2022 QCCA 527, 2022 QCCA 527

Droit de la famille — 22606 2022 QCCA 527 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029267-200 (500-12-334022-179) DATE: April 1, 2022 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. GUY COURNOYER, J.A. FRÉDÉRIC BACHAND, J.A. A. N. APPELLANT – Defendant v. S. E. RESPONDENT – Plaintiff JUDGMENT [ 1 ] This is an appeal from a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Kear-Jodoin), [1] dismissing an application in which the appellant primarily sought an order varying a 2017 judgment granting custody of the parties’ children to the respondent.

The background of the case is well summarized in the impugned judgment. [2] [ 2 ] The appellant contends that the judge erred in finding, firstly, that there was no material change of circumstances justifying a re- examination of the children’s situation and, secondly, that it was not in the children’s best interests to establish shared custody. He also claims that the judge should have recognized his right to be consulted in relation to — and to approve — any future orthodontic treatment for the children.

He adds that the judge erred in failing to set the location of the exchanges of the children. * * * [ 3 ] Regarding the issue of custody, we begin by recalling that the applicable standard of appellate review is particularly stringent.

Relying on the Supreme Court’s decision in Van den Perre , [3] the Court recently explained the key reasons underlying its highly deferential approach: trial judges are generally better placed to make discretionary decisions regarding the best interests of a child; parties ought to be deterred from pursuing litigation motivated by a mere hope that different judges will see the case differently than did the trial judge; it is important that the children whose custody is at issue have certainty and closure; and there is a need to defer to trial judges’ findings of fact and discretion-based determinations related to the children’s best interests. [4] The Court also stressed that it cannot set aside a judgment of the Superior Court merely because it considers that factors relevant to the assessment of a child’s best interests ought to have been weighed differently: [5] [L]a cour de révision ne sera pas justifiée d’intervenir au seul motif qu’elle aurait rendu une décision différente ou soupesé différemment les facteurs.

En outre, le juge du procès n’est pas tenu d’expliquer par le menu chaque élément de preuve et il peut privilégier un facteur plutôt qu’un autre, cela ne pouvant justifier une nouvelle appréciation de la preuve par la cour de révision. [ 4 ] To succeed on his first three grounds of appeal — which all relate to the issue of custody —, the appellant must overcome the heavy burden resulting from that highly deferential appellate standard and demonstrate that the judge made reviewable errors both when she ruled that there was no significant change of circumstances since the 2017 judgment, and when she found that the status quo would best serve the children’s interests. [ 5 ] In our view, the appellant fails to do so.

Even assuming that the judge erred on the issue of changed circumstances, it is clear that she made no reviewable error when analyzing the issue of the children’s best interests. Her key findings — to the effect that communications between the parties have not improved significantly, that the appellant often complains about the respondent’s conduct and ability to care for the children, that both children need stability and that the appellant has insufficient insight into his possible contribution to the children’s difficulties — have not been shown to be tainted by one or more palpable and overriding errors.

Furthermore, she made no reviewable error when deciding not to follow the psychosocial assessment’s recommendation to establish shared custody: not only was she not bound by that assessment, [6] but the appellant did not establish that her finding to the effect that the social worker had not been provided with enough information to fully understand the dynamics between the parties was somehow flawed. [ 6 ] In sum, the Court will not intervene on the issue of custody. No modification will be made to the 2017 judgment in this respect.

* * * [ 7 ] Another ground of appeal concerns the children’s orthodontic treatments. The issue arose at trial because the respondent had sought an order directing the appellant to contribute to the costs related to those treatments. [ 8 ] Although the judge stated that “it appears evident that both children will require orthodontic work in the future”, [7] she found that there was no immediate need to commence treatments.

She thus made an order reserving the respondent’s right to claim from the appellant “his contribution towards the payment of children’s required orthodontic care as and when such care becomes necessary”. [8] [ 9 ] The appellant states in his memorandum that he does not object to orthodontic treatments if and when they become necessary. However, he contends that the judge erred in not recognizing his right to be consulted in relation to — and to approve — such treatments. [ 10 ] From a substantive standpoint, the premises of the appellant’s position are sound in law.

Decisions relating to orthodontic and other medical treatments do not amount to routine decisions that can be made by the custodial parent alone; they rather concern important matters over which both parents — custodial and non-custodial alike — exercise parental authority. [9] Moreover, the parties’ agreement on corollary relief, which was homologated in the 2017 judgement, specifically states that they are to consult one another and make joint decisions in relation to a number of matters relating to the children, including health care and medical treatments. [ 11 ] That said, nothing in the impugned judgment limits the appellant’s right to exercise parental authority, including in regards to future orthodontic treatments.

Therefore, we see no reason to intervene. The parties are nevertheless encouraged to collaborate and to make good faith efforts in the future, so as to exercise their parental authority in the manner that will best serve the children’s interests. * * * [ 12 ] The appellant’s last ground of appeal relates to the judge’s alleged error in not setting the location of the exchanges of the children. [ 13 ] The 2017 judgment granted him access rights every other weekend, beginning Friday at 6:00 p.m.

This meant that he was to pick the children up at the respondent’s residence, but that arrangement turned out to be problematic because of the parties’ ongoing conflict and its impact on the children. Consequently, the parties later agreed — on an interim basis — that the appellant would pick up the children after school or daycare.

Moreover, the psychosocial assessment emphasized the importance of ensuring that exchanges occur in a neutral environment. [ 14 ] During the trial, the respondent requested that the children’s school be set as the primary location of the exchanges and she testified that the modification to which the parties had agreed on an interim basis had been beneficial to the children.

As for the appellant, he agreed that the children’s school ought to be the location of the exchanges, at least as a general rule, and he also asked the Superior Court to make an order on this matter. [ 15 ] We agree with the appellant that the 2017 judgment ought to be modified to reflect the parties’ agreement on this issue.

FOR THESE REASONS, THE COURT: [ 16 ] ALLOWS the appeal in part; [ 17 ] REPLACES paragraph [60] of the judgment appealed from with the following: [60] ALLOWS Father’s Application to Modify Custody in part and VARIES Father’s access rights so that, during the school year, his access periods will begin at 4:00 p.m. at the children’s school; [ 18 ] THE WHOLE without legal costs given the nature of the dispute. FRANÇOIS DOYON, J.A. GUY COURNOYER, J.A. FRÉDÉRIC BACHAND, J.A. Mr. A. N. UNREPRESENTED Appellant Mtre Florimond Épée PROULX & LAFRENIÈRE (SJC) For the Respondent Date of hearing: March 31, 2021