The Quebec Court of Appeal overturned a decision that ordered a father to pay $30,000 in damages for parental alienation but held that parents can be held liable during the course of the exercise of parental authority under civil law, a recourse however that will only succeed in “exceptional and unequivocal” situations.
The long-awaited decision, widely lauded by family law experts, held that the Quebec legislator has not ruled out the possibility of civil liability in matters dealing with parental authority, but its threshold must be high to prevent civil liability from becoming an “instrument for policing, or even regulating, the art of parenting,” said Quebec Appeal Court Justice Benoît Moore in Droit de la famille — 24915, 2024 QCCA 767.
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“What the Court of Appeal is telling us is that, firstly, civil liability cannot be excluded from family law; secondly, only in exceptional circumstances can such a remedy be envisaged; and, finally that the courts will have to be very careful because we don’t want to play armchair quarterbacks with decisions parents have had to make, or were obliged to make, while they were educating or looking after the child,” noted Michel Tétrault, Ad. E, a family law expert who has written “Droit de la famille.” The Appeal Court decision, while it opens the door to damages claims for parental fault, sends a “very clear message” that it is an exceptional remedy with an “extremely high” burden of proof that must be anchored by concrete evidence “proven and established” by an expert over a “very long period,” remarked Montreal family lawyer and author Marie Christine Kirouack. Moreover damages in such cases, if granted, will be minimal and unlikely to offset the expenses incurred in experts’ fees, added Kirouack, Ad. E. “It’s a very wise decision,” said Kirouack. “I’m glad the Appeal Court set a very high bar otherwise it would have been very dangerous.” The Quebec Appeal Court set out very clear guidelines for the lower courts to apply “because there is a backlog of cases that have surfaced since the lower court awarded damages for parental alienation, said Montreal family lawyer Valérie Laberge, who successfully pled the case. “We can sense from the ruling that there is a need to guide judges and to discourage them from awarding sizeable damages when they are shocked by what they hear,” said Laberge. In April 2022, Quebec Superior Court Justice Élise Poisson held that a a father committed a civil fault after she found that he failed in his duty to exercise his parental authority jointly with the mother by systematically ignoring her and exercising his parental authority unilaterally. A reasonable person in the same circumstances, held Justice Poisson, would not have remained “passive” and would have “actively collaborated” to search for “concrete means” to preserve the child’s ties with his mother. Justice Poisson ordered the father to pay the mother $30,000 in compensatory damages due to his behaviour that led to the rupture of the mother-son bond. Justice Poisson reached those conclusions after holding that the principle established by the nation’s highest court in the landmark decision in Frame v. Smith, [1987], 2 S.C.R. 99 does not hold sway in Quebec. In Frame, a divided Supreme Court of Canada found that tort actions for denial of access was not available in Canada. But Justice Poisson held that Frame does not apply in Quebec because it is a common law case whose system of torts differs from article 1457 of the Civil Code of Quebec, and because the Quebec legislator did not create immunity for acts performed in the exercise of parental authority. The Appeal Court partially overturned the lower court decision, holding that the evidence did not establish that the father’s actions led to the relationship breakdown between the mother and the child. In a unanimous decision, the Appeal Court however upheld the lower court’s finding that neither the reasoning nor the principle established in Frame applies in Quebec. Civil law, unlike common law, bases its compensation regime on a general liability clause. In civil law, an action for compensation for harm caused by a fault exists, unless the legislator has excluded or tempered it by providing for relative or absolute immunity, or by creating another remedy, such as a special social compensation scheme, noted Justice Moore in the 30 page-ruling in reasons concurred by Justices Guy Cournoyer and Christine Baudouin. The Appeal Court also rejected the contention, raised by the father, that the Quebec legislator views family law as a law complete in itself that contains its own sanctions. Justice Moore found that while there may be several public policy reasons that may justify a cautious approach to civil liability in the exercise of parental authority, it cannot impede a judge to set aside the application of article 1457 of the Civil Code on the grounds that family law is in principle in complete. “It is up to the legislator to say so, and to do so expressly,” said Justice Moore. But the nature and limits of a liability action in these matters must be strictly drawn, added the Appeal Court. The unilateral exercise of parental authority or the refusal to participate in an efficient co-parenting arrangement, as held by the trial judge, must be ruled out, said Justice Moore. “It is impossible, and counterproductive, to attempt to isolate one or more specific behaviours of a parent without taking into account the family dynamic as a whole, all the while imagining, in a disembodied way, an ideal parent,” underlined Justice Moore. “Day-to-day parenting is a delicate balancing act marked by constant subtlety.” “Justice Moore rightly points out, unlike the trial judge, that the concept of reasonable parent and finding fault during the exercise of parental authority is not very clear,” said Tétrault. “He’s right because a reasonable parent is assessed according to the environment, living conditions, all kinds of things. So it’s far from obvious.” The Appeal Court also held that fault cannot be based on the notion of parental alienation as it is a concept whose “contours” are imprecisely defined. Rather fault should be based on proof of actions and remarks, generally numerous and systematic, over a long period of time, which demonstrate the existence of a strategy aimed, without justified reason, at affecting the child’s perception of the other parent, leading to a breakdown in the relationship, held Justice Moore. “The fault in question here presupposes that the break-up cannot be explained by complex, multi-factorial family dynamics, but rather by the behaviour of the parent who is accused of alienating conduct,” added Justice Moore. “Such proof, which will often require expert evidence, will prove demanding and difficult to satisfy.” Laberge believes that the high threshold set out by the Appeal Court will prove to be dissuasive. “What the Appeal Court did in this decision was to frame it in such a way that almost no one will take this recourse,” said Laberge. That’s an assessment shared by Kirouack, who is a member of the Board of Directors with the Quebec Family Lawyers Association. “Many of us are delighted with the Appeal Court’s decision because if it had not overturned the lower court decision we could have ended up with some absolutely appalling sideslips in some cases,” said Kirouack. Tétrault, who described the ruling as prudent and wise, said the Appeal Court was “right to close doors” for civil liability actions in cases dealing with parental authority. “They had to set limits, because it would have become a living hell, not only for the parents, but also for the courts.” This story was originally published in Law360 Canada.LOWER COURT RULING
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