2011 QCCA 1176, 2011 QCCA 1176

Unofficial English Translation Droit de la famille — 111725 2011 QCCA 1176 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021181-102 (540-12-014540-082) DATE: JUNE 20, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A MARIE-FRANCE BICH, J.A. JACQUES A. LÉGER, J.A. B. M. APPELLANT – defendant v. N. Z. RESPONDENT – Plaintiff JUDGMENT [ 1 ] THE COURT: On the appeal from a judgment of the Superior Court, District of Laval (the Honourable Mr. Justice Steve J.

Reimnitz), rendered on October 15, 2010, which granted custody of the children to the respondent as corollary relief to the divorce; [ 2 ] For the reasons of Dalphond, J.A., with which Bich and Léger, JJ.A. agree: [ 3 ] ALLOWS the appeal, without costs in light of the circumstances, to: (

i) substitute the first subparagraph of paragraph 166 of the Superior Court judgment with the following: • Two weekends out of three, from 5 p.m. on Friday to 7 p.m. on Sunday, during the school year (from September to June 23) and from 5 p.m. on Friday to 7 p.m. on Monday during the summer; (ii) add to paragraph 166 of the Superior Court judgment, a fourth subparagraph: • For two non consecutive weeks during the summer, between June 23 and the end of August, the father giving notice to the mother of the chosen dates by June 1 at the latest, these two weeks beginning or ending on one of the weekends during which he has access.

Moreover, the mother may then choose two non-consecutive weeks, which must begin or end during one of the weekends on which the children are with her according to the one-in-three weekends schedule; (iii) insert after paragraph 171, the following paragraph: [171.1] REMINDS the parties that both of them continue to be vested, jointly, with parental authority and that they must act accordingly. PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A. JACQUES A. LÉGER, J.A. Mtre Carole Tremblay Dufour, Mottet

For the appellant Mtre Judith Bizier For the respondent Date of hearing: June 9, 2011 REASONS OF DALPHOND, J.A. [ 4 ] The appellant appeals from a judgment rendered on October 15, 2010, by the Superior Court, District of Laval (the Honourable Mr. Justice Steve J. Reimnitz), which dismissed his application for shared custody. Alternatively, he argues that the trial judge failed to determine his access rights during the summer and the exercise of parental authority. CONTEXT [ 5 ] The parties married in June of 2004 after dating for about four years.

Two children were born of their union: a son, X, on ..., 2005, and a daughter, Y, on ..., 2007. The parties ended their relationship in August of 2008, and the respondent filed for divorce in the following days. Shortly thereafter, an interim order, on consent, gave custody of the children to the respondent. [ 6 ] The appellant works in construction and earned little declared income during the relationship. Not having steady work, he made major renovations to the previous family residence and built a new one, where the family lived as of May 2008.

As for the respondent, she left the workforce in 2007 after the birth of Y. When the parties stopped living together, the couple's assets were the following: a house, which was entirely paid off and valued at $225,000, an amount of $39,000 in the bank, RRSPs in the amount of $8,500, and a pension plan with the Commission de la Construction du Québec valued at $6,000.

All of this was acquired with rather modest declared income and, undoubtedly, with the grandparents' help. [ 7 ] The dispute centres on the sharing of parental responsibilities because the distribution of assets was quickly settled, the appellant having bought back the respondent's share in the family residence for $112,500, which allowed the respondent to purchase a condo. [ 8 ] It is noteworthy that throughout 2010 and even up until the hearing of the appeal, the parties devoted themselves entirely to their dispute, neither of them working.

This speaks to how deeply they have invested their time and emotions into the sharing of parental responsibilities. It is to be hoped that they may now move forward and live normal lives focused on steady work and on their children, family, and friends. It would be healthier for both parties and would allow them to be better parents. In fact, the respondent informed the Court that she is set to begin part-time work, from 10 a.m. to 2 p.m., Monday to Wednesday (barely 12 hours a week, for now).

As for the appellant, he has recently recovered his license with the Régie du bâtiment du Québec and may now be self-employed. IMPUGNED JUDGMENT [ 9 ] The trial lasted three days in December of 2009, and one day in June of 2010; the reasons given in the impugned judgment, rendered on October 15, 2010, were extensive. The judge summarized the evidence in detail, acknowledged the parental capacity of both parents, and noted that the expert hired jointly by the parties proposed shared custody in a 2008 report.

A second expert, however, later hired by the respondent, suggested that she should get custody of the children, while not excluding the possibility of shared custody for X when he began kindergarten and eventually for Y when she reached the same milestone. After analyzing the evidence, the judge gave custody to the respondent, while granting access rights to the appellant two weekends out of three, seven days around Christmas and New Year’s, and on Father's Day.

The judge concluded as follows: [translation] [152] Considering the case as it now stands and the reasons given herein above, the Court finds that both the interests of the children and the stability test favour maintaining the mother's exclusive custody of the two children. ANALYSIS I. Sharing of parental responsibilities : [ 10 ] As the Supreme Court of Canada states in Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 SCR 1014 at 1022-1025: 11 In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that the

appellate 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 theirchildren. 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 by Bastarache J.] 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. ... 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. [11] In other words, absent an error of law or a palpable and overriding error by the family judge, an appellate court must show greatdeference because the decisions in matters of sharing parental responsibilities are the result of a case-by-case consideration of thesituation of the children and their parents (assessment of the evidence) and of the determination of their best interests (section 16 DivorceAct, RSC (1985), c 3 (2nd suppl), and art 33 of the Civil Code of Québec) for and on behalf of their parents, who, notwithstanding theirlove for their children, are incapable for the time being of agreeing on the sharing.

Such a decision is inherently discretionary and thejudge is not bound by the suggestions or recommendations of experts, as stated in art 423(2) CCP, and may set them aside in a reasoneddecision, as per the case law: J.P. v. M.Pe., 2006 QCCA 1551; J.M.R. v. S.M., 2006 QCCA 140 , [2006] RDF 27 (CA); S.M. v.A.G., 2005 QCCA 529, JE 2005-1014; T.P.G. v.

D.M., (QC CA), [2004] RDF 272 (CA); Droit de la famille – 3456,[1999] RDF 652 (CA). [12] In the present case, counsel for the appellant argues that after having acknowledged the parental capacity of both parents, thejudge accepted that the respondent was the source of the communication issues and did not have a healthy attitude toward the appellant,compelling without hesitation her twin sister to testify, without much credibility however.

In such circumstances, counsel does notunderstand how the judge could set aside the shared custody sought by the appellant and recommended by the jointly hired expert. [13] A careful reading of the judgment clearly shows that giving primary custody to the respondent is the appropriate solution at themoment, in light of some of the appellant's shortcomings.

The nature of the shortcomings noted by the judge and whether they justify arefusal to grant shared custody are the two questions at the very heart of the first ground of appeal. [14] Despite the respondent's negative and belittling attitude, which she must correct immediately to ensure the best development ofthe children, the shortcomings noted by the judge are the following: the appellant's difficulty controlling his aggressive behaviour(impatient gestures, verbal altercations, spankings for the son, objects thrown or broken, and so on), his difficulty managing two childrenat once, his immaturity (sexual gestures in poor taste, inappropriate choice of video games, filming the handing over of the children), hislow incidence of contact with Y until the trial, his difficulty respecting the

schedule for returning the children, and the lack, to date, of alife plan for the children if they were to be given to him half the time. [15] In my opinion, these shortcomings justify the trial judge's decision and do not allow this Court to find that the judge erred bynot accepting the suggestions of the experts. In truth, counsel for the appellant has not shown how the trial judge's assessment of theevidence and of the best interests of the children was vitiated by a palpable and overriding error. Instead, she suggests that the evidencebe reassessed and that her client's proposition be accepted. This is not the role of the Court. [16] In

summary, what the judgment indicates is that the appellant is not yet mature enough to ensure, in the best interests of thechildren, successful shared custody. Nevertheless, if he does what he must to remedy his shortcomings, which attending parenting classeswould help him to understand, the situation could be revisited and modified. II. Access rights during the summer: [17] Counsel for the respondent acknowledges that the trial judge failed to determine the issue of summer vacation. The Court mustintervene.

[18] She proposes that the appellant receive two non-consecutive weeks and perhaps the Monday following his access weekendsduring the summer.

She states that her client also wishes to have two non-consecutive weeks, one of which could be taken during theconstruction holidays. [19] The Court must intervene. [20] In Droit de la famille – 091113, 2009 QCCA 925, [2009] RDF 273, I pointed out that case law now acknowledges that summeris a particularly propitious period for maximizing contacts between parents and their children because, for example, of the absence ofschool and extracurricular activities, as well as other pressures: [translation] 27 ... the fact remains that the summer time is more favourable for maximizing contact between a child and his or her parent: longerdays, ease of evening activities, a generally later bedtime, absence of homework and other schoolwork, great availability of summercamps and outdoor activities, and so on.

That is why there is a trend in recent case law to share the children's residence evenly betweenthe parents during the summer or to extend the length of the time the children reside with the non-custodial parent. ... . [21] In the present case, the solution proposed by the respondent appears adequate.

For the ten weeks of the summer of 2011, thechildren will be with their father for two non-consecutive, seven-day weeks, one of which will be taken during the construction holidays,and two out of three weekends from Friday night to Monday evening, which represents approximately twenty-six days during thesummer of 2011 (a little over one-third of the time). The appellant will have to inform the respondent of the dates of his two weeks,which will begin or end during one of his weekends, prior to June 1, except this year when he will notify the respondent by June 25.

Asfor the two weeks subsequently chosen by the respondent, who will notify the appellant within ten days of his own notice, they willbegin or end during one of her weekends according to the one-in-three weekends schedule. III. Parental Authority: [22] The parties seem to have forgotten that parental authority has remained joint at all times. It follows that they cannot make anyimportant decisions without consulting each other beforehand.

In Droit de la famille – 09746, 2009 QCCA 623, [2009] RJQ 945, Isummarized the current state of the law on this matter: [translation] [36] Under the Civil Code, parental authority, like legal guardianship, automatically belongs to both parents (art 192 and 598 CCQ).These are joint responsibilities, and neither parent has greater authority than the other or a veto, regardless of whether they are married orlive together (art 193 and 600 CCQ). [37] In a perfect world, this legal equality between the parents should be translated into the joint development of an educational planconceived with the best interests of their child in mind and by decisions made in accordance with such a plan. [38] The mere fact that a judgment gives custody of a child to one parent does not invest them with all the parental authority, or evenwith primary tutorship (art 195 and 605 CCQ).

Parental responsibilities continue to be joint (co-parenting) (D. (W.) v.

A. (G.), (QC CA), [2003] RJQ 1411 (CA)). [39] The theory of single-parent exercise of parental authority, which purports that the parent to whom custody is given is vested withall the parental authority over the child and may thus decide alone any question relative to the child, no longer has its place in Quebec(see, amongst others, the analyses of Albert Mayrand, "La garde conjointe, rééquilibrage de l'autorité parental", (1988) 67 R du B can.193 and Nicole Roy, "L'autorité parentale et l'obligation alimentaire des parents envers leur enfant: deux institutions proposant uneconception de l'intérêt de l'enfant et de la famille", 2001 R du B 51).

The theory has also been set aside in France, Belgium, the UnitedKingdom, and Australia. [40] The fact that the sharing of parental responsibilities results from a judgment rendered under the Divorce Act rather than the CivilCode changes nothing (D. (W.) v.

A. (G.), supra). [41] Obviously, the parent with whom the child actually resides will exercise various manifestations of this parental authority alone:for example, picking up the child from school, taking him or her to the movies, requiring that he or she wear a bicycle or ski helmet,setting mealtimes or bedtimes, and so on. [42] In practice, the responsibility of making decisions for routine questions follows the child. [43] In this regard, the situation is no different from one where a parent travels overseas and the children remain in the familyresidence with the other parent. [44] This does not mean that the parent that is not with the child is deprived of parental authority; legally, that parent retains it.

Thisstatus will allow such parents to go before the Superior Court, should they find that certain decisions by the other parent, even routineones, are compromising the safety, development, or health of the child, pursuant to the right of parents to supervise the maintenance andeducation of their children (art 605 CCQ). [45] As for more important decisions, such as medical treatments, choice of schools, trips abroad, registration in extracurricular

activities lasting several weeks or carrying certain significant risks, parents living together would naturally consult each other. [46] As previously indicated, when parents are separated and custody is given to one of them, the custodial parent is not suddenly vested with all the necessary authority to henceforth make these kinds of decisions alone. The other parent continues to exercise parental authority and, as such, has the right to participate in important decisions.

Absent consultation, non-custodial parents may dispute the merits of the decision, pursuant to their right to supervise the maintenance and education of their children (art 605 CCQ). [47] In my opinion, the underlying philosophy of the Civil Code provisions seem to be an encouragement to participation rather than an exclusion of the non-custodial parent, which could, in the long-term, lead to the parent’s indifference to the child and his or her development and, consequently, the child’s loss of a parental figure. [48] In the event of difficulties between the parents relating to the exercise of parental authority, the parent who deems that the disputed issue is so important to the best interests of the child that a third party is required to examine it may refer the matter to the Superior Court (art 604 CCQ).

The Court, after having fostered a conciliation between the parties, will decide and will always do so in the best interests of the child (art 33 and 604 CCQ). [ 23 ] Both parties have failed to respect these principles, and I would invite them to redress the situation going forward. [ 24 ] As for child support, the children's rights should be reserved. The appellant is urged to return to work immediately and the respondent to work a

schedule that is equal to the abilities she has demonstrated in the past. CONCLUSIONS [ 25 ] For these reasons, I would allow the appeal, without costs in light of the circumstances, to: (

i) substitute the first subparagraph of paragraph 166 of the Superior Court judgment with the following: • Two weekends out of three, from 5 p.m. on Friday to 7 p.m. on the Sunday, during the school year (from September to June 23) and from 5 p.m. on Friday to 7 p.m. on Monday during the summer; (ii) add to paragraph 166 of the Superior Court judgment, a fourth subparagraph: • For two, non consecutive, weeks during the summer, between June 23 and the end of August, the father giving notice to the mother of the chosen dates, by June 1 at the latest, these two weeks beginning or ending on one of the weekends during which he has access.

Moreover, the mother may then choose two non-consecutive weeks, which must begin or end during one of the weekends on which the children are with her according to the one in three weekends schedule; (iii) and insert after paragraph 171, the following paragraph: [171.1] REMINDS the parties that both of them continue to be vested, jointly, with parental authority and that they must act accordingly. PIERRE J. DALPHOND, J.A.