2011 QCCA 1775, 2011 QCCA 1775

Droit de la famille — 112992 2011 QCCA 1775 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022015-119 ( 500-04-037692-044 ) MINUTES OF THE HEARING DATE: September 28, 2011 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY T. O. ABSENT RESPONDENT ATTORNEY S. W. Mtre Danielle Gervais (ABSENT)

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON SEPTEMBER 13, 2011, BY THE HON. STEPHANE SANSFAÇON OF THE SUPERIOR COURT, DISTRICT OF MONTREAL RESPONDENT'S MOTION FOR PROVISIONAL EXECUTION Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of September 27, 2011, hearing. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] I am seized of two motions arising from a judgment of the Superior Court, District of Montreal, rendered on September 13, 2011, in which the Honourable Stéphane Sansfaçon dismissed an application by the father, custodian of the minor child of the parties, to move with the child from the province of Quebec to the State of Michigan. In the same judgment, the Superior Court dismissed an application by the mother for exclusive custody of the child and ordered her to pay child support to the father.

The Court also fixed visiting rights for the mother as non-custodial parent. [ 2 ] The father asks for leave to appeal from the judge's refusal of his application to move to Michigan with the child. The mother has filed a motion for provisional execution of the judgment notwithstanding appeal. *** [ 3 ] The child is seven years old. She has lived principally with the father since the breakdown of the relationship, which took place soon after her birth. The father is an American whose extended family is in Michigan. He wishes to return there, having secured a place to live and a job.

He is of the view that the setting would be conducive to the best interests of the child. The mother opposes the move. She has limited visiting rights which, she says, have already been made more difficult to exercise since the father and the child moved to a small town some 55 kilometres from her home. While she has not always seen the child as frequently as permitted under

previous court orders, she now wishes to see the child more. The parties’ communication – largely through email – is sometimes strained. She fears that if the father and the child move to Michigan – some 10 to 12 hours drive away – she will see less of the child with the likely effect that they will become estranged. She claims this is not to the child’s advantage. *** [ 4 ] The Superior Court reviewed the facts in detail and sought to apply the principles set forth in Gordon v. Goertz [1] to the circumstances.

The judge had in hand a psychosocial evaluation prepared by a social worker who recommended that the father retain exercise of the right of custody and be permitted, subject to certain conditions, to move with the child to Michigan. [ 5 ] While he decided to leave custody with the father, the judge nevertheless decided that allowing the child to move with the father would not be in her best interest. He was of the view that the proper development and best interest of the child commanded that the girl spend more time with her mother.

The father’s conduct through the proceedings was, for the judge, indicative of his desire to limit the mother’s relationship with the child as much as possible. While the father’s position evolved over the course of the trial, the judge was of the view that the father felt that a deeper relationship between mother and daughter was not in the latter’s interest. With this in mind, the judge decided not to authorize the move.

The father had stated that in this eventuality he would not move to Michigan and that he could resume his position at a local university in January 2012. *** [ 6 ] The father seeks leave as a self-represented litigant. In a well-worded motion and a thoughtful oral pleading, he argues that the judge erred in his evaluation of the child’s best interest in refusing to authorize the move to Michigan. He alleges several errors of fact by the judge, but rests his position on what he sees as a mistaken application of the criteria in Gordon v. Goetz to the case at hand.

Further, he urges that his circumstances are broadly similar to that of L.P. v. J.R. , [2] a case in which my colleague Thibault, J.A. allowed a custodial parent to move from Quebec to France notwithstanding the negative impact that it would have on access to the child for the non-custodial parent. Finally, the father argues that the judge erred in his understanding of the father's attitude to the child's relationship with her mother. *** [ 7 ] I am of the view that leave to appeal should be dismissed.

The father has not pointed to a reviewable error by the judge nor has he identified a question that deserves the attention of the Court pursuant to

article 26 C.C.P. In these circumstances, the mother's motion for provisional execution notwithstanding appeal is without further object. *** [ 8 ] The father failed to convince me that the judge erred in his application of Gordon v. Goertz . At paragraph [45] et seq . of his reasons, the judge set forth the relevant criteria from that case, noting the first-order consideration of the best interest of the child. He did not, in my view, overemphasize the criterion of maximizing contact between the child and both parents at the expense of the best interest of the child.

In fact, he explained why the move was ill-advised for reasons other than the mere distance it would put between the child and the non-custodial parent. Key to his reasons is a finding of fact: the judge was very explicit in setting out his view of the evidence that the father acted, on occasion, in a manner that was detrimental to the development of an appropriate relationship between mother and child.

At paragraphs [64], [74], [79], [85] and [86], the judge notes that this consideration was a dominant factor in his view of the case. [ 9 ] The father's attitude to the relationship between the non-custodial parent and the child weighed against the move. The judge felt that the "crucial" pre-condition to the move, as identified by the social worker, was that the father be supportive of the child's relationship with the mother. He decided that this condition had not been met (paragraph [83]).

Overall, the evidence of the father's attitude explains in large measure why the judge concluded, at paragraphs [102] to [104], that the best interest of the child would be to stay with the father in Quebec where the chances for an appropriate relationship between mother and child are more substantial. [ 10 ] Added to this was a consideration that the travel time associated with the move could have an unsettling effect on the child's schooling (paragraph [101]) notwithstanding the child's resiliency that he noted at paragraph [93]. [ 11 ] When pressed at the hearing, the father expressed his disagreement with the judge's view of his attitude to the mother-child relationship but was unable to explain what overriding and palpable error might justify a decision by the Court to disturb this finding of fact. [ 12 ] The judge did recognize the principle that a custodial parent has the right to pursue his or her own path in life and that, on occasion, this involves moving away from the non-custodial parent.

In keeping with Gordon and the decision of this Court in L.P. v. J.R . cited above, the judge understood that this sometimes means that a move is justified even though the non-custodial parent's access rights may be diminished. But in this case, he considered that the father's attitude to the child's relationship with the mother meant that, on balance, the move was not in the child's interest. [3] [ 13 ] In sum, the petitioner had not demonstrated that the conditions for leave under

article 26 C.C.P. have been met. FOR THESE REASONS , the undersigned: [ 14 ] DISMISSES the motion for leave to appeal; [ 15 ] DECLARES the motion for provisional execution to be moot; [ 16 ] There will be no order as to costs on the motions.

NICHOLAS KASIRER, J.A.