2011 QCCA 90, 2011 QCCA 90

Unofficial English Translation Droit de la famille — 1144 2011 QCCA 90 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-09-020817-102 (500-04-051593-094) DATE: January 19, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON J.A. PAUL VÉZINA J.A. LORNE GIROUX J.A. A. E. APPELLANT - Plaintiff v. M. D.

RESPONDENT - Defendant JUDGMENT [ 1 ] The appeal is from a judgment rendered on June 2, 2010, in Superior Court, Family Division, District of Montreal (the Honourable Diane Marcelin). [1] [ 2 ] After a hearing of two and a half days, the trial judge awarded the respondent custody of the parties’ minor child, now two and a half years old, gave the appellant access rights once a week, on Saturdays, from 9:30 a.m. to 5:30 p.m., and ordered the appellant to pay monthly child support of $315 to the respondent, beginning December 1, 2009.

This support will increase to $466.67 per month when the child attends daycare regularly to take into account the net daycare costs.

The judge also allowed in part the appellant's application to change the child's name by adding to the child's name the appellant's family name as well as a first name chosen by the appellant without, however, removing the other first name already given to the child by the respondent. [ 3 ] The appellant contests each of these conclusions of the trial judgment. [ 4 ] With respect to custody, the judge first dismissed the appellant’s allegations disparaging the respondent’s moral character and lack of parenting skills.

Noting that she had rarely seen a case with such vicious attacks levied against a party, the judge concluded from the contradictory evidence that there was no doubt about the appellant's violent episodes, that she believed the respondent when she testified that she was the child's primary caregiver, and that the appellant's parenting abilities were limited. [ 5 ] The judge made it a point to state in her judgment the facts on which she based her decision to grant custody to the respondent and to give limited access rights to the appellant.

She mentioned the arguments put forward by the appellant and explained why she did not agree with them. [2] She also stated the respondent's position and why she supported it, [3] before giving detailed reasons for her conclusions. [4] [ 6 ] The appellant argues that the judge erred in her assessment of the evidence and in the findings on which she based her decision to grant custody of the child to the respondent.

Unfortunately, in appeal, he provided no transcript of the evidence adduced at the hearing and produced only 11 pages of excerpts from the transcript of a pre-hearing examination after the filing of the plea which was at least 127 pages long. [ 7 ] It is accepted that in child custody cases, an appellate court must show great deference because these decisions are intrinsically discretionary and based on a case-by-case analysis of the child's situation.

An appellate court should intervene only if the appellant has demonstrated a palpable and overriding error. [5] Without the transcript, the Court cannot verify whether the judge who heard the witnesses for two and a half days committed such an error. Consequently, on this issue, the Court must presume that the judgment was correct. [6] [ 8 ] The appellant also argues that the trial judge could not give him less access than that which he was granted by the safeguard order issued on March 4, 2010, i.e. three afternoons per week from 1 p.m. to 5 p.m.

[ 9 ] It is true that the judge’s ruling on access rights is at first glance more restrictive than the last safeguard order of March 4, 2010. However, the trial judge had the benefit of all the evidence, whereas the judge who issued the safeguard order only heard the submissions of counsel for less than 40 minutes. In addition, the trial judge mentioned this safeguard order and clearly stated her reasons for limiting the appellant's access rights: [ translation ] [66] Until Mr.

E. demonstrates his parenting abilities and shows that he is serious about ensuring the child's well-being, unlike what he is doing now, taking revenge against the child’s mother, I believe it is extremely dangerous for the child's physical health and especially his psychological health to entrust such a young child for extended periods to a person with so many problems. [67] Before considering longer periods of access, Mr. E. would have to take the necessary steps to make peace with himself and then with Ms. D. [68] For now, Mr.

E.’s actions militate against extended access. … [ 10 ] The appellant has shown no palpable or overriding error that alone would justify the Court's intervention. [ 11 ] As far as the support order is concerned, considering its factual and discretionary components, the Supreme Court calls for the same reserve as that which applies to custody orders. [7] The trial judge noted that the appellant declared annual income of $12,000, but she also noted that he owns with his mother, with whom he lives without seeming to have a regular job, three properties, two of which generate income. [8] In accordance with

article 825.12 C.C.P., she added to his declared income a 5 per cent return on his net assets. [ 12 ] To address this part of the judgment, the appellant who, as mentioned, did not provide a transcript of the evidence adduced, relies exclusively on an excerpt from the land register to show that he is not co-owner of one of the three properties. According to the appellant, this excerpt shows that the property is owned exclusively by his mother.

However, he does not explain why, according to the same excerpt, that he is co-debtor with his mother on a mortgage on the property. [ 13 ] Lastly, there is the question of the child's name. With the mother's consent, the judge granted the appellant's request that his family name as well as the given name X be added to the child's name. However, she denied his request to remove the given name of the respondent’s father and replace it with X: [TRANSLATION] [73] There remains the question of the request to change the child's name. Mr. E. wants the child from now on to be called X Y D. E. [74] Ms.

D. agrees to the child having the family name E., but without a hyphen between D. and E. She has no objection to the child also having the given name X, but does not want to change his other given names. [75] Mr. E. acknowledges as an established fact that the child identifies himself as Y. But he would like to remove the given name of the respondent’s father and replace it with his grandfather’s name X. He does not want the child to have more than two given names and wants to choose one according to

article 52 C.C.Q., which states that if the parties do not agree on the choice of the given name, the registrar assigns to the child two given names chosen by his father and his mother, respectively. [76] It should be noted, however, that the child already has two given names chosen by his mother when Mr. E. was unsure about his paternity. It was only after a DNA test clearly established Mr. E. as the father that he really showed interest in the child. Did she act incorrectly as Mr. E. claims? The Court does not believe that Ms. D. acted with malice. One has to consider the context that existed at the time of the birth and the subsequent months.

Article 53 C.C.Q. allowed her to act as she did. [77] However, taking into account Mr. E.’s arguments concerning the cultural customs of the Italian community, the given name X will become the child’s second given name, and the child will now be called Y X D. E. [ 14 ] As already mentioned, the appellant is unable to call into question the factual determinations on which the trial judge based this decision.

In addition, he did not show why giving the child more than two given names would be forbidden, considering his admission that the child identifies himself by his first given name Y. [ 15 ] FOR THESE REASONS, THE COURT: [ 16 ] DISMISSES the appeal, without costs. ANDRÉ ROCHON J.A. PAUL VÉZINA J.A. LORNE GIROUX J.A.

Mtre Ilan GabizonDJB AvocatsFor the appellant Mtre José Jr Da CostaTurgeon & AssociésFor the respondent Hearing date: January 13, 2011 [1] 2010 QCCS 2527. [2] Ibid. at paras. 43-46. [3] Ibid. at paras. 47- 51 and 64. [4] Ibid. at paras. 53 to 69. [5] Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at 1024-1025, 2001 SCC 60; Droit de la famille-07700, 2007 QCCA 465, B.E.2007BE-424 at para 6. [6] Pateras v. M.B., (QC CA), [1986] R.D.J. 441 (C.A.), at 443-444. [7] Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 at 525-526. [8] Trial judgment at paras 3, 71 and 72.