2012 QCCA 1261, 2012 QCCA 1261

Droit de la famille — 121775 2012 QCCA 1261 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022624-126 ( 500-04-055321-112 ) MINUTES OF THE HEARING DATE: July 3, 2012 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A. PETITIONERS ATTORNEY L. K. T. K. C. I. Mtre Nicholas Dodd DIONNE SCHULZE Charlotte Chicoine-Wilson (student) RESPONDENT ATTORNEY D. C. Mtre Heather MacLeo d MIS EN CAUSE ATTORNEY DIRECTOR FOR CIVIL STATUS TA. K.

Defendants' motion for leave to appeal an interlocutory judgment rendered on March 30, 2012 by the Honourable Madam Justice Nicole Bénard of the Superior Court, District of Montreal. Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9 h 30 Commencement of the hearing. 9 h 30 Submission by Mtre Dodd. 9 h 57 Submission by Mtre MacLeod. 10 h 02 Reply by Mtre Dodd. 10 h 06 Recess. 10 h 26 Resumption of the hearing. 10 h 26 By the Court: Judgment – see next page. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] Petitioners L. K., T. K. and C.

I. seek leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal, (the Honourable Nicole Bénard presiding), rendered on March 30, 2012, which dismissed their application for permission to communicate and file in the record an expert's report. The report deals with the psychological well-being of children generally in aboriginal communities who are subject to changes in custody orders.

[ 2 ] The motion for leave to appeal was deferred to the Court by St-Pierre, J.A., sitting in chambers, on May 9, 2012. *** [ 3 ] The context in which this matter arises is an unusual one. [ 4 ] According to the petitioners' original motion, the parties disagree as to the filiation of Ta. K., born on [...], 2010. L. K. is the biological mother of the child. She is a person of Inuit ancestry and an Inuit beneficiary under the James Bay and Northern Quebec Agreement. T. K. and C.

I. are also persons of Inuit ancestry and Inuit beneficiaries under the JBNQA who claim to be the adoptive parents of the child pursuant to aboriginal customary law. Evidence has been presented that D. C. is the biological father of the child. [ 5 ] The child currently resides with T. K. and C. I. in Town A, in Northern Quebec. Mr. C. lives in Town B. [ 6 ] In the principal action in Superior Court, Mr. C. has brought proceedings to claim status as father of Ta. and to contest the status of the child as established by the customary adoption which, he argues, is not valid in law.

He has also brought a motion to obtain the exercise of the right of custody of Ta..

On November 18, 2011, a judge of the Superior Court ordered joinder of the actions. *** [ 7 ] The precise character of the expert's report requested by the petitioners was described by them in their motion in Superior Court as follows: The present motion seeks: […] The permission of the Court for the Defendants to file the expert report of a psychologist on the factors that are important in the healthy psychological development and well-being of children and the possible effects of a change in custody on these factors as well as any special issues that must be considered regarding the healthy psychological development and emotional well-being of children from remote Aboriginal communities, by no later than June 30, 2012 […]. [ 8 ] In a judgment rendered orally in which she dismissed the application to file the expert's report, the motions judge gave the following reasons: En ce qui concerne la demande d'expertise de l'enfant mineur: Considérant qu'à cette étape le Tribunal ignore si l'adoption de l'enfant est légale ou non; Considérant que le Tribunal ignore qui sont les parents légaux de l'enfant; Le Tribunal refuse qu'une expertise soit ordonnée concernant la garde de l'enfant. [ 9 ] The expert's report was completed and remitted to the parties on June 19, 2012 pending the decision of the Court on this application for leave. *** [ 10 ] Should leave to appeal be granted? [ 11 ] The petitioners contend that an interlocutory judgment that refuses to allow the filing of an expert report "orders the doing of something which cannot be remedied by final judgment" within the meaning of

article 29 C.C.P. They are of the view that such a report is relevant to custody and access in this case and that Mr. C.'s status as a father does not, whether or not it proves to be legal, preclude any of the parties from asking for custody of the child. They seek to file the expert's report immediately such that, pursuant to

article 402.1 C.C.P., the expert who prepared the written report may later be heard in court. For the petitioners, the filing of the report cannot therefore be considered to be premature. [ 12 ] We agree that leave should be granted. [ 13 ] First, in the circumstances of this case the refusal to allow the filing of the expert's report at this stage of the proceedings could not be remedied by final judgment on the merits.

As was observed in Omni Capital inc. by our colleague Rochon, J.A., the refusal to allow the filing of an expert's report can be the equivalent, in its effects, of an interlocutory judgment maintaining an objection to evidence. [1] This does not, of course mean, that leave should necessarily be granted in all such cases. But in the present circumstances, the pursuit of justice within the meaning of

article 511 C.C.P. does require leave to be granted. The refusal to allow the filing of the report would prevent the petitioners from bringing evidence relevant to the determination of the best interest of the child for custody and access until after filiation has been established. On this basis, leave should be granted. *** [ 14 ] Should the appeal be allowed? [ 15 ] The motions judge appears to have been of the view that the filing of the report would be inappropriate, or at least premature, until such time as it is determined whether the adoption is valid or not.

It should, however, be recalled that one of the motions before the Superior Court is an application for custody of the child, and access to the child is a matter currently in dispute. [ 16 ] It is an established principle that the exercise of the right of custody can, in some circumstances, be awarded to third persons who are not parents, even against the wishes of a father or mother, should that be in the best interest of the child. In C.(G.) v. T. (V.-F.) , [2] Beetz J. of the Supreme Court wrote:

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. [ 17 ] It cannot therefore be excluded that a court would award custody to T. K. and C. I. even in the absence of a finding that they are the adoptive parents of the child in law. Moreover, following C.(G.) v.

T. (V.-F.) , this Court has indicated that maintaining the child in his or her "milieu habituel de vie" is a factor, among others, to be taken into account in discerning the child's best interest in connection with a custody dispute between a parent and third persons. [3] [ 18 ] The better view is that the expert's report could, therefore, have a bearing on the determination of custody, whatever the conclusions at which a court may arrive on the legality of the customary adoption, and should not be excluded at this stage.

With due respect for the motions judge, it was inappropriate for her to decide that the expert report should not be considered prior to filiation being established. [ 19 ] Mr. C. raises two further objections to the filing of the report. [ 20 ] First, he objects to the unfair costs it will impose upon him, arguing that the petitioners' legal fees are subsidized whereas his own are not. This argument is without merit.

Without trivializing the hardship that legal costs represent to either of the parties, it would be wrong to dismiss the motion on this sole basis where the best interest of the child is in play. [ 21 ] Secondly, Mr. C. objects to the filing of the report at this stage because of his view that it deals only with generalities and not the specifics of the case. As such, he argues, it will not be as useful as would be a psychosocial evaluation of the whole of the child's circumstances as they are relevant to best interest.

He also fears that the expert report, in stressing the general advantages of sustaining the ancestral heritage of children in aboriginal communities, will be biased against him. [ 22 ] This objection also represents an insufficient basis for maintaining the refusal to allow the expert's report. Mr. C.'s argument that the report is less valuable because it only speaks to generalities goes to its probative weight.

The judge of the Superior Court charged with the determination of the child's best interest will have that task of measuring the admissibility of the report and the value to be attributed to it as against the rest of the evidence. He or she may or may not choose to take guidance from the expert evidence. But that matter is best decided down the road by the trier of fact. FOR THESE REASONS , the Court: [ 23 ] GRANTS the motion for leave to appeal; [ 24 ] ALLOWS the appeal; [ 25 ] GRANTS the petitioners' application to communicate and file an expert's report in the record; [ 26 ] THE WHOLE, without costs.

NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. MARIE ST-PIERRE, J.A.