2022 QCCA 1218, 2022 QCCA 1218

Unofficial English translation of the judgment of the Court Droit de la famille — 221551 2022 QCCA 1218 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029847-217 (750-04-008440-176) DATE: September 8, 2022 CORAM: THE HONOURABLE STÉPHANE SANSFAÇON, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A. K. B. APPELLANT – Defendant v. D. S.

RESPONDENT – Plaintiff JUDGMENT WARNING : Prohibition on disclosure or circulation: The Code of Civil Procedure (“CCP”) prohibits the disclosure or circulation of any information allowing the identification of a party or a child whose interests are at stake in a family proceeding, unless authorized by the court (articles 15 and 16 CCP). [ 1 ] The appellant appeals from a judgment rendered on November 23, 2021, whereby the Superior Court, district of Saint-Hyacinthe (the Honourable Louis-Paul Cullen), maintained the status quo regarding the custody of the parties' child until the appellant relocated and subsequently entrusted custody to the respondent with expanded access rights for the appellant, and declared that the parties jointly exercise parental authority with regard to their child, thus rejecting the appellant’s request for authorization to consent alone to the psychological treatment of the child if the respondent objected to it. * * * [ 2 ] It is appropriate to review certain facts in order to fully understand the context of this case. [ 3 ] The parties are the parents of X, a 7-year-old boy, born in ..., 2015.

After having lived in a de facto union, they separated two years after his birth and have since resided close to each other in region A. Between the time of their separation and the homologation of a custody-sharing agreement in June 2019, the appellant assumed sole custody and the respondent had access rights which were gradually expanded. [ 4 ] According to this agreement, custody of the child is shared in the proportions of 61% for the appellant and 39% for the respondent. [1] The child is developing well and attends a school near the parties’ respective homes.

The judge noted, however, that the boy is experiencing a significant conflict of loyalty fueled by persistent parental tensions. [ 5 ] The parenting ability of each of the parties has not been called into question. [ 6 ] The appellant works for the SAAQ in City B and has fixed hours. In November 2021, she met her new spouse, who lives in City A. She introduced him to X in December of that year and, the following April, told the respondent of her intention to relocate to City A with the child.

She is in fact considering purchasing half of the duplex that her spouse owns and being transferred to a SAAQ office in the region where she would have career advancement opportunities. She applied to the court to obtain authorization to relocate with the child and asked that the custody arrangements with the respondent be modified, without, however, specifying the terms.

Only at the hearing did she offer the respondent access every other weekend during the school year and two FaceTime calls per week. [ 7 ] The respondent began a new romantic relationship in 2017 with a woman who has a daughter a little younger than X and of whom she is the only parent. They have been living together since 2020. Being an airplane pilot, the respondent has a work

schedule that can accommodate his son’s schedule, especially if he works on weekends. Given the appellant's plan to relocate, which he is opposed to, he requested that he be given custody of X and proposed that the appellant be given access rights four weekends out of five during the school year and every other week during the summer. ***

[ 8 ] After a long review of the pleadings and the evidence, the judge first determined that the appellant's plan to relocate more than an hour away from the father's home constituted a significant and unforeseen change in the life of the child since the custody arrangements could not be maintained as they were and would necessarily have to be varied. [ 9 ] With this in mind, the judge assessed the best arrangements for custody and access during the school year based on the interest of the child, considering the appellant’s planned living environment and the respondent’s.

He was of the opinion that the appellant's life project with her new spouse and his children, which was undertaken quickly, five months after meeting him, was mainly aimed at improving her personal situation, but remained at planning stage. [ 10 ] He also found that the career advancement mentioned by the appellant was highly hypothetical.

In the circumstances, those changes had significant consequences for X, whereas he could avoid the upheavals in the respondent's living environment and maintain his ties with his father, his father's spouse and her daughter, with whom he had a sibling relationship. [ 11 ] In this context, with two parents able to assume their parental obligations, the judge's assessment was based primarily on the child's stability and the parties' openness to ensuring access of the other parent. [2] With no hesitation, the judge determined that the respondent was more open to ensuring X's contact with the appellant, since he proposed expanded access and an unlimited number of FaceTime calls, whereas the appellant, in addition to refusing all but written communication with the respondent, first proposed no alternative custody time arrangements in her proceedings, then at the hearing proposed one weekend out of two for the respondent during the school year and a limit of two FaceTime calls per week. [ 12 ] The judge did not fail to point out that the appellant had repeatedly acted in such a way as to make access and communication between the respondent and his son difficult, whether by FaceTime or during the exercise of custody time.

The respondent even had to call in the police to exercise his rights with his child. [ 13 ] Lastly, the judge's decision was also motivated by the conflict of loyalty in which the child found himself, as he tried to please both parents.

The judge wrote: [TRANSLATION] [175] The child is thus experiencing a conflict of loyalty fuelled by a persistent parental conflict, which the mother plays up to the child by refusing to speak with the father. [176] In this undeniably unhealthy environment, the child sides with the mother, whom he sees as weak vis-à-vis the father and for whom he takes responsibility–at the age of 6 years – to defend her against an imaginary danger from the father that she has fostered. [3] [References omitted] [ 14 ] According to the judge, reducing the respondent's custody time even more and uprooting the child from his current environment could be polarizing and further aggravate the child's unhealthy loyalty conflict, to his detriment.

He therefore entrusted custody of X to the respondent as of the appellant's relocation and granted her expanded access rights. * * * [ 15 ] The appellant maintains that the judgment [TRANSLATION] "is riddled with errors of law and palpable and overriding errors in the assessment of the facts", justifying the Court's intervention to allow the child's relocation.

She raises several arguments to convince the Court that her new situation is in the child's best interests and that entrusting custody of the child to the respondent would be disorienting for X. [ 16 ] More specifically, she argues that the judge committed a decisive error of law in considering the reasons for her relocation, whereas the Supreme Court in Gordon v. Goertz [4] states that the reason for moving should be considered only in the exceptional case where it is relevant to the parent’s ability to meet the needs of the child.

Lastly, she claims that the judge also erred in denying her request for authorization to consent alone to X's psychological treatment. [ 17 ] The respondent replies that the judgment is free of palpable and overriding errors and that the judge correctly analyzed the facts before him. He points out that, since the amendments to the Divorce Act , the reasons for the relocation can be considered as part of the analysis of the facts in order to decide on new parenting arrangements following a relocation.

Although the parties in this case are not married, this new principle must nevertheless be applied to children of de facto unions, so as not to create two categories of children whose interests would in such a case depend on the matrimonial choices of their parents. [ 18 ] The main issue can be worded as follows: Did the judge err in awarding custody of the child to the respondent, and in particular in considering the reasons for the appellant's relocation in his analysis? * * * ANALYSIS [ 19 ] It is a well-established principle, recently reiterated by the Supreme Court, that appellate intervention in decisions on parenting time or child custody is exceptional and justified only in the case of “a material error, a serious misapprehension of the evidence, or an error in law”. [5] In other words, appellate courts must show great deference to trial judges. [ 20 ] This narrow scope for intervention is easily explained by the fact that the principle of the child's interest transcends all custody decisions and must be analyzed by the trial judge in light of the intrinsically singular nature of each case.

The judge therefore enjoys wide discretionary powers. [6] As the Supreme Court observed in this regard:

[53] The best interests of the child is the guiding principle in most custody matters, as it is under s. 2(2) of the Child Protection Act.To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate theindividual factors in slightly different ways. It is a highly contextual and fact driven exercise that involves a high level of judicialdiscretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process.

Those factors include“not only physical and economic well-being, but also emotional, psychological, intellectual and moral well-being” (Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, at para. 120, per L’Heureux-Dubé J., dissenting, citing J. D. Payne, Payne on Divorce (3rded. 1993), at p. 279). … [55] … The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretionwith regard to the evidence before the court.

The evidence that lays the foundation for the factors must first itself undergo a discretionarydetermination by the judge, regarding its admissibility, credibility, reliability, and weight. Indeed, an assessment of a child’s bestinterests can be conceptualized as requiring layered exercises of judicial discretion, in which the judge at first instance is “in the bestposition to assess evidence pertaining to the best interests of the child” (P. (D.) v.

S. (C.), (SCC), [1993] 4 S.C.R. 141, atp. 192, per Cory and Iacobucci JJ.).[7] [21] The Court believes that the trial judge properly analyzed the evidence presented and that his judgment did not contain a materialor serious error in the assessment of the facts or an error of law justifying intervention. In particular, it was open to the judge to considerthe reasons for the appellant's relocation. His reasoning is focused first and foremost on the interest of the child and supported by thefactual elements submitted to him.

Here is why. [22] Although it does not apply to the facts of this case, the Divorce Act is nonetheless central to each party's argument regarding thefactors to be considered in awarding custody of the child in light of the proposed relocation. [23] The Divorce Act applies to married couples across Canada. It was underwent several amendments in 2021[8] and requires courtsto give priority to the interest of the child and to pay particular attention to the child's physical, psychological, and emotional well-beingand safety.

Courts must now consider and weigh several factors related to the child's situation to enable it to properly identify anddetermine the child's best interests in any decision concerning the allocation of parenting or contact time.[9] [24] More specifically, Parliament has devised a specific framework applicable in the event of a relocation, as defined in section 2(1)of the Act: relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-makingresponsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’srelationship with: (

a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that childpending;[10] [25] Sections 16.9 and 16.91 to 16.95 of the Act set out a series of rules and new guidelines that contrast in some respects with the oldregime. Without listing them exhaustively, we note, for example, that the Act now requires notice to be sent by a parent wishing torelocate, that it imposes a burden of proof on either party depending on the circumstances, and that additional factors must be consideredto ensure that the child's interests are respected in such circumstances. [26] Sections 16.92(1) and (2) and 16.93 state:[11] 16.92

(1) In deciding whether to authorize arelocation of a child of the marriage, the courtshall, in order to determine what is in the bestinterests of the child, take into consideration, inaddition to the factors referred to in

section 16, 16.92

(1) Le tribunal appelé à décider s’ilautorise ou non un déménagement importantvisant un enfant à charge tient compte, pourdéterminer l’intérêt de celui-ci, en sus desfacteurs mentionnés à l’article 16, des facteurssuivants :(

a) the reasons for the relocation;

a) les raisons du déménagement;(

b) the impact of the relocation on the child;

b) l’incidence du déménagement sur l’enfant;(

c) the amount of time spent with the child byeach person who has parenting time or apending application for a parenting order andthe level of involvement in the child’s life ofeach of those persons;

c) le temps que passe avec l’enfant chaquepersonne ayant du temps parental ou dont lademande d’ordonnance parentale est en cours etle degré d’engagement dans la vie de l’enfant dechacune de ces personnes;(

d) whether the person who intends to relocatethe child complied with any applicable noticerequirement under

section 16.9, provincialfamily law legislation, an order, arbitral award,or agreement;

d) le fait que la personne qui entend procéder audéménagement a donné ou non l’avis exigé parl’article 16.9 ou par les lois provinciales enmatière familiale, une ordonnance, une décisionarbitrale ou une entente;(

e) the existence of an order, arbitral award, oragreement that specifies the geographic area inwhich the child is to reside;

e) l’existence d’une ordonnance, d’une décisionarbitrale ou d’une entente qui précise le secteurgéographique dans lequel l’enfant doit résider;

(

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

f) le caractère raisonnable du réaménagement du temps parental, des responsabilités décisionnelles ou des contacts, proposé par la personne qui entend procéder au déménagement, compte tenu notamment du nouveau lieu de résidence et des frais de déplacement; (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

g) le fait que les personnes ayant du temps parental ou des responsabilités décisionnelles à l’égard de l’enfant ou dont la demande d’ordonnance parentale est en cours ont respecté ou non les obligations qui leur incombent au

titre des lois en matière familiale, d’une ordonnance, d’une décision arbitrale ou d’une entente, et la mesure dans laquelle elles sont susceptibles de les respecter à l’avenir.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

(2) Il ne tient toutefois pas compte de la question de savoir si la personne qui entend déménager déménagerait sans l’enfant ou ne déménagerait pas si une ordonnance interdisait le déménagement important de l’enfant. 16.93

(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 16.93

(1) Lorsque les parties à l’instance respectent dans une large mesure une ordonnance, une décision arbitrale ou une entente prévoyant que les périodes au cours desquelles l’enfant à charge est confié à chacune des parties sont essentiellement équivalentes, il revient à la personne qui entend procéder au déménagement important de l’enfant de démontrer que le déménagement est dans l’intérêt de l’enfant. [ 27 ]

Section 16.92 of the Act incorporates the substance of some of the factors identified by the Supreme Court in Gordon v. Goertz to determine what is in the best interests of the child in the case of a relocation. As was the case before the legislative amendments, none of these factors is decisive in itself.

They should not be examined selectively, but rather as a whole, and they should guide the court in its assessment of whether or not the proposed relocation is in the child's best interests. [ 28 ] These factors, including the reasons for the relocation, the impact of the relocation on the child, the time the child spends with each parent, the degree of parental involvement in the child's life, and the reasonableness of the rearrangement of parenting time and decision-making responsibilities or of contact proposed by the person planning to relocate, are now considered. [ 29 ] Among the factors, Parliament now allows the trial judge to consider the reasons for the relocation if they are useful in assessing the situation, marking a break with previous case law inspired by Gordon v.

Goertz , which held that the reasons for the relocation were not to be considered unless they were related to the parent's ability to provide for the child’s needs. [ 30 ] Although Gordon v. Goertz , a decision rendered incidentally in divorce proceedings, remains relevant in the context of a dispute under the Civil Code of Québec , the principles it sets out must nevertheless be interpreted in light of the evolution of the concept of the child's interest. Indeed, these principles have been transposed to situations involving couples outside marriage, to ensure uniform application of standards.

Our Court has repeatedly applied these criteria to relocation situations in the case of a union outside marriage governed by the Civil Code . [12] [ 31 ] In the latter case, these factors are interpreted together with those of the Civil Code of Québec , in particular

article 33 , which requires that decisions concerning the child be made in light of his or her interests and which sets out a series of decisive factors to be considered, including the child’s moral, intellectual, emotional and physical needs. [13] As noted by the author Michel Tétrault, [ translation ] "[u]nder the Civil Code , authorization to move remains governed by case law, notably the principles set out by the Supreme Court in Gordon v.

Goertz ”. [14] [ 32 ] Next, although the Supreme Court specified that the reason for the custodial parent's relocation should be taken into account only in exceptional cases where it is related to the parent's ability to provide for the child’s needs, it must be recognized that this criterion had already evolved even before the recent legislative changes.

Indeed, this Court recognized that the reasons for a move could be considered if they were based on an unjustified or bad-faith motive intended to unduly restrict or deprive the other parent of his or her rights. [15] [ 33 ] The cardinal principle of the child's interest, both in the application of

article 33 CCQ and in the case law, must remain flexible and evolving. It is therefore necessary to adapt the reading and scope of Gordon to recent legislative changes, which are more in line with the best interests of the child as they should be understood and applied today. [ 34 ] The trial judge therefore did not err in law in his assessment of the factors and of the evidence by considering the reasons behind the appellant's decision to relocate to City A, insofar as they could contribute to the assessment of the child's best interests.

Moreover, these reasons will not necessarily be material or relevant in every case, but if they are, the trial judge must be able to take them into account. It should also be mentioned that, in her pleadings, the appellant makes much of the reasons for her relocation to City A. This first ground of appeal submitted by the appellant must therefore fail.

[ 35 ] The Court is also of the opinion that the judge did not commit a palpable and overriding error in his assessment of the evidence that led him to award custody to the respondent. [ 36 ] First, the judge correctly determined that the appellant's proposed relocation constituted a significant change, since it substantially altered the existing custody arrangements. [ 37 ] He then looked at the parties' overall situation, focusing on four main points: (1) the reasons for the relocation; (2) the child's living environment; (3) the parties' openness to access by the other parent; and (4) the child's conflict of loyalty.

From these factors, it is clear that the judge was always concerned with finding the best balance and promoting the child's interests. [ 38 ] First, on the reasons for the relocation and the assessment of the child's living environment, after an exhaustive review of the evidence, the judge ruled as follows: [TRANSLATION] [192] The mother's maternal qualities are not in question here. [193] Her quick plan to relocate, cohabit and change jobs, decided less than five months after meeting her current partner, was mainly aimed at improving her personal situation. [194] It does not take into account the destabilization it will cause for the child, to whom it will bring no direct benefit. [195] By the mother's admission, since the parties separated in 2017, she has experienced several destabilizing situations: a relocation to City C and then to City D in 2018, a depression diagnosis and prolonged cessation of work from summer 2018 to summer 2019, the end of a brief love affair, hospitalization for surgery in summer 2019 and, for less than one year now, a long-distance romantic relationship with her current partner, who broke up with the mother of his two older children not too long ago. [196] The mother wants to add to these multiple upheavals a relocation to a new city, a new life together with her partner, who has two children, a new job in another city, the child’s enrolment in a new school, and changes to the parenting schedule. [16] [ 39 ] In addition to the proposed living environment in City A, the judge also examined the parties' respective schedules and availability and concluded that the respondent could easily adapt his

schedule to the child's needs by working weekends. The appellant's schedule, on the other hand, is subject to a number of contingencies. With regard to work opportunities and career advancement in City A, the judge noted that the appellant referred to positions for which she could eventually apply, without having any certainty of obtaining them or even having a concrete job offer.

In this sense, it is clear that in the judge's mind, the appellant's plan to relocate seemed at the very least sudden, or at least not well thought-out. [ 40 ] The appellant criticizes the judge for not having found that the child had a good ability to adapt and that the impact of the proposed relocation would therefore be minor, as well as for failing to mention her parenting skills and her strong ties to the child. It is true that the judge said little about the appellant's qualities as a mother and her relationship with the child, although he did acknowledge her parenting skills.

The explanation may lie in the fact that the appellant herself made very little mention of this at trial. That said, this element is not decisive in itself, since no one questioned the appellant's qualities as a mother during the hearing. With respect, concerning the child's ability to adapt, the judge gave due consideration to various elements in his life, including the school he attends, where he is thriving, and his long-standing relationship with his father's spouse and his daughter, whom he considers his sister and with whom he lives.

Under the circumstances, he favours the stability of his father's environment. [ 41 ] We must of course be careful not to consider the inevitable upheavals caused by a relocation as an obstacle or even a bar to its realization. The courts have repeatedly reiterated that a parent's decision to live and work where he or she wishes must be respected in the absence of specific, well-identified circumstances.

The changes to a child’s life brought about by a relocation, including a change of living environment, school, friends and reduced contact with the other parent, should not de facto be perceived negatively or as detrimental to the child, since if that were the case, maintaining the status quo would almost inevitably be preferred. [17] From this point of view, the new living environment should not be compared with the prevailing situation, since in such circumstances, particularly if the status quo ante was working well, relocation will rarely be authorized. [ 42 ] In this respect, the judge made no error in setting aside the status quo ante , i.e. the arrangement that had prevailed until then between the parties regarding the exercise of custody.

Instead, he looked at who between the appellant and the respondent should be entrusted with custody of X, on the basis of their new reality: the appellant in City A and the respondent in City B. [ 43 ] In this case, the appellant's quick plans and the many uncertainties about her future life in City A clearly prompted the judge, in assessing the child's best interests, to grant custody to the respondent. But there is more. The judgment also suggests that the judge may have seen the planned relocation as (another) way for the appellant to reduce the child's contact with the respondent.

The judgment repeatedly refers to the communication difficulties created and encouraged by the appellant, her lack of real interest in the relationship between the respondent and her son, and the fact that in the past, she had repeatedly tried to restrict the respondent's access and exercise of it, both in person and via FaceTime. [ 44 ] The judgment under appeal also does not fail to emphasize that, in her pleadings, the appellant did not initially offer any access to the respondent as part of her plan to relocate, and that it was only during the hearing that she offered restricted access [ translation ] “specifying that she wants to maintain quality time with the child”. [18] Unlike the appellant, the respondent offered generous access and unlimited time on FaceTime. [ 45 ] It is clear that this lack of openness, even reluctance, to encouraging the respondent to exercise his access rights was taken into consideration by the judge, as was the conflict of loyalty in which the child found himself as a result of the appellant's behaviour.

In the case at bar, as the judge pointed out, the child's interest is certainly to maximize contact with both parents. This is an important factor that the judge considered, since it reveals the true parenting ability of the parties.

[ 46 ] Our Court has in fact written on this subject: [ translation ] [42] Parenting ability is often taken for granted, or at least easily satisfied in court. As long as parents generally take good care of their children, the bar seems to be met. Questionable behaviour by one parent towards the other is not always associated with parenting ability, a little as though parenting ability were monolithic, i.e. viewed solely in terms of the parent-child relationship.

However, in a custody dispute between parents, parenting ability must be considered more broadly, going beyond the parents' ability to adequately meet the child's primary needs and ensure his or her well-being. [43] A parent who is able to take care of his or her child on a day-to-day basis but at the same time behaves in a way that alienates the other parent, shows indifference or contempt towards the other parent in the presence of the child, or fails to facilitate contact between the child and the non-custodial parent is demonstrating poor parenting skills.

It seems to me that we cannot ignore the correlation between a parent's behaviour towards the other parent and his or her real ability to act in the child's best interests, that is, for his or her greatest benefit. [44] In short, parenting ability is not simply a matter of the father's or mother's ability to meet the child's primary needs, but is equally a function of how they interact in the child's best interests and their willingness to do so. If, from the outset of the analysis, we are to adopt a more linear

interpretation of parenting ability, in the sense of the ability to meet the child's primary needs, we must also and equally assess parenting abilities. The plural broadens the discussion. [19] [Emphasis added] [ 47 ] In the circumstances, the factors that the judge relied on to justify his decision to maintain the existing custody arrangements until the appellant’s relocation, whereupon she would award custody of X to the respondent and grant the appellant expanded access rights, are supported by the evidence.

It should also be noted that a custody judgment as in the case at bar is the result of a difficult and demanding exercise of discretion. The Court sees no reason to intervene. *** [ 48 ] The appellant's second ground of appeal is that the judge erred in refusing to allow her to consent alone to the child's psychological treatment in the event of the respondent's opposition. This argument must fail. The judge determined that the child is developing well and that nothing in the evidence supports such a request. This is a factual determination by the trial judge on which the Court cannot intervene.

FOR THESE REASONS, THE COURT : [ 49 ] DISMISSES the appeal without costs, given the nature of the case. STÉPHANE SANSFAÇON, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A. Mtre Érika Chagnon-Monarque PRINGLE & ASSOCIÉS For the appellant Mtre Brigitte Gauthier Mtre Frédéric Sabourin-Côté ALEPIN GAUTHIER AVOCATS For the respondent Date of hearing: June 16, 2022