2011 QCCS 7501, 2011 QCCS 7501

Droit de la famille — 114401 2011 QCCS 7501 SUPERIOR COURT CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL N°: 505-04-019226-109 DATE : 20 octobre 2011 ______________________________________________________________________ PRESIDING : THE HONOURABLE MARK SCHRAGER, J.S.C. ______________________________________________________________________ K. F. Plaintiff v. N. H.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ JS 1319 INTRODUCTION [ 1 ] The parties were divorced by judgment of this Court dated January 19, 2009. The judgment ratified and declared executory an agreement and consent to judgment which provides that the mother has sole custody of the two minor daughters (who are now 17 and 13 years old, respectively); parental authority is shared and the judgment provides that the father has the following access rights : «

a) Every second weekend from Friday at their mother's house between 18 h 30 and 19 h until Monday morning when the children will be returned directly to school;

b) The foregoing weekends shall be extended to include all statutory holidays and pedagogical days that coincide therewith;

c) Every Wednesday for supper from 16 h at school until 20 h when the children will be returned to the mother;

d) Two periods of two weeks each, non-consecutively, during the summer; It is understood that for 2009, Defendant will have the first choice, Plaintiff having such first choice for 2010. Such a rotation between the parties shall prevail on a yearly basis; It is also understood that the parent with the first choice shall take his/her two vacation periods in such a fashion as to facilitate the other parent's chances of obtaining two periods of two consecutive weeks during the summer; Therefore, for the purpose of the present agreement, the summer period shall begin at the end of the school year until the end of the 3 rd week of August (inclusively);

e) The parties will equally share the two week holiday period every second year as follows :

i) One parent will have Christmas week (and Christmas day) with the exception of Christmas Eve; ii) The other parent will have New Year's week (and New Year's day) with the exception of New Year's Eve; It is understood that for 2009, Defendant will exercise access rights for New Year's week and Plaintiff for Christmas Week; With respect to the above holiday schedule, the parties have set the pick-up and drop-off time at 12 h (noon);

f) On father's day and mother's day, the children will be with the celebrating parent;

The parties agree that mother's day and father's day is to begin the preceding evening;

g) The parties will exercise access rights for the spring break holiday period on an alternating basis from year to year, Plaintiff exercising such access rights for the year 2009;

h) At any other time in accordance with the wishes of the parties, with the understanding that both parents shall be entitled to be present at all majors events in their children's lives; » [ 2 ] The agreement also provides that the two minor daughters shall never remain alone in the company of the father's stepson.

The parties have now agreed that this condition can be eliminated. [ 3 ] The father now seeks custody of the 13-year-old daughter while offering the mother the same access rights exercised by him in virtue of the aforementioned consent judgment. [ 4 ] As for the older daughter, the parties agree that custody remain with the mother and that this daughter may visit with her father as, when and if she wishes.

Presently, she does not visit her father and has indicated that she does not wish any contact. [ 5 ] Certain issues raised in the current proceedings are the subject matter of a partial consent to judgment filed by the parties during the hearing. The matters dealt with in this consent will be incorporated in the conclusions of this judgment. [ 6 ] The issues remaining to be decided are the custody of the younger daughter and the payment of a provision for costs claimed by the mother from the father to defray the legal expenses incurred with regard to these proceedings.

THE FACTS [ 7 ] A disproportionate amount of time, testimony and exhibits were devoted at the hearing to describing the situation of the older daughter and her relationship with her father. [ 8 ] This relationship has from the time of the parents' separation in 2004 gone from strained to nonexistent with a short interlude of positive interaction along the way. [ 9 ] The older daughter has been drinking for several years now.

While the mother testifies that she has only seen her daughter arrive home drunk twice and smelled alcohol on her breath three times, the mother appeared sufficiently concerned to take her teenage daughter to an Alcoholics Anonymous meeting at some point. The daughter did not attend beyond the first meeting. One bout of drinking during the St. Patrick's Day parade of 2011 necessitated her hospitalization for several hours. [ 10 ] There were indications that she was sexually active at the age of 14 or 15. Now at the age of 17 she is definitely sexually active. [ 11 ] She is a poor student.

While she graduated from high school, she was not accepted in the CEGEP program for which she applied and hopes to commence CEGEP in January, 2012. [ 12 ] Currently, the older daughter works in a retail store three days a week at minimum wage. [ 13 ] She is not merely rebellious but apparently resentful of her father for leaving the mother and quickly starting a new relationship with his current spouse. [ 14 ] Both children were represented by counsel at the hearing and the older sibling has expressed the desire not to have any contact with her father at least at the present time. [ 15 ] The 13-year-old who is also in the custody of her mother appears a different personality from her older sister.

She is a better student. Her school transcript shows that her marks are in line with or exceed the class average. [ 16 ] She has been described as socially awkward and has trouble making friends. She does not appear to have a crowd of friends that she often frequents but she does have one close friend living nearby. [ 17 ] She has had in the past and continues to have sleeping problems. [ 18 ] She appears to have accepted the father's new family and to have a more than cordial relationship with his new spouse manifesting affection for her and having given her a Mother's Day card last year.

The proof also discloses a good relationship with her two stepbrothers. [ 19 ] Counsel informed the Court that she is comfortable with the current arrangement of staying with her father and his family every second weekend and sleeping over on Wednesday nights. However, she has expressed the dislike of having to rise 30 minutes earlier on Thursday mornings in order to get to school on time, given the added travelling time from her father's house.

THE FATHER'S POSITION [ 20 ] As stated above the father seeks custody of the 13-year-old daughter.

He pleads a change in circumstance since the divorce judgment pursuant to Section 17(5) of the Divorce Act . [1] [ 21 ] The older child no longer has any contact with her father. [ 22 ] The younger child is now in high school, exhibits trouble sleeping, is becoming more withdrawn and has started using foul language. [ 23 ] Most significantly the father pleads that the behavior of the older child and various anecdotes of the mother's action and inaction with respect thereto and with regard to the younger child, indicate that the mother does not have the parental capacity to deal with an adolescent generally and more specifically to provide a sufficiently disciplined framework to keep a maturing adolescent on the right developmental track. [ 24 ] The mother is accused of denigrating the father and his new spouse both verbally and in her gestures (e.g. not allowing clothing items purchased by the father to remain at her home).

She is accused of thinking of herself and her own emotional needs rather than the well-being of her children and using the children for her own emotional support and of projecting this to the children so that they prefer to remain in her custody more because of guilt than attachment. [ 25 ] The father continues that the mother is not involved in the younger child's life and is not at all proactive in that she does not attend parent-teacher meetings, did not attend soccer games, is too laissez-faire (e.g. not pushing the older sibling hard enough at school) not sufficiently proactive in obtaining medical attention for the younger child when she had an infection.

ANALYSIS [ 26 ] The choice of a child over the age of 12 while not binding on the court is to be largely determinant in a custody matter [2] particularly when the desire is clearly expressed by a mature, well-balanced, sensible individual.

Whatever social awkwardness or sleep problems that were described with respect to the younger child in this case the court was presented with no evidence that she did not fall within the aforementioned description. [ 27 ] There are of course circumstances where the courts have not followed the expressed custody wishes of teenagers when deemed by the court in the best interest of the child.

However, the factual circumstances of such cases tend to be summarized by one or a combination of parental alienation [3] , serious social problems (such as excessive school absenteeism) [4] or simply an unclear or ambivalent preference of the child with regard to custody. [5] No such circumstance is manifest on the evidence presented to this court. [ 28 ] In the present case, the younger child's sleep problems have, apparently, been ongoing for a long time.

The mother has received the professional opinion that the child may « grow out of it ». [ 29 ] With regard to the proof that the younger child is socially awkward, does not make friends easily and has become more withdrawn, the court is of the opinion that it is presumptuous of the father to think that in his custody the child's personality will change.

If this were desirable, it is probably unrealistic and in any event not founded on any evidence or expert opinion to this effect in the record. [ 30 ] A more realistic result of a change in custody is that the younger child will be geographically separated from her closest friend. (The mother lives on the South Shore while the father currently lives on [Town A]). Being further from her school even if her father drives her there every day will make it more difficult to participate in extra curricular activities or even to have a coffee with friends after school.

The father testified that he contemplates moving house probably to the South Shore. However, his spouse, while confirming the South Shore was likely because of price expressed a preference to move to the Town A area. Such a move would make it very difficult if not impossible for the child to see her best friend and spend time with her sister. Wednesday evening visits with her mother would be illusory as the mother does not have an automobile. It would also be unrealistic to think that there would not be a change of school.

None of the above scenarios appear to the court to be in the best interests of this child. [ 31 ] While the mother is certainly not the most proactive in directing her children, she has set up a framework for discipline in her household in terms of curfew, meals and homework routine. Moreover, it does not appear that the younger child unlike the older sister requires any kind of heavy-handed discipline. [ 32 ] The mother does exhibit resentment for the father, his new family and the separation.

This has translated into behaviour not in the best interests of the children (e.g. verbal denigration of the father and his spouse, inflexibility in accommodating unscheduled visits with the father for special occasions such as family birthday celebrations, pettiness regarding clothing items purchased by the father). However there is no evidentiary basis in the record to question her genuine affection for her daughter.

More significantly, the position of the father rests largely on the thesis that the behavioral issues with the older child are the fault of the mother and will be repeated in the case of the younger child. There is no expert opinion or factual evidence upon which the court could come to such conclusion.

[ 33 ] It is definitely unfortunate that the children are often, as disclosed by the evidence, the victims of the parents resentment for one another. For example the father did not invite the mother to the older child's confirmation ceremony in the church. The mother was not otherwise made aware of the date and so she was absent from this important event. This is not merely petty but specifically contrary to sub-paragraph h) of the consent judgment. [ 34 ] As well, the mother's verbal denigration of the father and his new spouse must stop.

Without passing any judgment on the underlying feelings of the mother, her duty as a parent is to stop this denigration of the other parent for the good of the child. If the denigration has indeed ceased as she now maintains, then all the better. [ 35 ] By the same token, the father's verdict that the mother is incapable as a parent must stop for the good of the child. By all means he should be proactive and continue to attend parent-teacher meetings and step in for example to take his daughter to the doctor when the mother's work

schedule interferes with her ability to take the child for medical care. This is his duty towards his child; not service rendered to his former wife. [ 36 ] Accordingly and by way of

summary and given the principal of the respect for the custodial choice expressed by an adolescent and the fact that nothing in the record taken individually or cumulatively justifies interrupting the status quo and the stability that it provides to a sensitive, withdrawn 13 year old, the father's motion to obtain sole custody of the younger child will be dismissed. [ 37 ] The Wednesday visit with the father and the sleepover will continue. An adolescent's dislike of rising 30 minutes earlier is not a good reason to curtail this contact.

PROVISION FOR COSTS [ 38 ] The mother seeks a provision for costs, including tax and disbursements, in the amount of $4,097.00. The fee portion of this is $3,500.00. The account produced appears reasonable in the circumstances. Indeed the contrary was not pleaded by the father's counsel. The mother testifies that she is in debt. Her current income of approximately $39,000.00 does not allow for legal fees. [ 39 ] The father also testified that he has borrowed for legal fees from members of his family.

His income is approximately $69,000.00. [ 40 ] The court agrees that the proceedings were not excessive and certainly there is nothing to indicate that the father's motion for custody of the younger child was not taken in good faith. The father appears to have the best interest of the child at heart. [ 41 ] In the circumstances that the father's income is far superior to that of the mother but that they are both in debt and keeping in mind that the proceedings were proportionate, the court will allow half of the approximate amount sought as a provision for costs, in an amount of $2,000.00.

SUMMARY [ 42 ] With regard to the other matters, the alimentary allowance payable by the father to the mother for the children will be set at $751.58 per month as indicated by the statutory guidelines and information submitted to the court. The effective date will be October 1, 2011. [ 43 ] As agreed by the parties in the partial consent document the following special expenses will be shared by the proportion of 65% for the father and 35% of the mother : «

i) school fees with respect to CEGEP, professional school and/or university; ii) the cost of the children having to retake any courses; iii) the cost of the children's bus passes. » The quantum of any such expense shall be agreed to by the parents prior to such expense being incurred. [ 44 ] The parties also agreed to provide one another with a copy of each child's school transcript so that each parent may ensure that the child is registered in school and be able to monitor the child's progress. [ 45 ] Lastly the judgment in force will be modified to allow for the younger child to sleep over at the father's home on Wednesday night which has become the practice amongst the parties.

[ 46 ] FOR ALL OF THE ABOVE REASONS, THE COURT [ 47 ] GRANTS in part only Plaintiff's (the father's Amended Motion to modify Accessory measures dated March 14, 2011. [ 48 ] GRANTS in part only Defendant's (the mother'

s) Requête en modification des mesures accessoires et provision pour frais (amendé

e) dated September 29, 2011. [ 49 ] MODIFIES the judgment of Divorce dated January 19, 2009 and the Memorandum of Agreement therein ratified as follows :

i) Clause 6 is struck out; ii) MODIFIES clause 9 and ORDERS Plaintiff (the father) to pay to Defendant (the mother) as an alimentary allowance for the two minor children $751.58 per month effective October 1 st , 2011. iii) MODIFIES clause 10 and, without restricting the generality thereof ORDERS that the following special expenses be shared by the proportion of 65% for Plaintiff (father) and 35% for Defendant (mother) :

a) school fees for CEGEP, professional school and/or university;

b) costs for the children re-taking any course;

c) costs for the children's bus passes; provided however that the quantum of any expenses in a),

b) or

c) above is the subject of agreement between Plaintiff and Defendant prior to the expenses being incurred. [ 50 ] ORDERS the parties, promptly upon receipt, to provide the other party with a copy of each child's school transcript and any other written communication from the educational institution where the child is enrolled. iv) MODIFIES clause 4c) by substituting the following with respect to the younger child only : « Every Wednesday from 16:00 at school until the next morning when the Plaintiff (father) shall drive the younger child to school. »

v) Notwithstanding, anything to the contrary contained in the said Judgment and Memorandum of Agreement, the older child may visit with and have access to Plaintiff (father) as, when and if she so wishes; [ 51 ] ORDERS Plaintiff to pay to Defendant the sum of $2,000.00 as a provision for costs. [ 52 ] ORDERS the parties to cease to denigrate verbally the other party. [ 53 ] ORDERS that the alimentary pension for the children be payable in accordance with the « Act to facilitate the payment of support » R.S.Q. c.

P-2.2 and be indexed in accordance with law. [ 54 ] THE WHOLE without costs other than the provision for costs herein ordered. __________________________________ MARK SCHRAGER, j.s.c. Me Catherine Eustache Me Andrew H. Heft Attorneys for Plaintiff Me Carole Léger Attorney for Defendant Me Alexandre Germain M. Pierre Lemieux (stagiaire) Attorney for the children