2016 QCCA 1301, 2016 QCCA 1301

Droit de la famille — 161961 2016 QCCA 1301 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026135-160 (500-04-066771-156) DATE: August 8, 2016 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. M. T. APPELLANT – Defendant v. A. F.

RESPONDENT – Plaintiff JUDGMENT [ 1 ] This is an appeal from the judgment of the Superior Court, District of Montreal (the Honourable Chantal Chatelain) of May 18, 2016 (rectified May 19, 2016) granting custody of the parties' minor children to the mother (Respondent) and specifically granting her permission to return to her home in Lebanon with the children.

The judgment of the Superior Court also grants access to the father (Appellant) and enumerates a number of other accessory orders which are not in issue in appeal. [ 2 ] In petitioning this Court to overturn the Superior Court, the Appellant seeks in the alternative, an order of shared custody or, should Respondent not wish to reside in Quebec, then an order granting him sole custody. [ 3 ] The Appellant has also filed a motion to present indispensable new evidence in appeal. [ 4 ] For the reasons which follow, the appeal and the motion will be dismissed. However, before explaining the Courts' reasons, a brief

summary of the facts is necessary in order to appreciate the context of the parties' situation. [ 5 ] The parties' versions of the objectively verifiable facts as found by the trial judge do not differ though their

interpretations and attributions of intention are at odds. [ 6 ] The couple first met as university students in Lebanon in 1994 and commenced a relationship in 1997 which continued at a distance until 2001 while Appellant resided in Canada, where he obtained Canadian citizenship. He returned to Lebanon in 2001 and the couple married in 2004. They lived together in Beirut for four years during which time they visited Canada twice for two week periods. [ 7 ] In 2007, Respondent applied for Canadian citizenship which Appellant asserts was part of the couple's joint plan to move to Canada.

Respondent denies this plan. [ 8 ] Respondent became pregnant with the couples' twin girls on or around September 2008. In November 2008, Appellant moved to Dubai for work.

Respondent stayed in Beirut until December of that year when she moved to Town A with a view to giving birth in Canada which, according to Appellant, was intended so that the children would have Canadian citizenship. [ 9 ] Respondent left Town A in 2009 with the children and then in January 2010 joined Appellant in Dubai until May 2012 when she returned to Lebanon; Appellant remained in Dubai. [ 10 ] In February 2013, the family came to Town A for a period of four months ostensibly to advance Respondent's application for Canadian citizenship which was obtained on June 19, 2013.

On July 1, 2013, Respondent returned to Lebanon with the children; Appellant remained in Canada until August 2013 when he left to join the family in Beirut for seven months after which, in March 2014, he returned to Town A. [ 11 ] It appears not merely from the couples' different stated intentions but from certain actions that the establishment of a permanent residence in Canada has been an ongoing source of dispute between them. [ 12 ] On March 6, 2014, Respondent obtained from a Lebanese court, without Appellant's knowledge, an ex parte order, prohibiting the children from leaving Lebanon.

Before the Superior Court, Respondent testified to her fear that Appellant might make good his threats to simply take the children to Canada if she persisted in refusing to relocate.

[ 13 ] During 2014 to 2015, Respondent traveled to Lebanon to stay with the family. In August 2015, the parties and the children came to Town A for what Appellant describes as a definitive move. Respondent contends that this was a vacation with the return flight booked for September 2 just prior to the start of the school year in Beirut where the children were enrolled. [ 14 ] Appellant cancelled the air tickets and hid the passports.

Respondent then moved out of their apartment in the Town A area and instituted proceedings before the Superior Court. [ 15 ] Appellant filed a motion in separation from bed and board in the same court file and sought a custody order in his favour. [ 16 ] As appears from the foregoing factual recital, Appellant acquired domicile in Quebec and so the Superior Court had jurisdiction over the separation proceedings (Article 3146 C.C.Q. ) in which Respondent sought custody as he does before this Court.

Though she initially contested, Respondent acquiesced to jurisdiction before the judge during the proceedings in first instance. Accordingly, jurisdiction is not in issue and the Appellant has not raised it as an issue in his appeal brief. In any event, if jurisdiction were in issue, Quebec courts would have jurisdiction to decide custody as part of the separation proceedings as was mentioned by the judge. [1] [ 17 ] In detailed and considered reasons, the judge found that the children were domiciled in Lebanon, the ordinary residence of their primary caregiver and main parental figure, the Respondent.

She then granted custody to the Respondent and granted her permission to return to Lebanon with the twins. [2] [ 18 ] Reiterating arguments made in first instance, Appellant puts forward the following grounds in appeal: 1. The judge did not take into account the falsity of Respondent's statement that she never intended to move to Canada as demonstrated in emails during the period 1999 to 2000 which show the contrary; 2. The judge failed to consider the ex parte proceedings instituted by Respondent in Lebanon; 3.

The judge failed to consider that Respondent's return to Lebanon in 2013 was done without Appellant's consent and was thus illegal; 4. The judge failed to consider the interest of the children in awarding custody to Respondent and permitting her to reside in Beirut with the children. [ 19 ] Before addressing these grounds, the Court must rule on Appellant's motion to present new evidence. As indicated above, Appellant seeks to introduce into evidence before this Court, a liasse of emails which would indicate an intent on Respondent's part to move to Canada in 1999-2000. Such a motion is governed by

Article 380 C.C.P. which is substantially similar though not identical to

Article 509 of the old C.C.P. Accordingly, the evidence must be new and must be indispensable. [ 20 ] The emails appear to have been in the possession of Appellant at all relevant times so that they could have been produced in first instance and form part of the record. Accordingly, the evidence is not new. [ 21 ] More significantly, the evidence looked at in the most favourable light from Appellant's perspective, reflects the Respondent's intention to reside in Canada 15 years ago. Even if this had been her intent at that time, the project did not materialize.

The facts as found by the trial judge indicate that upon arrival in Quebec with the children in 2015, the Respondent had no intention of residing here but merely to visit the Appellant: [81] The Court concludes that even if the Father always had the intention to settle the family in Canada and even if, for the sake of discussion, the Mother had agreed to do so in the past, that certainly not the Mother's intention when she came to Canada in August 2015. In fact, it has been clear since at least March 2014, when she instituted legal proceedings in Lebanon, that she did not intend to settle in Canada.

As such, the evidence is not relevant to the situation of the parties in 2015 so that it is not indispensable to our consideration of the appeal.

Article 380 C.C.P. has not been satisfied and so the motion will be dismissed. [ 22 ] Turning to the grounds of appeal enumerated above, the first three grounds are purely factual and were all addressed by the judge. [ 23 ] As indicated in our treatment of the motion above, the first ground targeting intention in 1999 to 2000 is irrelevant. [ 24 ] The Lebanese proceedings were noted by the judge.

There is no proof of illegality and it is not surprising that, given the Appellant's plan for a move to Town A against the mother's will, that the latter would seek redress before the Courts of her and the children's usual residence. [ 25 ] The return to Lebanon in 2013 was specifically addressed by the judge, in detail, who found that: [85] In fact, apart from the testimony of the Father, there is no reliable evidence that the parents took any steps to settle permanently in Canada in 2013. [ 26 ] We are given no indication of a manifest error in any of these factual matters that could justify our intervention. [ 27 ] The fourth ground is not only the most important question but really the only question in a custody matter as provided by

Article 33 C.C.Q. and the decided cases. The trial judge made no error and she was not deflected by arguments concerning the Appellant's preferences of where the family should live. The judge gave weight to the element that the children had always resided with the Respondent, sometimes during the father's long absences. The Respondent was clearly the main parental figure in the lives of the children. Where the childrens' interest is not compromised, the custodial parent's decision of where to reside should be respected. [3]

[ 28 ] The judge quickly and correctly ruled out shared custody given the distance between the residences of the parents. She also dismissed Respondent's argument that the security and health of the children would be better served in Canada. The judge did not ignore the evidence presented by Respondent concerning conditions in Lebanon but found that any concerns were outweighed by the "overwhelming factors" favouring custody with the Respondent mother.

The judge also ruled out that the cultural differences between Lebanon and Canada could somehow have a significant effect on the children's best interests in a custody decision. [ 29 ] Appellant has the burden to convince us of a palpable and overriding error in the exercise of the judge's discretion to award custody to Respondent. This burden is particularly onerous in matters of custody where great deference is given by appellate courts to trial judges. [4] Appellant has failed to satisfy the Court of any such error.

FOR THESE REASONS, THE COURT: [ 30 ] DISMISSES the motion to produce new indispensable evidence; [ 31 ] DISMISSES the appeal; [ 32 ] The whole without legal costs given the nature of the matter. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. Mtre François Terroux Dunton Rainville For Appellant Mtre Miray Zahab Zahab Legal Inc. For Respondent Date of hearing: August 5, 2016