2019 QCCA 211, 2019 QCCA 211

Droit de la famille — 19155 2019 QCCA 211 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027683-184 (500-04-070751-178) DATE: February 8, 2019 CORAM: THE HONOURABLE DOMINIQUE BÉLANGER, J.A. SUZANNE GAGNÉ, J.A. STEPHEN W. HAMILTON, J.A. F. H. APPELLANT – Defendant v. J. A. RESPONDENT– Plaintiff JUDGMENT [ 1 ] The Appellant appeals from the judgment of the Superior Court, District of Montreal (the Honourable Lukasz Granosik) dated June 18, 2018, [1] which grants exclusive custody of their two children to the Respondent, with generous access rights to the Appellant.

The judgment also orders the Appellant to pay child support, and dismisses both parties’ demands to obtain passports for the children and to travel with the children without the consent of the other. [ 2 ] The Appellant challenges the judge’s conclusions on custody, child support and travel. [ 3 ] These are factual determinations and exercises of discretion by the trial judge. [2] This Court may not intervene, unless the Appellant shows that the judge committed an error in law or an overriding error of fact. [3] The burden on the Appellant is high. [ 4 ] The Appellant, who is self-represented, did not provide the Court with transcripts of the evidence presented before the trial judge.

In the absence of such transcripts, the Court must rely on the facts as they are set out by the trial judge in his judgment. As this Court has recognized, this makes the demonstration of an error of fact even more difficult for the Appellant. [4]

(1) Custody [ 5 ] With respect to custody, the Appellant raises two issues: (1) he suggests that the two interventions by youth protection services (“the DPJ”) and the emergency operation undergone by his older daughter for appendicitis demonstrate that the Respondent, who lives with mental illness, does not have the parental abilities to take care of the children, and (2) he argues that the best interest of the children would be to live with him, as his situation allows him to offer them a better environment. [ 6 ] The judge’s reasons show that he was aware of the Respondent’s mental illness as well as the involvement of the DPJ and the daughter’s appendectomy.

He was satisfied with the testimony of representatives of the DPJ and the social workers that the Respondent has the capacity to look after the children despite her mental illness.

He was also satisfied with the surgeon’s testimony that the older daughter’s appendicitis was not in any way related to any lack of care on the part of the Respondent. [5] [ 7 ] The Appellant also argues that his situation, notably the fact that he recently bought a house in Town A, allows him to offer the children a better living environment. [ 8 ] The judge recognized that the Appellant takes good care of the children when they are with him during weekends.

He said that, but for the distance between the Appellant’s house and the Respondent’s apartment, he would have considered ordering joint custody. [6] However, the judge decided that joint custody was not in the interest of the children, who are very young, because of the travel from Town A to Town B to attend school or daycare. [7] [ 9 ] From the judge’s reasons, it appears that he carefully considered the Appellant’s argument that it would be in the best interest of the children to live with him, notably his claim that Town A would be a better environment to raise the children.

Ultimately, the judge was not satisfied that the Appellant had produced enough evidence regarding the kind of life the children would have if they lived with him. [8]

[ 10 ] The Appellant has not demonstrated any reviewable error by the judge.

(2) Child Support [ 11 ] The Appellant argues that the judge erred in calculating his income for the purpose of calculating the amount he owes in child support.

He suggests that the judge should not have attributed any income to him during the two several-month-long trips he has taken in the last couple of years. [ 12 ] The determination of a party’s income for the purpose of calculating child support is a discretionary one, in which this Court may not intervene unless there is clear error. [9] In that calculation, courts will generally attribute income to a parent who voluntarily reduces his or her income. [10] [ 13 ] Despite the Appellant’s representations to the effect that he travelled to [Country A] to connect with his family, and that he did so in the children’s best interest, the judge was not persuaded that his several-months-long absences from work were justified. [11] He therefore imputed to the Appellant a higher income. [ 14 ] The judge made no error in the legal principles or in the application of those principles to the facts. [ 15 ] The Appellant also argues that the judge failed to give him credit for amounts he had spent on food and clothing for the children.

This issue is not discussed in the trial judgment and there is no evidence before the Court that would justify an intervention.

(3) Authorization to Obtain Passports [ 16 ] Lastly, the Appellant argues that it is in the children’s best interest to visit their extended family in China, and that he should be granted the authorization to obtain passports for them and to travel to China with them without the Respondent’s consent. [ 17 ] The Court is sensitive to the Appellant’s argument that the children should know their father’s country and relatives.

It is generally in the interests of children to know about their heritage and their family. [12] [ 18 ] That said, the judge found that it was not in the interest of the children, at the present time, to travel to China with the Appellant for months at a time. [13] One of the Appellant’s children is of school age, and courts generally consider that it is in the best interest of children of school age that they attend school during the school year. [14] Courts also recognize that children must, to the extent possible, be in regular contact with both their parents. [15] It is therefore not in the interest of the children to travel for several months without regular contact with their mother.

The judge also mentioned that China is not a signatory of the Hague Convention. [16] [ 19 ] The judge also dismissed the Respondent’s request to obtain passports and to travel with the children without the Appellant’s consent. [ 20 ] The judge made no error in the legal principles or in the application of those principles to the facts. [ 21 ] In the absence of any reviewable error in the trial judgment, the appeal must be dismissed. FOR THESE REASONS, THE COURT : [ 22 ] DISMISSES the appeal, [ 23 ] Without costs , given the nature of the case. DOMINIQUE BÉLANGER, J.A.

SUZANNE GAGNÉ, J.A. STEPHEN W. HAMILTON, J.A. H. F. Personally J. A. Personally Date of hearing: February 7, 2019