2017 QCCA 599, 2017 QCCA 599

Droit de la famille — 17679 2017 QCCA 599 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-026228-163 (500-04-066869-158) PROCÈS-VERBAL D'AUDIENCE DATE : Le 7 avril 2017 CORAM : LES HONORABLES PAUL VÉZINA, J.C.A. ROBERT M. MAINVILLE, J.C.A. DENIS JACQUES, J.C.A. (AD HOC) APPELANTE AVOCATES MA... A... m e Miriam Grassby (Absente) Me LUCILIA MARIA DA SILVA SANTOS (Absente) (Grassby & Associé

s) INTIMÉ AVOCATES M... H... Me CAROLINE HARNOIS (Absente) Me Victoria Cohene (Absente) (Lavery, De Billy s.e.n.c.r.l.) En appel d'un jugement rendu le 17 juin 2016 par l'honorable Carol Cohen de la Cour supérieure, district de Montréal.

NATURE DE L'APPEL : Matière familiale - Mesures accessoires. Greffière d’audience : Elisabeth Lanctôt Salle : Pierre-Basile-Mignault AUDITION 9 h 30 Début de l’audition. Dossier du 6 avril 2017 continué à aujourd’hui. Les parties ont été dispensées d’être présentes. PAR LA COUR : Arrêt - voir page 3. Fin de l’audition.

Elisabeth Lanctôt Greffière d’audience PAR LA COUR : ARRÊT [ 1 ] The appellant is seeking the reformation of a judgment rendered orally on June 17, 2016 - for which the transcription and reasons were provided on July 15, 2016 - by the Superior Court, District of Montreal (the honourable Carol Cohen), granting joint custody of the minor child and ordering the respondent to pay $248.33 monthly in child support.

The judgment also provides that the sole custody of the child will be granted to the respondent should the appellant move from Town A. [ 2 ] The appellant asks the Court to set aside that judgment, allow her to move to Nova Scotia with the child, grant her sole custody of the child, order the respondent to pay child support in accordance with the Quebec Child Support Guidelines , and condemn the respondent to pay her legal costs both in first instance and in appeal. * * * * * [ 3 ] The appellant is from Cape Breton, Nova Scotia.

She lived in Nova Scotia until 1996, after which she attended university in New Brunswick and then Alberta. From 2000 to 2004, she moved back to Nova Scotia where she met the father of her eldest son, born in 2002. In 2006, she moved to Town B, Quebec, which she left in 2008 to return to Nova Scotia. [ 4 ] The appellant moved to Town A in July 2010 to live with the respondent, who works in this city as an engineer for a large company. A child was born of this union in April 2011.

After the birth of her second child, the appellant began a PhD program at A University in Town A after working in nutrition and as a personal trainer. The parties separated in September 2015. [ 5 ] In her initial motion before the Superior Court filed in late September 2015, the appellant sought to relocate with the child to Halifax, Nova Scotia.

However, on October 27, 2015, she amended her motion to indicate that she rather intended to relocate to Iqaluit in Nunavut to live with her new husband. [ 6 ] In October, 2015, the Honourable Gary Morrison of the Superior Court issued an interim judgment refusing the appellant’s request to relocate with the child to Iqaluit. Justice Morrison granted interim custody of the child to the appellant in Town A, while providing extensive access rights to the respondent. He also ordered child support to be paid by the respondent.

[ 7 ] At the hearing before the trial judge held in June, 2016, the appellant again amended her motion so as to seek to move with the child to Halifax, where she intends to pursue doctoral studies at [B University]. * * * * * [ 8 ] The trial judge dismissed the appellant’s motion to relocate to Halifax for the following reasons : [57] The Court is convinced that the Mother’s motion to relocate is ill-founded, taking into consideration the law and all of the evidence. [58] The Supreme Court in Gordon has set out criteria which must be applied by the Court, keeping in mind the best interests of the child.

Here, the best interests of the child militate in favour of his remaining in Town A, with extended access to both parents, and not in favour of a move with his Mother, to Nova Scotia or Iqaluit or anywhere else. [59] First, the child has always lived in Town A. He has had extensive access to both parents here and will continue to do so, provided the Mother remains in Town A as she has undertaken to do, as well as to his paternal grandmother and his aunt L., the Father’s sister, all of whom reside in Town A and have been very involved with the family.

Moreover, the Mother's mother S. visits Town A frequently, 2-3 times per year. [60] This is contrasted with the proposed move of the Mother with both children to Halifax, Nova Scotia, where one of her brothers lives full time but which will have the necessary effect of removing the Father from [the child]’s day-to-day life, contrary to the criteria set out at paragraphs 49 and 50 of Gordon, particularly the best interests of the child and the importance of maximizing contact with both parents. [61] It is true, as put forward by the Mother's attorney, that in [the child]’s earlier years, she may have been the “figure parentale de référence” for the child.

However, the evidence shows that this is no longer the case, especially in the 9 months since the separation, and it is important to underline that [the child] is now 5 years old and starting school and is no longer a baby attending daycare. [62] Moreover, the Mother has declared to the Court that if she is not granted permission to move to Nova Scotia, she will remain in Town A with [the child] and [his brother]. [63] This is important, and consistent with the fact that her plans to move to Nova Scotia seem tentative, at best. The Mother has no residence in Halifax.

She testified that she will reside “temporarily” with her brother, but no evidence was offered as to the nature of this temporary residence and how long she intends to reside there before finding a domicile of her own in that city. [64] Moreover, it is curious that [B], the Mother's new husband upon whom she states she will rely both financially and emotionally, was not called to testify at trial, even though he is here in Town A this week and attended [the child]’s "graduation" from pre- kindergarten.

The Court was therefore left with questions as to how long the Defendant will actually reside in Halifax, given that her residency with her brother in Halifax is “temporary” and given that her husband lives hundreds of miles away up north, in Iqaluit. [65] Once again, this is consistent with the evidence, the motions and the proceedings filed by the Mother, which indicate that she has changed her mind several times since the separation last September as to whether she will remain here, move to Nova Scotia, move to Iqaluit where her new husband lives and works, or move to Halifax, where her brother lives. [66] Furthermore, the Mother has only recently pursued her inquiries as to the transfer of her PhD studies from [A University] in Town A to [B University] in Halifax, producing exhibits which date from this week and last week, both with respect to her acceptance into a new program in Health at [B University] in Halifax, requiring several additional years of study, as well as with respect to financing of same … … [78] In sum, the Mother’s current plan to move to Halifax is tentative at best and in a developmental stage, and it presents little if any stability for [the child].

On the contrary, it is in [the child]’s best interests to remain in Town A, where he has always lived, either in the custody of his Father if the Mother does move to Nova Scotia or Iqaluit, or in a joint custody situation if she remains here. [79] The arguments and jurisprudence produced by the Father's attorney support this conclusion. [80] Me Harnois correctly argues that the Mother is confusing her own interests with the interests of the child.

Defendant testified frequently with respect to her wish to move herself and both boys “ back east”, even though [the child] was born here and has spent his entire life here.

She emphasizes her own career opportunities in Halifax, but presents almost no evidence with respect to [the child]’s living conditions in that city. [81] Moreover, she files evidence showing that she has investigated a school which is for francophone children, whose mother tongue is French and for whom parental support in that language will be essential (Exhibit D-9), whereas she offers as an argument for leaving Town A, the fact that she has little proficiency in the French language. [82] In a 2005 decision, the Court of Appeal refused a mother’s request to move to Mauritious with an 8 year old child and applied the criteria in Gordon, even though it was a first request for custody, as in the present case, and not an application to modify an existing custody order : 27.

Le deuxième moyen porte sur l’application de l’arrêt Gordon c. Goertz . [...] les principes énoncés par la Cour suprême peuvent trouver application, à tout le moins par analogie, lorsqu’un parent, qui a la garde d’un ou des enfants ou qui désire l’obtenir, choisit de

déménager dans un lieu fort éloigné de la résidence de l’autre parent. [...] 34. Le premier juge conclut donc que la raison invoquée par S... pour quitter le Québec et s'installer à l'Île Maurice fait fi des intérêts del’enfant. [83] As argued by the Father's attorney, Defendant’s priorities appear to be her career and doctorate, as well as her wish to return to herhome province, even though her parents will still be 4 hours away by car if she moves to Halifax. Moreover, she will not be any closer toher husband, who will not be moving with her to Halifax.

In any event, she appears to have placed the rights and interests of [the child] inmaintaining close relations with his Father relatively low on her list of priorities. The Mother never tried to maximize the access betweenthe Father and [the child] and there is no indication that she would prioritize such access if she received the authorization to move toNova Scotia from Town A. [84] The criteria from Gordon which are paramount here include those set out at paragraph 49(7)(c), namely maximizing contactbetween the child and both parents.

While the Mother reluctantly said that the Father was a good person, she could not even explain why,if she remains in Town A, she was opposed to a joint custody of 7 days to each parent, when the child in question is 5 years old andstarting school, as previously noted. [85] In sum, the Mother came to this hearing, which was fixed since November, without preparing an amended motion indicating thatshe was now moving to Nova Scotia.

Yet, she acted as though she already had received the authorization to make the move with both boys to Nova Scotia - cancelling the lease on her apartment as of June 30th, 2016, and making arrangements to be with the boys in NovaScotia as of this summer (she intends to stay with a friend here in Town A before she leaves for her brother’s in Halifax). She has been packing her boxes (her explanation for failing to produce her 2015 tax return before an order by the undersigned to do so on June 15th,2016) and only recently made overtures to [B University] with respect to her studies there, as noted above.

All of this has placed theFather and even the Court before a “fait accompli”, even though she testified that she would remain here if not authorized to move with[the child] to Halifax. [86] It should also be emphasized that she has not met the criteria set out at paragraph 49(7)(

e) of Gordon - her move is not designed to“meet the needs of the child” as there is no evidence that she will be able to gain her financial autonomy in Nova Scotia.

She has no clearfunding for her doctorate, nor a residence in Halifax, she has student debts of $75,000 and she has been less than forthcoming about herreal income, letting her lawyers make representations that she earned $13,000 per year or that she had no income at all (asking for aprovision for costs) when her tax return, ordered this week by the Court, showed that she actually earned more than $34,000 in 2015. [87] The Mother had to show a serious plan with respect to her move to Nova Scotia, which she has failed to do. This is not a seriousplan for a 39 year old mother of two children.

As noted above, she picked a school for children who have French as a mother longue, alanguage which she does not speak. Moreover, she could not indicate what kind of assistance she would receive in Halifax, and whowould be present to provide it. [88] On the contrary, there is evidence that the move to Halifax would be very disturbing for [the child].

While he will be attending adifferent school this fall, having finished pre-kindergarten at 5 years old (and having done very well, in a reverse integration program inwhich able children attend a school for the deaf - Exhibit P-9 is his report card for that school, showing his success), Town A is still theonly city he has known and he has important relationships here - with his father, his grandmother, his aunt and friends like [L]. … [97] In sum, the Court finds that the plan for the Mother to move to Halifax and to study at [B University] is recent (June 2016) andincomplete and would represent financial instability for her, especially given her debts.

More importantly, this move would negativelyimpact the developing relationship between [the child] and his father, a relationship which is close and which has been reinforced sincethe separation, especially since his move to the duplex he presently occupies. [98] The Court will therefore dismiss the Mother’s request for authorization to move to Halifax with [the child], and will put in placejoint custody on the basis of an exchange of 7/7 each Friday, for as long as the Mother remains in Town A, with sole custody to theFather should she leave to move to Nova Scotia, Iqaluit or anywhere else. [9] The appellant challenges these findings on various grounds, most notably alleging that the trial judge (

a) did not properly weightthe criteria of Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 and did not properly apply the judicial principles regardingthe best interest of the child, (

b) disregarded the evidence that she was the principal caregiver and the alleged history of abuse of theolder child by the respondent, (

c) did not give proper weight to the evidence as to her lack of capacity to support herself in Town A andthe importance of her autonomy in the pursuit of a PhD at [B University], and (

d) gave no importance to the planned move to NovaScotia previously contemplated by the parties. [10] These grounds of appeal require this Court to reconsider and to reweight the evidence so as to reach a contrary conclusion to thatof the trial judge. The proper approach to appellate review in cases such as this is rather the one set out in Van de Perre v.

Edwards, 2001SCC 60, [2001] 2 S.C.R. 1014, at paras. 11 to 15 : [11] In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that theappellate court remind itself of the narrow scope of appellate review. L'Heureux-Dubé J. stated in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, at paras. 10 and 12 : [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation ofthe particular facts of the case.

It is a difficult but important determination, which is critical to the lives of the parties and to their

children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts whensuch decisions are reviewed. ... There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. [Emphasis added [in original].] [12] Hickey involved the appellate review of support orders, but the principles related to appellate review discussed therein are equallyapplicable to orders concerning child custody. […] The narrow power of appellate review does not allow an appellate court to delve intoall custody cases in the name of the best interests of the child where there is no material error as decided in Hickey.

The Court of Appealis not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge. [...][Emphasis added in original.] [13] As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review itadvocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot beaccepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodialdisputes.

A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in childcustody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision. Second, an appellate courtmay only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts.Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of eachchild is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of the best interests of thechild and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [14] It is clear from this case that it is necessary for this Court to state explicitly that the scope of appellate review does not changebecause of the type of case on appeal. The Court of Appeal discussed, and the respondents relied heavily on, the decision of McLachlin J.(as she then was) in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27.

In that case, the Court found that the trial judge hadonly mentioned one factor to be considered in determining the best interests of the child. As noted by McLachlin J., there was no way ofknowing if the trial judge had considered the other applicable factors. Further, the Court noted that the trial judge had stated that he wasrelying heavily upon the findings of another judge.

As a result, McLachlin J. stated, at para. 52: "... one may equally infer that thenecessary fresh inquiry was not fully undertaken... [I]t seems clear that the trial judge failed to give sufficient weight to all relevantconsiderations ... and it is therefore appropriate for this Court to review the decision and, should it find the conclusion unsupported onthe evidence, vary the order accordingly". Rather than indicating that appellate review differs when a court must consider the bestinterests of the child, Gordon is consistent with the narrow scope of appellate review discussed later in Hickey, supra.

The case does notsuggest that appellate review is appropriate whenever a trial judge has failed to mention a relevant factor or to discuss a relevant factor indepth. [15] As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error. If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors.

In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore (1999),1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material errorif it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affectedhis conclusion.

Without this reasoned belief, the appellate court cannot reconsider the evidence. [Emphasis added except where noted otherwise.] [11] In this case, the trial judge did not fail to consider any of the pertinent factors nor has the appellant showed that the trial judgeforgot, ignored or misconceived the evidence in a way that affected her conclusions. [12] Rather, the trial judge fully considered the evidence to determine the best interest of the child. In light of the factors set out inGordon v.

Goertz and the evidence before her, the trial judge concluded that it was the appellant who was confusing her own interestswith those of the child in seeking to move to Halifax while alternative study programs and employment opportunities were available toher in Town A. The trial judge assessed all of the evidence and found that the best interest of the child was to remain in Town A in a jointcustody arrangement. [13] The appellant obviously disagrees with the analysis of the evidence carried out by the trial judge and with the conclusions shereached based on this evidence.

However, disagreeing with the trial judge is not a ground for appeal. The appellant must ratherdemonstrate a material error. If the appellant submits that the trial judge ignored or misdirected herself with respect to the evidence,appellate intervention is only possible if this omission or misdirection gives rise to the reasoned belief that it affected the trial judge’sconclusions. The appellant fails in this task. [14] Contrary to what the appellant submits, the trial judge did not disregard the evidence that she was the principal caregiver of thechild.

The judge considered that evidence and concluded that the caregiving role of the appellant had changed since the child was now 5years old and starting school and no longer a baby attending daycare. [15] As for the alleged history of abuse of the appellant’s older child, though this was not specifically analysed in detail by the trialjudge, she nevertheless noted at par. 16 of her reasons that she “had heard or read no credible evidence with respect to any difficulties or

abuse between the parties”. In any event, the evidence of such abuse was tenuous and related to a single event were the respondent carried the child to his room after he had misbehaved. Furthermore, there was no evidence showing that the respondent’s past or present relationship with that older child would detrimentally affect his on-going and future relationship with his own child. On the contrary, the appellant readily recognizes that the respondent is a good father.

The allegation was therefore not material to the issue which was before the trial judge, namely the custody of the younger child. [ 16 ] Nor did the trial judge fail to consider the appellant’s alleged incapacity to support herself in Town A and the importance of her autonomy to pursue PhD studies at [B University]. The record before the trial judge showed that the appellant had earned $34,000 in 2015 while residing in Town A and that she had been pursuing PhD studies at A University.

The appellant’s demonstrated earning capacity in Town A as well her pursuit of academic learning in this city was contrasted with the tenuous evidence as to her employment prospects in Halifax and as to how she would be financing her studies and her living expenses in a new program at [B University]. [ 17 ] The appellant also submits that the trial judge did not consider her alleged joint project with the respondent to move to Nova Scotia.

Contrary to the appellant’s claims, the trial judge did refer to the appellant’s allegations with respect to a “joint venture” with the respondent to move to Nova Scotia (at par. 29 of her reasons). However, the evidence before the trial judge was that the respondent had no present intention of moving to Nova Scotia as he was employed in Town A as an engineer for a large corporation.

In light of this, it was not necessary for the trial judge to deal further with this matter in her reasons. [ 18 ] At the hearing of this appeal, counsel for the appellant raised a new argument which was not put forward in her notice of appeal nor in her appeal memorandum. Referring to the reasons of Justice Thibault in L.P. v. P.R. , 2009 QCCA 1068 , she now submits that it was improper for the trial judge to have considered the testimony she herself, under no compulsion, voluntarily submitted indicating that she would remain in Town A with the child should custody not be granted to her if she moved to Halifax.

The proper approach to such testimony was set out as follows by the Justice Thibault in V.J. v. F.H. , [2003] J.Q. No. 671 (C.A.) (QL) and reiterated by her in L.P. v. P.R. : [TRANSLATION] [23] … I should point out that the appellant had told the judge that she would stay in Quebec if she was refused permission to bring M. to France... [24] In my view, the trial judge should have ignored this fact, which had no relevance to the dispute, at least at the stage where he took it into account. I shall explain.

When the trial judge considers whether it was in the best interests of the child to move, he or she must ignore the reason why the parent is moving if it has no connection to the parent’s capacity to provide for the child’s needs.

If, for a legitimate reason, the trial judge had to conclude that it was in the child’s best interest to stay in Quebec, for example because he is so settled in his environment that it would be too disruptive, the judge may take into account the fact that the custodial parent has promised to stay in Quebec so as not to change custody, something that would have been necessary if the custodial parent had insisted on moving. [Emphasis added] [ 19 ] The trial judge proceeded in this fashion.

She found that the reason why the appellant was moving did have a direct connection to her capacity to provide for the child’s needs. She found that the appellant had presented no serious plan as to how she would be financially sustaining herself and the child if she moved to Halifax, that this plan was “tentative at best and in a developmental stage, and it presents little if any stability for [the child]”, was “not designed to meet the needs of the child” and “[o]n the contrary, there is evidence that the move to Halifax would be very disturbing for [the child]” (par. 78, 86 and 88 of her reasons).

She found that it was in the child’s best interest to remain in Town A, whether or not the appellant moved to Halifax .

The trial judge further found that the appellant had “not demonstrated to the satisfaction of the Court that it is impossible for her to complete her doctorate, even in her new area of interest, somewhere else than [B University], for instance here in Town A…” (par. 91 of her reasons). [ 20 ] Moreover, counsel has failed to convince the Court that the decision of the trial judge would had been different whether or not the appellant had stated that she would remain in Town A in the advent of an adverse ruling. [ 21 ] We recognize that a parent has the right to pursue his or her own path in life and this, on occasion, may involve moving away from the other parent.

In keeping with Gordon v. Goertz , and the decision of this Court in L.P. v. J.R . cited above, this sometimes means that a move is justified even though the other parent's custodial or access rights may be affected. However, this does not provide the moving parent with an unfettered right to custody of the children.

In this case, the trial judge concluded that the mother's planned move was not, on balance, in the child's interest, and we find no material error in the trial judge’s reasons which would justify appellate intervention. [ 22 ] In conclusion, the appellant has failed to demonstrate that the trial judge did not properly consider the evidence before her, did not properly weight the criteria of Gordon v. Goertz , or did not properly apply the judicial principles regarding the best interest of the child in this case. FOR THESE REASONS, THE COURT : [ 23 ] DISMISSES the appeal, without legal costs.

PAUL VÉZINA, J.C.A. ROBERT M. MAINVILLE, J.C.A. DENIS JACQUES, J.C.A. (AD HOC)