., as well as certain provisions of the Youth Protection Act, R.S.Q., c. P‑34.1, regarding the application of voluntary measures. The person having parental authority can also have the exercise of the rights associated with his parental authority limited by a decision of the courts. A judgment may have the effect of depriving the holder of the exercise of part of his or her rights although such deprivation is not ordered as a result of any wrongful act by the holder: this is so when a judgment of separation as to bed and board or a divorce decree awards custody to one of the parents or, as I will indicate in the next heading, when the child's interest requires that custody be awarded to a third person.
25. The Civil Code of Quebec also provides for the possibility of totally or partially depriving the person having parental authority of that authority. Whether total or partial, such deprivation means not only that the person is precluded from exercising the attributes of parental authority, but also entails the loss of the authority itself which then ceases to be vested in the holder. It can only be ordered for serious cause and in the interest of the child:
654. The court may, for serious cause and in the interest of the child, on the motion of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be totally or partially deprived of such authority.
26. The appellants submitted that in the case at bar the evidence disclosed the existence of "serious cause" for which the respondent should be partially deprived of his parental authority by divesting him of his right of custody. In particular, they argued that it is sufficient to show the inability of the person having parental authority to perform his or her duties properly, without it being necessary to establish his or her unworthiness as well. They argued that such evidence is provided here by the respondent's inability to develop the usual ties of affection with his children. The appellants further said that partial deprivation does not have to be expressly declared by a court as it can be inferred from the order awarding custody to a third person. They cited as authority for this the opinion of the Court of Appeal in the case at bar as well as in Droit de la famille‑‑52, [1983] C.A. 388, and Droit de la famille‑‑236, [1985] C.A. 566.
27. Counsel for the appellants seems to have been prompted to make this application for the partial deprivation of the respondent by the belief that the appellants could not legally obtain the custody without, at the same time and as a necessary consequence of the demand for custody, asking for partial deprivation of the father. This belief is based on the judgment of the Court of Appeal in the case at bar, the merits of which on this point were conceded by counsel for the appellants, as I said earlier, and on the two Court of Appeal judgments cited earlier, Droit de la famille‑‑52 and Droit de la famille‑‑236. Perhaps the intention was by this means to soften the blow and make deprivation easier to obtain by suggesting that it was not to be expressly declared by a court. As I will have occasion to indicate below, these two propositions are, with the greatest respect, wrong in law.
28. Deprivation is a radical, though necessary, measure for controlling parental authority. It strips the holder of rights but never relieves him or her of obligations. When it is total, deprivation is likely to lead to breaking the tie of filiation through adoption (see arts. 611 and 658 C.C.Q. and B. M. Knoppers, "From Parental Authority to Judicial Interventionism: The New Family Law in Quebec" in K. Connell‑Thouez and B. M. Knoppers eds., Contemporary Trends in Family Law: A National Perspective (1984), at p. 212). It may also, depending on the circumstances, lead to a change in the name of a child whose parent has been so deprived (art. 56.3 C.C.L.C.) Deprivation of parental authority amounts to a value judgment in respect of its holder's conduct. Whether partial or total, the deprivation judgment represents a finding by the court that the holder is incapable of retaining part or all of the parental authority. A person cannot be even partially deprived unless it is concluded that he or she has been guilty, by action or inaction, of a serious and unjustified failure to perform the parental duty. (Droit de la famille‑‑32, [1983] C.S. 79, at p. 80; Droit de la famille‑‑130, [1984] C.A. 184; J. Pineau, La famille: droit applicable au lendemain de la "Loi 89" (1983), at pp. 287‑88; E. Deleury and M. Rivest, "Du concept d'abandon, du placement en famille d'accueil et de la tutelle du directeur de la protection de la jeunesse: quelques interrogations à propos du transfert des prérogatives de l'autorité parentale à une autre personne que les père et mère" (1980), 40 R. du B. 483, at pp. 484 and 487; J.‑P. Senécal, "La filiation et la déchéance de l'autorité parentale" (1982‑83), 78 F.P. du B. 83, at p. 113; R. Joyal, Précis de droit des jeunes (1986), at p. 85.)
29. This rule has been clearly stated in the report on the Civil Code of Quebec which led to the adoption in 1977 of the articles regarding total or partial deprivation of parental authority:
In such a case [that is, the partial removal of a right], some of the rights which stem from parental authority and have been misused are taken away from the parent.
...
...such measures [deprivation of parental authority or the removal of certain rights] are the consequence of serious failure by a parent to execute his obligations. On the other hand, while a child may need protection, his parents may not necessarily be responsible for this situation.
(Civil Code Revision Office, Report on the Québec Civil Code: Commentaries (1978), vol. II, t. 1, at pp. 215‑16.)
30. The additional latitude which the legislature has given the courts by not adopting the limited grounds for declaring deprivation suggested by the Revision Office does not in my opinion affect the general principle stated above. Partial or total deprivation of parental authority remains conditional: it depends on proof of reprehensible conduct by the holder.
31. Counsel for the appellants submitted, however, that mere inability to properly discharge the duties imposed by parental authority amounts to "serious cause" within the meaning of art. 654 C.C.Q. The Court of Appeal expressed the view that inability to perform one's duties may be a sufficient cause for deprivation but it concluded that the evidence did not show that the respondent was so unable to exercise parental authority that custody of his children should be taken away from him. Now as in the past, the courts have held that mental or physical inability can be a sufficient cause for the withdrawal of the exercise of custody rights. Since the adoption of the articles relating to deprivation in 1977, however, an outstanding question has been whether a physical or mental handicap can result in the holder losing his parental rights even in the absence of wrongful behaviour on his or her part. In certain obiter dicta the Court of Appeal seems to have assumed that it could, but no court has to my knowledge yet issued a judgment of deprivation in Quebec solely for this reason. In France, the Court of Cassation recently held that it is in keeping with the protective purpose of the institution of deprivation to deprive a parent whose actions are caused by a mental disorder for which he is not responsible (Vidal case, 1ère Civ., April 14, 1982, Bull. 1982, I, No. 125, p. 110). Though it is not necessary to decide this point, I am strongly inclined to think that in such a case a court should have recourse to the discretionary power conferred on it by art. 654 C.C.Q. and not impose deprivation if there is some alternative measure which provides the child with equivalent protection. When it is possible, such a solution fully protects the child's interest while it does not attach the stigma of deprivation to a parent who is not blameworthy (see J. Pineau, op. cit., at p. 288).
32. The inability alleged by the appellants is not, however, of this type: it does not result from any physical or mental handicap. The "affectional" inability referred to by counsel for the appellants does not in my view constitute "serious cause" within the meaning of art. 654 C.C.Q., given that it is not deliberate and has not taken the form of abandonment. Marty and Raynaud correctly point out the limits inherent in deprivation of parental authority:
[TRANSLATION] ...deprivation has a very derogatory connotation and is not possible when the parents are more inept than culpable or the child is simply too difficult for them to handle. Moreover, the consequences of such a measure are often too radical and too harsh: it imposes a separation of the child from its family which sometimes may be unnecessary or indeed undesirable.
It was thus necessary to introduce a more flexible means of providing educational assistance which could even be obtained at the instance of the parents themselves and even though their conduct did not justify the stigma of deprivation....[Emphasis added.]
(Droit civil: les personnes (3e éd. 1976), at p. 304.)
33. Partial deprivation takes away the right of custody itself from the holder whereas the award of custody to a third person pursuant to art. 30 C.C.L.C. can only modify the exercise of the right. Thus, a parent who has not been deprived continues to care for his or her child at his or her home during certain weekends and during long holidays. Mazeaud and Mazeaud observe that deprivation of the right of custody is in certain cases an excessive measure:
[TRANSLATION] ...partial deprivation is also a very serious measure: withdrawal of the right of custody has a very painful effect on parents who are often more ignorant and unfortunate than in the wrong, and it is very often not in the child's interest to remove it from the family circle.
(Leçons de droit civil (6e éd. 1976), t. 1, vol. 3, at p. 606.)
34. What is the evidence in the case at bar? It was not alleged that the respondent abandoned his children or that he showed no interest in their fate. Instead, it was alleged that he was unable to give his children the affection they need. The psychologist appointed by counsel for the children found an absence of any "very strong" affectional tie and observed that the father "has for the time being lost all chance of being a parent who is cherished and loved by his children". The father apparently alienated the affection of his children by his excessive authoritarianism.
35. The evidence showed that there was already a climate of discord in 1981 when, with the respondent's consent, the children went to live with their mother. The appellants nevertheless did not argue that the disagreement at that time was such that even then it justified the partial deprivation of parental authority. The events which followed were painful for everyone and aggravated this discord, even though the respondent could not be said to be seriously remiss in his duties owed to the children. The conclusions of the psychologist's report emphasized that the separation, the illness and death of the mother, as well as the proceedings which forced the young people to cease living with their uncle and aunt, drove H... and X... still further away from their father. The evidence disclosed that during this period, the respondent made sincere efforts to seek closer ties with his children, but that so far these efforts have failed. The trial judge observed that the respondent [TRANSLATION] "is probably doing his best" and L'Heureux‑Dubé J.A. emphasized that the father [TRANSLATION] "loves his children and is anxious for their welfare". Following the trial judgment, the respondent was appointed tutor to his children in June 1985 by unanimous decision of a family council which included the appellants. The appellant D... F... was appointed subrogate‑tutor, and the appellant T... V...‑F... was appointed tutrix ad hoc responsible for the settlement of the estate of the children's mother. Though the evidence shows clearly that it is not in the children's interest for them to continue living with their father and it is in their interest to live with the appellants, I do not think that the facts of the case at bar show serious cause requiring the partial deprivation of the respondent.
36. The application for partial deprivation of the respondent is, in my view, without basis for another reason. Article 654 C.C.Q. provides that evidence of serious cause will not suffice to deprive a person having parental authority: it must also be shown that such a measure is in the child's interest (Droit de la famille‑‑77, [1983] C.S. 692, at p. 697; Droit de la famille‑‑195, [1985] C.S. 349, at p. 352; S.A. v. J.‑C.L., [1986] R.L. 587 (Que. C.A.)) I do not think that evidence of the latter requirement has been presented. Though they may appear slim in the short term, the chances of a reconciliation between the father and his two children make the pronouncement of a partial deprivation judgment against the respondent inadvisable at this time. It is of paramount importance, considering both the interest of the children and of the father, not to compromise the chances of a long‑term reconciliation. The Superior Court concluded categorically that it is in the children's interest for the ties with their father to be re‑established; a declaration of partial deprivation might impede the reconciliation which the trial judge thought desirable:
[TRANSLATION] The father does not want to lose his children, and I agree entirely with him, in the interest of the children as well as in his own interest.
...
I can only express the wish that the normal parental ties which should exist between a father and his children may be restored. The father must understand that the children have suffered a great loss and are still in mourning for their mother. A new relationship based on sound principles will only be possible with considerable effort by everyone concerned....The father is probably doing his best, and with the passage of time I hope that the closer relations which everyone wants to see will come to pass. [Emphasis added.]
37. Furthermore, I find it hard to see how a court can declare that someone is deprived of his custody right and at the same time award that person the right to care for his child at his home during specified periods as was done here.
38. I would add one final comment. The seriousness of deprivation and its formal nature rule out the possibility of its being implicitly or, as it were, hastily imposed. The argument that partial deprivation can be inferred from the very decision to award custody to a third person seems to me to be clearly wrong. The partial deprivation of parental authority cannot be inferred: it must be "declared" or, in other words, imposed expressly, as provided in art. 654 C.C.Q. Article 813.3 C.C.P. recognizes the formal nature of the application for deprivation, providing that it shall be by declaration and not by motion as is the case with child custody (cf. arts. 813.8 and 826 to 826.3 C.C.P.) The dismissal of a writ of habeas corpus or the award of custody of a child to a third person does not entail the deprivation, even the partial deprivation, of the person having parental authority: a court may have concluded that the child in question was not deprived of its freedom or that it is in its interest for custody to be given to someone else, without the person having parental authority necessarily being stripped of his or her right of custody. In such a situation, the holder is deprived of the exercise of custody but not of the right itself. This distinction has important consequences. If the person having custody dies, the person having parental authority is once again entitled to exercise his or her right of custody if he or she has not been partially or totally deprived of that authority, subject of course to the child's interest. It goes without saying, however, that the interest of the child may lead a court to make a new decision at the behest of a third person or to the intervention of the services of the Protection de la jeunesse, if the resumption of custody by the person having parental authority should prove harmful to the child. On the other hand, a parent who has been partially or totally deprived of parental authority cannot assume custody of the child unless he or she submits to the Superior Court a declaration for restoration of the right he or she was deprived of by an earlier judgment: arts. 658 C.C.Q., 813.3 and 826.1 C.C.P.
39. As to the second question, therefore, I would answer that the Court of Appeal was right in deciding that there was no "serious cause" in the case at bar for which the respondent should be partially or totally deprived of his parental authority. However, the Court of Appeal erred in holding that such deprivation does not have to be expressly declared and that it necessarily follows where custody is awarded to a third person.
VI. Child's Interest as Criterion for Award of Custody to Third Person
40. The respondent took up in this Court the argument developed by a majority of the Court of Appeal that the criterion of the child's interest cannot be the sole basis for the award of custody of a child to a third person. He argued that the adoption of art. 30 C.C.L.C. only amounted to a codification of existing law and that, accordingly, a third person cannot obtain custody of a child without applying to have the person having parental authority totally or partially deprived of that authority. It would be thus essential to adduce evidence of a serious cause attributable to the person having parental authority, in addition to the interest of the child. He cited a number of decisions in support, including Droit de la famille‑‑52, supra, in which the Court of Appeal wrote (at pp. 390‑92):
[TRANSLATION] When the father and mother contest the custody of their child, it is often hard to see where its best interest lies. To this end the courts have created a somewhat weak presumption of fact that the interest of a small child generally is such that the child should be given to its mother. The problem is more complicated when the custody of a child pits the father or mother against a third person. In this case, the courts have created another presumption, here quite strong, that it is in the interest of the child for him or her to be given to the father or mother unless "serious objections can be established against them that may be a basis for deprivation".
...
A parent may well give a third person physical custody of his or her child without parental authority being diminished, but when a court awards the custody of a child to a third person against its parents' wishes, the latter are thereby at least partially deprived of their parental authority. The right of parents to have custody of their child is an attribute of paternal authority: even the temporary abolition of this right necessarily implies a limitation on their authority. It is the situation described in article 654 C.C.Q.:
The court may, for serious cause and in the interest of the child, on the motion of any interested person, declare the father, the mother or either of them, or a third person on whom parental authority may have been conferred, to be totally or partially deprived of such authority. [Emphasis added.]
(See, to the same effect, Droit de la famille‑‑236, supra.)
41. The consequence of this reasoning is that the person having parental authority to whom no serious reproach can be made may retain the custody of the child even if the latter's interest clearly requires that custody be awarded to someone else. This is based on the premise that the only limitation placed on parental authority is that in art. 654 C.C.Q. dealing with the deprivation of parental authority. With all due respect for the contrary view, I consider that art. 30 C.C.L.C., which makes the child's interest the determining factor in decisions concerning the child, authorizes that custody be awarded to a third person when the award is made for the child's well‑being, even in the absence of any wrongful behaviour on the part of the person having parental authority.
42. The child's interest has become the cornerstone of decisions concerning it in Quebec civil law. The reform of family law introduced in 1980 by the adoption of the Act to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39, has made the child's interest paramount. The rule that the child's interest must prevail was for the first time unequivocally recognized in the Civil Code with that reform:
30. 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.
43. The adoption of art. 30 C.C.L.C. was accompanied by a number of legislative amendments intended to apply this criterion to the various situations in which the child's welfare is likely to be compromised. The legislature also imposed on the courts a duty to ensure that the child's interest is protected. The judge has an obligation to appoint a tutor ad hoc for the child in all cases where the interest of the child is opposed to that of the person having parental authority or where the child is unable to determine his own interest (art. 816.1 C.C.P.) Where the court finds that the interest of the child is at stake and that it is necessary for the safeguarding of that interest that the child be represented, it may, even of its own motion, adjourn the hearing of the application until an attorney is appointed to represent the child (art. 816 C.C.P.) It also comes within the role of the court to see to the interests of the child at all stages of proceedings for separation as to bed and board (art. 528 C.C.Q.) If the latter is based on a draft agreement, the judge must strike out or amend the clauses of the provisional covenant that appear contrary to the interests of the child (art. 822.2 C.C.P.) Under art. 822.3 C.C.P., he may even dismiss the application for separation as to bed and board if he finds that the draft agreement does not sufficiently preserve the interests of the child. These provisions make clear beyond any question the decisive role of the child's interest and the need to give this interest priority in certain circumstances over interests which may be opposed to it.
44. The wording of art. 30 C.C.L.C. itself confirms that the child's interest can sometimes prevail over that of the person having parental authority if these interests come into conflict. Article 30 C.C.L.C. states that the child's interest must be considered in light of, inter alia, "the child's age, sex, religion, language, character and family surroundings, and the other circumstances in which he lives". Despite the considerable weight that must be given to them, family surroundings are not the determining factor: they are just one factor among others to be considered. Article 647 C.C.Q. implies with good reason that family surroundings are the best place to ensure that the child's welfare is protected. But this is a presumption that can be rebutted. If, for whatever reason, it happens that the child's development could be compromised by its being left at its parents' home or returned there, the child's interest justifies passing over the rights of the person having parental authority. The child's interest does not put an end to such authority but indicates the limits on its exercise. As Professor Knoppers observed concerning the adoption of art. 30 C.C.L.C.:
What has occurred then may well be a complete reversal of the attitude of the law towards children, the new approach considering their interests as primary over those of their parents. This approach is all the more evident in the new provisions aimed at protecting the child during or following a marriage breakdown. In these cases it is not only the equality principle [of the spouses] that is to guide the court, but also the principle of the best interests of the child.
(B. M. Knoppers, op. cit., at p. 212.)
45. This interpretation of art. 30 C.C.L.C. and the relative nature of the rights conferred by parental authority seems to me to be consistent with the legislative intent underlying that provision, which also finds expression in ss. 3 and 4 of the Youth Protection Act:
3. Decisions made under this Act must be in the interest of the child and respect his rights.
4. Every decision made under this Act must contemplate the child's remaining with his family. If, in the interest of the child, his remaining with or returning to his family is impossible, the decision must contemplate his being provided with continuous care and stable conditions of life corresponding to his needs and his age and as nearly similar to those of a normal family environment as possible. [Emphasis added.]
46. In my opinion, it cannot be argued that deprivation of parental authority is the sole manner in which limitations may be imposed on the custody right of the person having parental authority. Such a suggestion would amount to denying that the child's interest is the determining factor when custody is disputed. There can be no question that art. 30 C.C.L.C. applies to custody matters. Article 30 C.C.L.C. is based on the Draft Civil Code proposed by the Civil Code Revision Office, which in a chapter entitled "Provisions Relating to Children", proposed an article which is fundamentally identical:
25 In every decision concerning a child, whether that decision is made by his parents, by the persons acting in their stead, by those entrusted with his custody or by judicial authority, the child's interest must be the determining factor.
Consideration is given in particular to the child's age, sex, religion, language, character and family surroundings, and the other circumstances in which he lives.
(Civil Code Revision Office, Report on the Québec Civil Code: Draft Civil Code (1978), vol. I, at p. 9.)
47. The comments of the Office on this provision clearly indicate its applicability to custody:
This article is new. It states the principle that the child's interest is of supreme importance when decisions concerning him are made. It also determines the criteria by which the court must be guided in its assessment, particularly in cases of adoption, custody or support.
(Civil Code Revision Office, Report on th Québec Civil Code: Commentaries, vol. II, t. 1, at p. 28.)
48. Articles 568 to 570 C.C.Q. also stress the primacy of the child's interest by adopting the criterion established by art. 30 C.C.L.C. for the situation in which a third person claims custody of the child from the person having parental authority:
568. Divorce does not deprive the children of the advantages secured to them by law or by the marriage contract.
The rights and duties of fathers and mothers towards their children are unaffected by divorce, subject to the following provisions. [Emphasis added.]
569. 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. [Emphasis added.]
570. 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.
49. Although art. 569 is not in force as regards divorce, these three provisions do govern the award of custody of children where a marriage is annulled or the parents are separated as to bed and board (arts. 439, 535 and 536.1 C.C.Q.) By adopting the very wording of art. 30 C.C.L.C., art. 569 C.C.Q. makes it clear beyond doubt that the child's interest is the only criterion to be considered in awarding custody. Article 570 C.C.Q., based solely on this criterion, authorizes the court to award custody to a third person even though both parents are prepared to assume its exercise. A fortiori this may also be the case when a third person wishes to obtain custody of a child from the sole surviving parent, if it appears that the child's interest requires such a solution.
50. Another important legislative amendment which also occurred in 1980 supports the conclusion that the child's interest must be given priority when it is inconsistent with the rights of the person having parental authority. The former art. 245 of the Civil Code of Lower Canada provided that the delegation by a parent of the exercise of his or her custody right was revocable at any time:
245. The person having parental authority may delegate the custody, education and supervision of the child. Such delegation may be revoked at any time.
51. This article was repealed when the Civil Code of Quebec was adopted, S.Q. 1980, c. 39, s. 14. Article 649 C.C.Q., which now provides for the custody of a child to be delegated, no longer authorizes the person having parental authority to recover exercise of custody at any time if this would conflict with the child's right not to be disrupted by removal from surroundings in which it may have developed close ties essential to its welfare:
649. The person having parental authority may delegate the custody, supervision or education of the child.
52. The return of the child to its family is thus subordinated to the child's interest (R. Joyal‑Poupart, "La loi 89 et l'autorité parentale" (1982), 13 R.G.D. 97, at pp. 100‑101; B. M. Knoppers, op. cit., at p. 217). This limitation on the rights of parental authority is in no way connected with a requirement that there be present serious cause which can be attributed to the holder's conduct. A parent may have delegated custody of his or her child pursuant to art. 649 C.C.Q. for reasons which are quite legitimate, such as illness, poverty or separation by distance caused by working abroad in order to support the family. That it may be impossible even to partially deprive the person having parental authority does not mean that the child will have to return to live with its parent if the result leads to a traumatism or a major emotional upheaval.
53. The concern to protect the child's interest has been expressed in a number of recent decisions in which custody was awarded to a third person for the child's well‑being, even though the facts did not establish against the person having parental authority any serious cause that could lead to total or partial deprivation. These decisions are subsequent to the introduction of the concept of deprivation into the Civil Code.
54. Ménard v. Ménard, J.E. 81‑882 (C.A.), concerned the custody of a child who was five and a half years old when the proceedings began. The parents applied for habeas corpus against the uncle and aunt, who in turn filed an application for custody of the child whom they had cared for since her birth, apart from a brief five‑month interval. The mother gave birth in very unfortunate circumstances. While still pregnant, the appellant learned that she was suffering from cancer. She had to undergo a number of operations during her pregnancy which led to many complications. The child was given to the uncle and aunt at birth. Seventeen months later, the mother took the child back, but had to return it to the respondents' custody some time later following another operation. The respondents continued to have custody of the child with the parents' consent until the latter decided to institute proceedings to recover custody of her. The trial judge first in an interim judgment postponed the final decision and awarded custody to the uncle and aunt while giving the appellants substantial rights to care for the child at their home. This experiment proved successful. On the basis of further evidence, however, the Superior Court in its final judgment awarded custody to the respondents and dismissed the parents' action, giving them nevertheless the right to care for their daughter every other weekend, for one week during the Christmas holidays and for a month in the summer: [1981] C.S. 50.
55. This judgment was affirmed by the Court of Appeal. Bernier J.A. held that the trial judge properly considered that it was in the child's interest for her to remain with her uncle and aunt even though the appellants were excellent parents:
[TRANSLATION] The trial judge stated the law correctly. He considered the rule that when a very young child is held by a third person against the wishes of its father and mother, it is presumed to be held illegally; that however this is only a presumption which may be rebutted; that the child should be left in the custody of the third persons concerned if, in view of the particular circumstances of the case, this is in its best interest, a matter which is in the judge's discretion.
...
Further, there is no doubt that the applicants are a close couple and are excellent parents for their daughter Chantale, and there is no reason to think they would be otherwise with Isabelle.
The question is whether, in the circumstances of the case, it is in the child's interest for the status quo to be altered at this time. The obstacle is that the appellants are practically strangers to the child. Without blaming them in any way the fact remains that, as the judge properly concluded on the evidence, the appellants had practically speaking abandoned her, or what amounts to the same thing, relinquished her maintenance and education to the respondents without making any effort to establish and maintain ties of affection with her. They cannot be blamed for entrusting the child to the respondents: it was the best they could do in the interest of the child in the circumstances. Because of her illness and the many complications which subsequently arose, the appellant mother was physically incapable of caring for this child, and indeed not even for her other child Chantale. This was also true with the appellant father, who had to take over the family business, first because of his father's illness and then the latter's death, and this took up nearly all of his time....
I concur with the trial judge that the weight of the expert evidence is that, in the circumstances, altering the status quo would involve a great risk to the child's psychological well‑being. Like him, I consider that the Court should accept the opinion of the psychologist, Mariette Lepage, that there is nothing to be gained by moving Isabelle and that, on the contrary, there would be significant advantages if she were to continue living with the respondents and to be able to continue developing a healthy and harmonious relationship with the appellants. [Emphasis added.]
56. The Court of Appeal did not mention Ménard v. Ménard. Nevertheless, I think that it contradicts the principles applied by the Court of Appeal in the case at bar.
57. The possibility of entrusting a child to the care of a third person in the absence of serious cause for total or partial deprivation has previously been discussed in Legault v. Figueroa, [1978] C.A. 82. Although he concluded that the father's attitude in no way suggested either a lack of interest or abandonment, Mayrand J.A. noted in that case that he would have been prepared to leave the custody with the grandparents who, along with the mother, had looked after the child for many years, if the return of the child to his father had had a harmful effect on his development (at p. 86):
[TRANSLATION] If the evidence definitely showed that Roberto's return to his father would be harmful to the child, that moving him to another country would cause him a psychic trauma, I would be prepared to leave him with his grandparents. However, there is no evidence that moving the child would have harmful effects on him. According to the trial judge, whose opinion appears to me to be correct, the fears expressed in this regard by the appellants were not justified.
58. In Gohier‑Desfossés v. Gohier, J.E. 79‑23 (C.S.), a mother claimed from her sister custody of the child she had to leave with her at birth because of very unfortunate circumstances. The appellant, who was single and twenty‑two years old when her son was born, was forced to give him up by her parents who wanted to conceal the birth at all costs. The child was given to his aunt and her husband who had already begun raising a family. On the evidence the Court concluded that the mother had never expressly renounced her rights over the child. At the hearing of the application, however, the child categorically refused to go and live with his mother. Jules Beauregard J. dismissed the mother's application on the following grounds:
[TRANSLATION] The Court is aware that the rights resulting from paternal authority belong to the parents from the time the child is born (arts. 243, 244 and 113 C.C.) The blood relationship between the mother and the child, though very strong, does not give her an absolute priority over persons who have raised the child since its very early years, [a child which] is now old enough to exercise a choice that may be viewed as judicious. Moreover, the courts have approved the principle that parental authority should yield to the child's interest.
...
There seems to be no doubt that the applicant has been the quite unintentional victim of a serious injustice, and has been unable, especially on account of her father, to take on the role of mother to her child and, because of her inadequate behaviour, she has unintentionally alienated the respect and affection of her child.
However, in the best interest of the child the Court considers that he should remain in the family surroundings he has known since birth.
...
If the applicant is deeply attached to the child, as she appeared to indicate at the hearing, it would be desirable for her to accept this decision in her child's best interest. She should make this ultimate sacrifice and act differently toward her child in future in the hope that one day he will return to her of his own accord so that closer and highly beneficial relations can be established. [Emphasis added.]
59. The criterion of the child's interest also led the Superior Court to award custody of a child to a third person in Droit de la famille‑‑86, [1983] C.S. 1017. The mother obtained custody of her daughter in divorce proceedings, and subsequently lived together with another man, the respondent in this case. On the death of his ex‑wife, the father filed an application against the respondent for custody of the child and the respondent replied by seeking custody of the child for himself and deprivation of the father's parental authority. The applicant's daughter, who was then fourteen years old, clearly expressed her wish to remain with the respondent. At the Court's request, she went to stay with her father during the Christmas holidays but the attempt to foster a renewal of relations failed.
60. Durocher J. dismissed the application for deprivation of parental authority. He held that the father's various efforts to remain in touch with his daughter prevented him from concluding that there had been any "serious cause" within the meaning of art. 654 C.C.Q. Nevertheless, he awarded custody of the child to the person she regarded as her father, stating that the criterion of the child's interest set forth in art. 30 C.C.L.C. permitted such a solution (at pp. 1020‑21):
[TRANSLATION] It can thus be seen that even in a matter involving parental authority the criterion of the child's interest has been given priority.
...
Custody of a child can be given to another without depriving the parent of his parental authority, though in practice and in fact it will be difficult to exercise such authority without custody.
...
With the child's interest in mind the Court approves the choice clearly indicated by her. She was old enough and sensible enough to make such a choice. It is true that she made it on the basis of emotional considerations. That is perhaps understandable in a girl who had lost her mother not long before. Unfortunately she knew little of her father and it is natural for her to turn towards the person who has long "served as a male model", to use the language of the psychological experts who testified before this Court.
However, this choice can be justified on other grounds. As we have seen, Mr. B... has a sincere affection for her. He provides for her material needs and can continue doing so. He also provides for her education in other areas. He allows her to remain in contact with other members of her mother's family and his own.
Briefly stated, she has found the stability which a child seeks. Conversely, the Court considers that changing her surroundings would be a source of emotional and psychological problems that would not be advisable to impose on her.
61. A situation essentially similar to that in the appeal at bar arose in Droit de la famille‑‑110, [1984] C.S. 99. The child whose custody was claimed by the father had been entrusted to the boy's aunt in 1982, two months before his mother's death. He stayed there subsequently despite a request by his father in 1983 that he return to the family home. The intervention of a social worker was unsuccessful in bringing the father and his son together. The fifteen‑year‑old youth persisted in his refusal to return to his father's home. Gomery J. awarded custody to the child's aunt, while recognizing that the boy's father continued to be the sole person having parental authority after his wife's death (at p. 101):
[TRANSLATION] It is not in dispute that the applicant is the sole person having parental authority over the mis en cause, as his mother is dead (article 648 C.C.Q.)...
In attempting to resolve the issue, however, the Court must be guided primarily by the child's interest: article 30 of the Civil Code of Lower Canada states that it must be so, and the principle is repeated in the very wording of article 653 C.C.Q. Accordingly, it is not simply a matter of giving legal effect to the wishes of the person having parental authority, but instead one must consider whether these wishes are best for the son's welfare.
...
The applicant has shown a lack of interest in the mis en cause since his wife's death. It is in part because of his absence from his son's life that the relations between father and son are not close: M... mentioned that they had a communication problem and he has become convinced that his father was never concerned about him. He associates the applicant's house with the unpleasant events he experienced during his mother's last illness. He is disturbed by the possibility of having to go back there. He attends the local school and participates in activities and sports. As is natural with a young person of his age his friends are of primary importance and they are mostly in Danville. Accordingly, the respondent's residence has become his family home, and the respondent and her husband are much more his family than is the applicant. He recognizes that he has to re‑establish relations with the applicant, but it is apparent that this process will take time and patience. The psychologist who interviewed him recommended that the status quo be maintained.
The combination of these factors and the choice made by the child himself compel the Court to rule in favour of the wish expressed by him. However, a reconciliation between M... and his father will never take place if contact between them is not encouraged, so the mis en cause will be required to visit his father regularly, something to which he has no objection.
62. Finally, in a recent case Boudreault J. specifically refused to deprive a mother of her parental authority, while at the same time recognizing that it was in the child's interest for him to live with his aunt (Droit de la famille‑‑228, [1985] C.S. 808). The mother of a young sixteen‑year‑old man, filed an application for a change of custody to vary a judgment rendered in 1979 refusing to award her custody of her son and instead awarding "legal" custody of the child to his aunt and "physical" custody to his grandmother. In support of her new application, the mother alleged that she had made use of her outing rights and been able to establish very good relations with her son. The young man admitted at the hearing that his relations with his mother were good but he expressed a definite wish to stay with his aunt, with whom he had gone to live because of his grandmother's age. Boudreault J. considered that it was in the young person's interest to maintain the status quo (at p. 810):
[TRANSLATION] The Court considers that it does not appear from the evidence or the circumstances to be in the interest of this young man, who will soon be seventeen years old, to oppose his wish to continue living with his father's family. This wish would not seem in itself to be in any way arbitrary or harmful and there is no serious consideration which militates in favour of a change of physical custody at this time of his life. On the evidence, E... has no functional problem to which a possible solution must be found.
The wishes and preferences of children as regards their custody must be given due consideration by the courts, though their importance may vary with the age and maturity of the child expressing them.
63. Boudreault J. dissociated himself from the position taken by the Court of Appeal in Droit de la famille‑‑52, supra, and considered that the child's interest should have priority even where there is no serious cause for deprivation (at p. 810):
[TRANSLATION] However, despite the interpretation that the Court of Appeal gave to the articles of the Code dealing with parental authority, and despite the fact that since 1979 there has not been any evidence of a cause, serious or otherwise, for which the mother should be even partially deprived of her parental authority, this Court with respect is not persuaded that in the circumstances of the case at bar it should force a young seventeen‑year‑old man, against his reasonable wish, to live with his mother with whom he has not lived since the age of two and a half. The risk of an unfavourable reaction by the young man, which could adversely affect future good relations between the mother and the child, can only mean that the reasonable and sober wish of E... should be respected by the courts when he is only one year away from the age of majority.
Article 30 C.C. makes no distinction when it provides that the child's interest and respect for his rights should be the determining factors in decisions concerning him. While it is true that practically speaking‑‑and even this is a presumption‑‑a child's interest is such that he should stay with his father or mother, or with one of them, there may nevertheless be exceptional circumstances unconnected with that father or mother which may justify the courts allowing the child to live elsewhere. [Emphasis added.]
64. The cases cited above show that it is not necessary, for the purposes of art. 30 C.C.L.C., to come to an unfavorable conclusion as to the conduct of the person having parental authority for custody to be awarded to a third person. An example that may be cited is that of a parent whose physical handicap is such that it prevents him for all practical purposes from attending to the custody of his child: it would be unnecessary and excessive if the courts had to partially deprive that person of his or her parental authority before awarding custody to a third person. In such a situation the interest of the child, as stated in art. 30 C.C.L.C., would suffice to have the child entrusted to a third person. The same is true when the emotional estrangement between a parent and his child is involuntary or accidental.
65. It goes without saying, however, that there can be no question of depriving a parent of the exercise of custody of his child because a third person is better off financially, better educated or because he or she already has other children. A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure his child's well‑being. He must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or mother or returns to live with them. The third person must also show that, unlike the person having parental authority, he or she is able to provide the care and affection needed by the child.
66. The purpose of awarding custody of a child to a third person is not to release the parent from his or her obligations or to separate him or her from the child. So far as possible, the decision giving custody of the child to a third person must seek to encourage, by the awarding of visiting rights and the right to care for the child at the parent's home, the return of the child to its family surroundings or, if that is not possible, to re‑establish more harmonious relations. This interpretation seems to me to be in keeping with the spirit of art. 30 C.C.L.C., which is also expressed in ss. 3 and 4, cited above, of the Youth Protection Act: it favours family ties without jeopardizing the need for stability and equilibrium felt by every child.
67. Furthermore, a person having parental authority who loses exercise of the right of custody is not deprived of all the attributes of parental authority. Dividing up the exercise of parental authority does not result in the loss by the non‑custodial parent of the status of person having parental authority:
[TRANSLATION] The parent, or parents, who are deprived of the exercise of custody do not thereby lose either the right of custody itself or the attributes of parental authority in general.
(Marty and Raynaud, op. cit., at p. 445.)
68. It is true that the award of custody to a third person means that a part of parental authority, for the purposes of the exercise of that part, is lost to the non‑custodial parent. The person who has custody has control over the child's outings, recreation and associations. That person must also, as a consequence of his or her privileged position, make the day‑to‑day decisions affecting the life of the child. Nevertheless, the non‑custodial parent who is deprived of the physical presence of his or her child most of the time enjoys a right to watch over the decisions made by the person who has custody. He or she has the remedy specified in art. 653 C.C.Q. if a decision by the person who has custody appears to be contrary to the child's interest:
653. 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.
69. The non‑custodial parent also has, pursuant to his or her status of person having parental authority, the right to decide as to the major choices affecting the direction of the child's life. Thus it is the right of the father or mother to consent to the marriage of a child who is a minor and the right of the person having parental authority to give his or her opinion as to proposed matrimonial agreements (arts. 119 C.C.L.C. and 466 C.C.Q.) The person having parental authority must also consent to the care or treatment required by his or her child if the latter is under fourteen years old and, if the child is fourteen or over, the person having parental authority must be informed in certain circumstances:
42. An establishment or a physician may provide the care and treatment required by the state of health of a minor fourteen years of age or older with his consent without being required to obtain the consent of the person having parental authority; the establishment or the physician must however inform the person having parental authority in the case where the minor is sheltered for more than twelve hours, or of extended treatment.
Where a minor is under fourteen years of age, the consent of the person having parental authority must be obtained; however, if that consent cannot be obtained or where the refusal by the person having parental authority is not justified in the child's best interest, a judge of the Superior Court may authorize the care or treatment.
43. An establishment or a physician shall see that care or treatment is provided to every person in danger of death; if the person is a minor, the consent of the person having parental authority shall not be required.
(Health Protection Act, R.S.Q. 1977, c. P‑35, ss. 42 and 43.)
70. The non‑custodial parent continues to have a duty to see to the welfare and maintenance of the child (see s. 39 of the Charter of human rights and freedoms). Parental authority continues to be vested in that person and he or she exercises such attributes of the authority as are not opposed to the exercise of custody by the third person. The following passage from the reasons of Mayrand J.A. in Hébert v. Landry, [1975] C.A. 108, appears to me to be entirely applicable here though it was written in relation to a divorce (at p. 111):
[TRANSLATION] In awarding custody of the children to one of the divorced spouses, the Court is not releasing the other from the obligation to concern himself with the education of the children and contribute thereto, while continuing to have as close relations with them as possible....The appellant retains all the rights in respect of her children which she had when she was living with her husband and which have not become inconsistent with the respondent's right to custody of the children....[Emphasis added.]
71. I would therefore answer the third question at issue in the affirmative.
VII. Conclusion
72. Finally, the Court must consider whether the trial judge committed a manifest error in deciding that the evidence established that it was in the interest of H... and X.... for their custody to be awarded to the appellants. I draw attention to the fact that the majority of the Court of Appeal did not really question whether it was in the two children's interest to remain with their uncle and aunt (at p. 15):
[TRANSLATION] It may be that in the case at bar the uncle and aunt are in a better position than the father to ensure a positive and productive relationship with the children, but the father should not be deprived of part of his parental authority unless it can be shown that he is unworthy to have custody of his children or is unable to perform his duties properly.
73. I think the evidence shows clearly that in the present circumstances it is impossible for the two young people to return to live with their father. Despite the intervention of specialists, they have over the course of seven months been unable to adapt to family life with their father. Their repeated running away and clear wish to return to the appellants' home indicate the gulf separating these children from their father. Moreover, the trial judge concluded the best way for the father to lose his children would be to give him custody of them. I consider that the evidence amply supports the conclusion of Meyer J. that the presumption in favour of the person having parental authority has been rebutted in the case at bar. It has also been proved that the appellants are able to exercise custody of the two children properly. I agree with the conclusions of L'Heureux‑Dubé J.A. regarding the interest of the children in the present case (at p. 29):
[TRANSLATION] The children are now fifteen and sixteen years old. They refuse to live with their father. They have complied with the various judgments made regarding their custody but have been unable to agree with them. This situation is painful for all the parties concerned, and while one has to feel the greatest sympathy for the appellant, who undoubtedly loves his children and is anxious for their welfare, one can only deplore the fact that throughout all the tragedies he has himself experienced he has not been able to form the ties of affection with his children that ordinarily develop between parents and children. Unfortunately for everyone, a situation has developed which the courts of law are powerless to correct, especially at the present age of the children. This was the finding of the trial judge. It was based on the evidence and is in no way unreasonable, quite the contrary.
74. However, the respondent argued that the children were the victims of manipulation which prevented them from reaching free and informed decisions and the majority of the Court of Appeal accepted this argument. This suggestion was flatly denied by the children themselves in their testimony, by the appellants and by the psychologist who interviewed all the parties concerned. It is a question of credibility which is for the trial judge to decide, as he saw and heard the persons concerned. He categorically dismissed the respondent's argument and ruled out any suggestion of brainwashing. Meyer J. rejected the allegation that the appellants encouraged the children to run away or participated in their doing so and he dismissed the motion for contempt of court brought against them; this judgment was unanimously affirmed by the Court of Appeal. The only evidence to indicate that undue influence was brought to bear on the children is an undated letter written by a former friend of the mother. Pernicious as the advice it contains may be, it did not originate with the appellants and cannot in any way be ascribed to them. Moreover, there is no indication that the children followed the recommendations made in it.
75. I would therefore allow the appeal and award custody of the two children to the appellants. However, counsel for the appellants asked the Court to vary the pronouncement of the trial judgment and award them both "legal" and "physical" custody of the children. This distinction, originating in decisions of the courts, is not recognized by the Civil Code, which itself does not distinguish between custody awarded to a third person or to the child's parent (see art. 570 C.C.Q.; J. Pineau, op. cit., at p. 175, and H. Kélada, Précis de droit privé québécois (1986), at p. 182). The expression "physical custody" is misleading. I have already indicated that someone to whom a court awards the custody of a child clearly enjoys the exercise of part of the parental authority, which indeed surpasses the mere determination of the child's residence. Moreover, the concept of "garde légale", probably borrowed from the common law concept of "legal custody", is unknown to the civil law. The civil law concept of custody necessarily includes the presence of the child. Accordingly, a minor whose custody is awarded to a third person acquires the domicile of that person (art. 83 C.C.L.C.) As Professor Simler correctly observes:
[TRANSLATION] The crux of the problem is the right to determine where the child lives. It is important to remember that though the concept of custody is not defined by this right alone, it is nevertheless this right that gives the person having custody the necessary means of performing his function. It is therefore inconceivable to speak of custody of a child in the absence of this element.
(P. Simler, "La notion de garde de l'enfant (sa signification et son rôle au regard de l'autorité parentale)" (1972), 70 Rev. trim. dr. civ. 685, at p. 708.)
76. Furthermore, it is superfluous to reserve the rights associated with parental authority when a parent loses the exercise of the right of custody by judgment. As I indicated earlier, in the absence of total or partial deprivation, the parent remains the sole person having parental authority.
77. In my view, therefore, the Court of Appeal was right to reject the distinction between physical and legal custody. The Court rejected, at the same time, the concept of "joint custody".
78. The question of joint custody does not arise in the case at bar and I express no opinion either on its validity or its desirability. I simply note that, from the standpoint of terminology, the phrase "joint custody" may not be an exact description of the reality it is supposed to represent: it has been suggested that a better expression would be "joint exercise of parental authority" (see Claire L'Heureux‑Dubé, "La garde conjointe, concept acceptable ou non?" (1979), 39 R. du B. 835, at p. 860).
79. I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the Superior Court, but I would vary the latter so that it reads as follows:
[TRANSLATION] AWARDS custody of the children H... and X... C... to T... V...‑F... and D... F...;
GRANTS the father G... C... the following visiting and outing rights: a visit lasting a full weekend every three weeks, from Saturday at 9 a.m. to Sunday evening at 8 p.m., or longer if the children wish; a week during the summer holidays, or longer if the children wish, provided Mr. C... gives one month's prior notice;
ORDERS that the school reports be given simultaneously to the F... and the father by the institutions attended by the children;
ORDERS that the father have complete freedom to write and telephone his children: the telephone to be used reasonably;
ORDERS provisional execution of this judgment notwithstanding appeal and without security.
The whole without costs.
80. Like the trial judge and the majority of the Court of Appeal, I would award no costs.
Appeal allowed.
Solicitor for the appellants: Pierre‑François Mailhot, Montréal.
Solicitors for the children: Duguay, Salois, Montréal.
Solicitors for the respondent: Colas & Associés, Montréal.