R. V. RESPONDENT, 2011 QCCA 1243

Droit de la famille — 111940 2011 QCCA 1243 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021075-106 (505-04-017438-086) DATE: June 27, 2011 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. C. B. APPELLANT – Plaintiff v. R. V. RESPONDENT – Defendant JUDGMENT [ 1 ] The judgment of the Superior Court, District of Longueuil rendered on September 13, 2010 by the Honourable Mr.

Justice Richard Nadeau adjudicated competing motions of the parties by which they each sought various orders relating to the custody of their two children, X, who is now 13, and Y, who is now 10. [ 2 ] C. B. and R. V. lived together as a couple for 12 years before Ms. B. precipitously left the family home in Town A on September 15, 2008. She did so because she believed she had seen juvenile pornography on Mr. V.’s computer, and she considered herself to have been a victim of conjugal violence, including violence of a sexual nature. [ 3 ] Although Mr.

V. was a consumer of adult pornography, a police investigation of his computer did not disclose any juvenile pornography, with the result that no criminal charges were brought against him relating to its possesion. On the other hand, based on Ms. B.'s complaint, Mr. V. was charged with simple assault, [1] sexual assault [2] and non-consensual anal intercourse. [3] In addition, he was obliged to abstain from communicating with Ms. B.. [4] Mr. V. has yet to be tried for these alleged offences. [ 4 ] When Ms.

B. left Town A with the two children, she ultimately landed at the home of her parents, who live in Town B, after spending brief periods in battered women facilities in Town A and Town C. For the 2008-09 academic year, X and Y were enrolled in A School, an English language elementary school in Town D operated by the A School Board. [ 5 ] Ms. B. believes that her two children show symptoms of autism, although they have never been diagnosed as having that condition.

They nevertheless do appear to have certain learning difficulties, which were reflected in the assessments and comments in the school report cards of both children. [ 6 ] The parties signed interim consents on October 28, 2008 and February 25, 2009 by which they agreed that Ms. B. would have custody of X and Y, on the conditions mutually agreed upon, until the hearing on their respective motions. On June 9, 2009, however, on the day that had been fixed for the trial, Picard, J. issued a safeguard order when a change of counsel acting on behalf of Ms. B. was in the offing. She heard testimony from Ms.

B. and an expert engaged by the parties, Diane Pérusse, who recommended that it was in the interest of the two children that Mr. V. assume custodial responsibility for them, essentially because of her view that Ms. B.'s narcissism posed a risk to the children. [ 7 ] The safeguard order gave effect to that recommendation, and provided for Ms. B. having access to the children during stipulated periods of the summer of 2009. Accordingly, Mr. V. installed the children in his residence in Town A, and enrolled them in an English language public school in that community. [ 8 ] On January 28, 2010, Ms.

B. presented a motion to Cullen, J. seeking an interim order to change the custodial arrangements that had been ordered by Picard, J. That application was dismissed. Cullen, J., however, did order Mr. V. to pay Ms. B. $800 for her travel costs to see the children, subject to future adjustment if necessary. He further acknowledged Mr. V.’s undertaking to pay the travel costs of the two children for the exercise of the two visits Ms. B. was scheduled to have between then and June of 2010. [ 9 ] The matter then came on for hearing on the merits before Nadeau, J.

After hearing the parties, various ordinary witnesses and expert consultants, he issued an extensive order supported by elaborate reasons, the effect of which was to dismiss Ms. B.'s motion and grant substantially that of Mr. V.. Insofar as relevant for present purposes, his order provided that:

• Mr. V. would have custody of X and Y in Town A, and would be mainly responsible for them and their needs, with the two children being enrolled in specified English language schools in Town A; • Mr. V. would have the authority to make any necessary medical or academic decisions without any prior consultation with Ms. B., although he would be obliged to inform Ms. B.'s father in writing of any such decision he had made within 15 days of the decision; • Mr. V. would be obliged to communicate any other information concerning the health or academic status of the children in writing to Ms.

B.'s father within 15 days of his learning of such information so as to adequately inform Ms. B.; • Ms. B. was ordered not to communicate directly with the administration of any school the children were attending, nor with any of their teachers or staff in such schools, nor with any medical personnel. Nevertheless, she was authorized, through the intermediary of her father, to request such information in writing, by ordinary mail. To the extent any such request appeared exaggerated to Mr. V., he could identify same in a list to be sent to Mr.

B., with a copy to be sent to the coordinating judge of the District of Longueuil; • Ms. B. would enjoy extensive rights of access, with specification of the location and means by which the transfer of the children, outside the presence of the parties, would be effected; • Telephone communications initiated by the children at specified times during the week not to exceed 15 minutes would be permitted and were to be encouraged by Mr. V., and at any other time the children wished to speak to their mother, also for a maximum duration of 15 minutes; • When the children were with Ms.

B., she could only arrange emergency medical appointments, with Mr. V.’s prior consent being required for any other medical appointment. In the event Mr. V. did not consent to the latter, Ms. B. was ordered to abstain from arranging them and any other kind of expert consultation of any nature whatsoever; • Ms. B.’s request for the payment of a provision for costs of $25,000 was dismissed; • In light of the excesses observed during the course of the proceedings, including the excessive costs occasioned to the parties, Ms. B. was ordered, pursuant to

article 54.1 C.C.P. , to obtain the prior authorization of the coordinating judge of the District of Longueuil to institute any future proceedings concerning the custody of the children or any other problem relating to them, subject to her right to appeal any such judgment of the coordinating judge or the judgment thus rendered by the trial judge. [ 10 ] The principal conclusion Ms.

B. seeks in appeal is to reverse the judgment of the Superior Court and award her custody of X and Y, with both parents enjoying parental authority and being obliged to consult each other on all important questions relating to the health and education of the children. Amongst the other conclusions sought are orders that Mr. V. pay all the travel expenses relating to the access rights he would enjoy, that Ms.

B.'s request for a provision for costs of $25,000 be granted, and that the requirement that she obtain the prior authorization of the coordinating judge of the District of Longueuil prior to instituting any new proceedings related to the custody of the children or any problem relating to them be struck. [ 11 ] Before assessing Ms. B.'s appeal, it is important to take note of the trial judge’s findings of fact in light of the underlying premise that an appeal is not a rehearing of the case as if the trial judgment did not exist.

An appellate court can only substitute its own findings for those of the trial judge if they are affected by palpable and overriding errors that are determinative of the outcome. [5] A palpable and overriding error is one that can be plainly seen. [6] [ 12 ] The trial judge proceeded to an extensive review of the evidence. Here are his principal findings of fact. [ 13 ] For several years, Ms. B. has suffered from depression, personality disorder, and, at one point, a significant anorexic syndrome that apparently led to some attempted suicides.

Following the birth of Y in May of 2001, the parties moved to Town A, where Mr. V. had secured a job for a train company transporting iron ore from northern Quebec to Town A. Ms. B. was never happy in her new surroundings. [ 14 ] Although Ms. B. thought Y had developed a brittle bone syndrome known as imperfect osteogenesis, he was never actually diagnosed with this malady. Nevertheless, despite numerous medical consultations, Ms.

B. continued to believe he did suffer from it, and as a result, she was overprotective of Y. [ 15 ] X was found to suffer from a central auditory disorder, the effect of which was to cause a delay between his perception of a sound, word or phrase and its reception by the brain, which would require special attention in a school setting. [ 16 ] Ms. B.’s belief that the medical and professional services in Town A were inadequate led her to exert considerable pressure on Mr.

V. to drive her the lengthy distance between Town A and Town C for medical appointments to deal with her medical problems, real or imagined, as well as those of the children. Indeed, Mr. V. had to use all his vacation time for these sojourns to Town C, which were of little or no benefit to either Ms. B. or the children. [7] [ 17 ] The tipping point in the parties' relationship appears to have begun when Ms. B. selected a much more lengthy breast reconstruction process that lasted close to a year after she had undergone breast surgery, rather than one that would have been of much shorter duration. Ms.

B. spent most of the recovery period at the home of her parents, while Mr. V. looked after the children back in Town A. It was shortly after her return to Town A in the summer of 2008 that the couple's relationship seemed to deteriorate to the point revealed by the evidence. [ 18 ] Much of the problems the trial judge attributed to Ms. B. relates to her continuing belief that she observed juvenile pornography on Mr.

V.'s computer, despite extensive police investigations that do not support that conclusion. [8] She has also taken to considerable involvement with women's' victims rights therapy groups with a view to helping her understand her perceived status as a victim of conjugal violence. The extent of her involvement as such, she contends, prevents her from finding remunerative employment. It suffices to say that the evidence is far from confirming her assertions in these respects.

[ 19 ] The trial judge's assessment of Ms.

B. was unequivocal, and is well reflected in the following extract from his judgment: [82] […] Elle témoigne en chef devant le soussigné d'une façon qu'on pourrait qualifier d'enjôleuse, ayant toutefois beaucoup de difficultés à répondre simplement à des questions et à combattre une verbosité dont elle admettra elle-même être sujette, ce que le soussigné peut confirmer. [83] En effet, toute réponse implique de longs préambules, des digressions vers toutes sortes d'événements périphériques qui n'ont aucune importance et que le témoin utilise, elle est fort habile et intelligente, pour mettre du contexte ou de la couleur à ses réponses en tentant de les qualifier favorablement pour elle et défavorablement pour Monsieur. [84] Questionnée sur divers sujets dont la violence alléguée contre Monsieur, elle dira, larmes émotives aux yeux sur commande, comment elle n'aurait jamais dû endurer les méchancetés verbales et physiques de Monsieur pendant toutes ces années sans se décider à porter plainte, ce qu'elle a fait en septembre 2008. [85] En somme, tout son témoignage en chef devant le soussigné veut créer une impression de victime, de personne abusée, de personne sodomisée contre son gré, de personne tenue en otage et contrôlée à tous égards par un être dominant, donc voulant amener le soussigné à conclure qu'elle et ses enfants ont été des victimes d'un homme violent et contrôlant pendant toutes les années de vie commune et de vie des enfants. [86] Toutefois, le portrait a changé quelque peu lorsque Madame a été contre-interrogée. [87] À des questions relativement anodines, Madame devient agressive, narquoise, dubitative, se pose ou pose des questions en retour, bref, montre une personnalité potentiellement irascible et surtout, argumentative. [88] En somme, la perception du soussigné c'est que, dès que quelqu'un n'est pas d'accord avec Madame ou n'entre pas dans le tourbillon de son imaginaire, il devient un ennemi. [89] Quant aux autres, s'ils sont favorables à sa thèse et s'ils croient à tous égards ses propos, fussent-ils réels ou imaginaires, ils deviennent des alliés et sont indéfectibles. [90] Sur cette note d'ailleurs, il est dommage de voir comment elle a réussi à entraîner ses parents de 72 et 69 ans dans cet ouragan. [ 20 ] After noting that Ms.

B.'s parents had invested some $125,000 on behalf of their daughter to prosecute this case from June of 2009 until just before the trial, without taking account of the expense of the trial itself, the trial judge went on to describe the impact of all of this on Mr.

V.: [94] Parallèlement, Monsieur vit avec une épée de Damoclès au-dessus de la tête dont il n'a cesse de tenter de s'extirper. [95] Après des accusations au criminel concernant de la pornographie infantile qui n'ont jamais été avérées malgré les nombreuses affirmations de Madame à qui voulait l'entendre qu'elle avait vu de très jeunes filles nubiles sur l'ordinateur de Monsieur, Monsieur a par la suite été accusé soit d'avoir violé les conditions de non-communication, ce qu'il a contré en démontrant qu'il était impossible qu'il ait communiqué avec Madame de l'endroit où il était sur son train entre ville A et ville E alors que Madame prétendait qu'il avait voulu communiquer avec elle contrairement à l'ordonnance. [96] De plus, il s'est présenté à la Cour, dit-il, avec des documents et des messages- texte dont il a fait des copies et qui ont été reproduits en D-5, textes qui semblent démontrer le genre de personnalité de Madame, soit que d'un côté de la bouche Monsieur est un monstre mais de l'autre côté elle voudrait absolument qu'ils puissent revenir ensemble, qu'elle regrette ce qu'elle a fait, qu'elle a cessé de prendre une certaine médication qui l'aurait rendu incapable de réaliser ce qu'elle faisait etc. … [97] À l'enquête, et après que Madame ait indiqué qu'elle avait tous les documents concernant l'utilisation de son téléphone cellulaire dont elle reconnaissait le numéro qui apparaît en haut des pages produites comme D-5, elle reviendra à la Cour pour dire que l'information n'existe pas, qu'il y a eu un changement d'appareil, qu'il lui a été impossible de retracer quoi que ce soit qui permettrait de confirmer qu'elle a envoyé, le 20 octobre 2008, au moins quatre messages texte entre 9h00 le matin et 23h00 le soir à Monsieur dont le contenu est explicite. [98] En somme, en présence de ces documents, la poursuite pour violation des conditions aurait également été abandonnée. [9] [ 21 ] The trial judge then considered an unusual incident that occurred in the early part of September of 2008.

Ms. B. acknowledged having emailed erotic photographs of herself to Mr. V.. They somehow ended up being distributed, in his name, to some of his work colleagues, together with a provocative message vaunting her physical attributes. Mr. V. denied having sent this email, and the trial judge surmised that Ms. B. had sent it to them. [ 22 ] His conclusion as to the fitness of Ms.

B. to be the custodial guardian of X and Y was devastating: [107] De tout ceci, le Tribunal vient à la conclusion, comme le font presque tous les experts au dossier, que Madame est une manipulatrice, qu'elle souffre par ailleurs de problèmes de santé mentale, et elle dit elle-même d'ailleurs être encore médicamentée au Prozac et à l'Ativan et ce depuis au moins 1997 par son psychiatre le Docteur Cervantes, et que Madame est donc un être manipulateur et dangereux et que, dans les circonstances, il est de loin préférable que les enfants aient des contacts avec elle mais que ce soit Monsieur qui prenne les décisions les concernant tant dans leur éducation que dans leur croissance et ce, pour de nombreuses années à venir. [108] En effet, il serait malheureux que les enfants soient retirés de leur milieu à ville A, il serait épouvantable de les retourner chez leur mère et chez leurs grands-parents qui ne semblent pas avoir été en mesure de faire le partage entre la réalité et les besoins de leurs petits-enfants qu'ils disent aimer, et les lubies et exagérations de leur fille, reconnaissant par ailleurs que les grands-parents sont parfaitement adéquats pour aider les enfants lorsque ceux-ci seront en visite chez-eux avec leur mère.

[ 23 ] Apart from considering the fitness of the parties to assume custodial responsibility for X and Y, the trial judge also took account of the manner in which their learning difficulties could be accommodated at the schools they were attending in Town A as opposed to the one in which Ms. B. had enrolled them for the 2008-09 academic year. Despite differences in the availability of some services, other factors such as the fewer number of students in the classes in Town A as opposed to the one they had attended in Town D lessened the necessity for exactly the same services.

Moreover, the expert testimony and that of Mr. V. led the trial judge to conclude that the services available in Town A were adequate for their needs, and that the children had adjusted very well to the scholastic environment in Town A, especially in light of their not being subjected to their mother's anxiety and occasional hysteria. [ 24 ] Although the conclusions in Ms. B.'s factum seek the reversal of the judgment of the Superior Court and the transfer of custody of X and Y to her from Mr.

V., she has failed to identify any palpable and overriding errors that are at once plainly seen and determinative of the outcome. [ 25 ] With respect to her contention that the trial judge could not deprive her of some of the attributes of parental authority in the absence of a request to that effect from Mr. V., his decision in that respect has to be seen in the light of his duty to act in the children's interest in light of the criteria enunciated in

article 33 C.C.Q. , namely, their moral, intellectual, and physical needs, as well as their health, personality and family environment. Moreover, the trial judge did not formally deprive Ms. B. of parental authority, but limited its exercise in light of the emotional difficulties he found her to have. [ 26 ] It is easy to see the kind of conflictual situations that could arise if Ms. B. were permitted to interact, as she would wish, with school authorities and medical consultants given her perceptions as to the needs of X and Y that the trial judge rejected.

At the moment, this would be all the more so a difficult situation to manage given Mr. V.'s obligation to abstain from communicating with Ms. B. in the context of her unresolved criminal complaints against him. [ 27 ] Ms. B. further seeks an order that would provide for Mr. V. to defray the entirety of the travel expenses occasioned by the transfer of the children when she exercises the rights of access the trial judge granted to her. The judgment of the Superior Court did not specifically reject this request, but that is not surprising since Ms.

B.'s amended motion to obtain the custody of X and Y that was before the trial judge did not include a conclusion to that effect. Nevertheless, a judgment of Cullen, J. rendered on January 8, 2010 had ordered, on an interim basis, that Mr. V. advance $800 for Ms. B.'s own travel expenses in that respect, and acknowledged his undertaking to assume the cost of the travel of X and Y to see their mother. [ 28 ] The judgment of the Superior Court contemplates Ms.

B. seeing her children for five weeks during the summer, 10 days during the Christmas holiday period and the one week of the school spring break, plus any other mutually agreed upon time she would travel to see them in Town A upon at least two weeks notice. [ 29 ] There is an acknowledged disparity in the income of the parties, and it is improbable that situation will change in the immediate future. It is therefore appropriate that Mr. V. be formally ordered to satisfy the cost of bringing the two children to one of the places specified in the judgment where they are to be picked up by A. B., Ms.

B.'s father, and that he be ordered to pay the travel expenses thus incurred by Mr. B.. One would expect that the amount of Mr. B.'s travel expenses could be agreed upon between him and Mr. V.. Failing an agreement between them, however, which would be regrettable, Ms. B. would be entitled to present an appropriate motion to the Superior Court. [ 30 ] As far as the provision for costs of $25,000 that the trial judge refused to grant Ms. B. is concerned, this is a discretionary decision with which an appellate court will not interfere except for compelling reasons.

The justification put forward by the trial judge to the effect that Ms. B. had incurred unnecessary and exaggerated expenses in the prosecution of her claim is entirely reasonable. The mere fact that the parties have a significant disparity of income is not, standing alone, a basis to interfere with the manner by which the trial judge exercised his discretion. [ 31 ] The only other issue Ms.

B. raised in appeal that warrants consideration is the trial judge's order subjecting any future proceedings she might wish to bring relating to the custody of the children or their wellbeing to the prior approval of the coordinating judge of the Superior Court for the District of Longueuil. [ 32 ] Mr. V. did not solicit any such order before the trial judge, and the issue was never raised during the trial, whether during its evidentiary phase or during oral argument.

Article 54.1 C.C.P. gives trial judges the right to enter such an order for the reasons therein specified, on the condition, however, that the parties be given an opportunity to be heard. No such opportunity was afforded to Ms. B.. In such circumstances, the order in question, which is found at paragraphs [121] and [122] of the judgment of the Superior Court, must be struck. [10] [ 33 ] Should Mr. V. be of the view that the coordinating judge of the District of Longueuil should exercise the screening function that the trial judge gave to her, he is nevertheless free to present an appropriate motion to that effect based on

article 54.1 C.C.P. It would therefore be inappropriate for the Court to comment on the wisdom of the order that will be struck and that Mr. V. may seek to reinstate if he is so inclined. FOR THESE REASONS, THE COURT: [ 34 ] ALLOWS the appeal, without costs, for the sole purpose of: (

a) Striking paragraphs [121] and [122] of the judgment of the Superior Court, saving any recourse the respondent R. V. may assert pursuant to

article 54.1 C.C.P. ; (

b) Ordering the respondent R. V. to satisfy the travel costs of bringing X and Y to one of the places where they are to be picked up by A. B. for the purpose of the exercise of the access rights of the appellant C. B.; (

c) Ordering the respondent R. V. to satisfy the mutually agreed upon travel costs occasioned by A. B. that he incurs in traveling to one of the places where he picks up X and Y for the purpose of the exercise of the access rights of the appellant C. B.;

(

d) Authorizes C. B. to apply to the Superior Court to determine the travel expenses to be paid to A. B. failing an agreement between him and the respondent R. V. in paragraph (

c) above. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. Mtre Johanna Sarfati For the appellant Mtre Josée Tremblay RIVEST TREMBLAY TÉTREAULT For the respondent Date of hearing: June 2, 2011