r. V. S., 2011 QCCA 2242

Droit de la famille — 113861 2011 QCCA 2242 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021792-114 (500-12-294524-081) DATE: DECEMBER 6, 2011 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES R. FOURNIER, J.A. V. S. APPELLANT – Defendant v. N. G. RESPONDENT – Plaintiff and X Y IMPLEADED PARTIES JUDGMENT [ 1 ] THE COURT: – On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice André Roy), rendered on May 30, 2011, that pronounced a judgment of divorce, ruled on child custody and support, and ratified a partial consent to corollary relief; [ 2 ] For the reasons of Forget J.A., with which Rochon and Fournier JJ.A. agree; [ 3 ] ALLOWS the appeal without costs for the purpose of substituting paragraphs 137 and 138 of the trial judgment with the following paragraphs: [ translation ] [137] DECLARES that the respondent, Ms. N. G. may choose, alone and without consulting the appellant, Mr. V.

S., the educational institution that X is to attend as of the current school year. [138] If Ms. G. enrols her son X in a boarding school, the Court ORDERS that the cost thereof be shared according to the parents’ respective incomes, i.e., 70% by the father and 30% by the mother as of the 2011-2012 school year. and adding the following sentence to paragraph 139: [139] … If Ms. G. chooses not to enrol X in boarding school, the amount of child support shall be revised according to the prescribed scale, taking the new facts into consideration. ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES R. FOURNIER, J.A.

Mtre Marta Elsa Solà For the appellant Mtre George Artinian For the respondent Mtre Isabel Brault For the impleaded party X Date of hearing: November 10, 2011 REASONS OF FORGET, J.A. [ 4 ] The divorce judgment granted custody of the children X, age 13 (... 1998), and Y, age 9 (... 2002) to the mother, Ms. N. G. [ 5 ] The judgment ordered that X [ translation ] “attend a boarding school”. The judgment granted the father, Mr. V.

S., the following access rights: every other week during summer vacation, every other weekend during the school year, and other days during the Christmas holidays and spring break. [ 6 ] Ms. G. is satisfied with this judgment, including the order regarding boarding school. [ 7 ] Mr. S. appeals, arguing that the judge erred in concluding that it was in X’s interest to attend boarding school. He also challenges the trial judge’s decision to award custody of the two children to Ms.

G. [ 8 ] X intervenes and, through his counsel, argues that the trial judge’s decision regarding boarding school (1) exceeds the jurisdiction of a Superior Court judge as it constitutes a [ translation ] “disguised placement” order, (2) constitutes a partial deprivation of parental authority, (3) is inappropriate, and (4) was rendered ultra petita . X asks that his custody be awarded to his father. [ 9 ] Mr. S. also appeals from the order that he pay 50 % of the expert’s fees for his supplementary report and his presence in Court. FACTS AND PROCEEDINGS [ 10 ] Ms. G. and Mr. S. were married on September 7, 1996.

They had two children together, X and Y. [ 11 ] During their time together, Mr. S. engaged in professional activities that required him to travel away from home frequently. Ms. G. was principally responsible for the children’s homework and supervision. Educational methods were a source of conflict between the parents; the mother adopted a stricter disciplinary approach while the father adopted a more permissive approach. [ 12 ] X plays hockey and does fairly well at school. He suffers from a mild case of attention deficit disorder, diagnosed in 2005. He has a tendency to avoid his school work. Ms.

G. encourages him to make the required effort, but Mr. S. thinks that she goes too far and that children have the right to play. Mr. S. expresses his disapproval in front of the child, who of course takes his father’s side, against his mother. [ 13 ] Y does very well at school and practises gymnastics, an activity that she enjoys, but her father disapproves of it as he considers it too demanding for a young girl her age. [ 14 ] In May of 2008, Ms.

G. initiated the break-up and filed a petition for divorce in which she sought custody of X and Y. [ 15 ] After the separation, the children lived with their mother in the former family home. [ 16 ] Mr. S. did not accept the separation and involved the children in the marital disputes. Ms. G. sought help from the CLSC. A social worker, Ms. Julie Evans, met with the mother and the children once every two weeks from September of 2008 to November of 2010. [ 17 ] On December 15, 2008, the parents signed an interim consent, which was ratified by the Court and renewed on several occasions.

It provided that the children would live with the mother and that the father would have access rights every other weekend and every other Saturday morning. It also provided that that the children could telephone their father every other day between 7:00 p.m. and 7:30 p.m. In the same document, the parents appointed a psychologist, Mr. Raymond David, to prepare a psycho-social evaluation report in order to assess the parents’ parenting abilities and make a recommendation regarding the children’s custodial arrangements. [ 18 ] On Ms. Evans’ suggestion, Ms.

G. registered for a co-parenting workshop in the spring of 2009 and suggested that Mr. S. do the same. Ms. G. attended the meetings regularly throughout the session, but Mr. S. did not participate. [ 19 ] Generally speaking, communication between the parents has been difficult. Mr. S. would refuse to answer his telephone or would hang up abruptly. He blocked all emails sent to him by Ms. G. for the better part of a year.

[ 20 ] As the parents could not come to an agreement on custodial arrangements for the summer of 2009, they asked the Court to decide on the matter. On June 23, 2009, Riordan J. ordered alternating custody on a one week / one week basis, from June 25 to September 4, 2009. [ 21 ] Mr. David filed his report on February 24, 2010. For a better understanding of this case, and of the trial judge’s reasons in particular, I find it necessary to reproduce extensive extracts of his report. [ 22 ] After having set out the parameters of his professional assessment of the parents and the children, Mr.

David set out his observations as follows: [ translation ] In view of this information, the observations made during interviews, and the parents’ psychometric test results, the following conclusions may be drawn: 1) Both parents have very good parenting abilities and characteristics; 2) The two children are currently developing within normal boundaries, with the exception in X’s case, of a recently diagnosed attention deficit; 3) X appears to have divided loyalties with respect to his parents ; the mother reports that in certain circumstances, X presents difficult behaviour and can be disobedient; he has trouble respecting her authority; he often behaves this way immediately following telephone or face-to-face contact with his father; 4) As previously mentioned, it should be noted that, like the mother, Mr.

S presents no personality deficiencies, and the psychological functioning of both parents is within normal boundaries. That said, the father appears to be having difficulty adjusting to the separation . This difficulty is manifested principally in the following ways:

a) The father disagrees with just about everything that the mother suggests in regard to the supervision of the children, such that any degree of consistency with respect to the children’s activities and schedules is, for all intents and purposes, impossible to achieve;

b) The father seems to regularly overreact to everyday situations, for example: • He asked us to go watch a video at the arena of an interaction between him and the children’s mother during one of X’s hockey games. The father characterized this interaction as violent on the mother’s part.

In our view, it is obvious that there was an argument between the parents, and the mother may seem somewhat more aggressive in the interaction than the father, but she did not appear violent to us; • It seems that he has asked the police to intervene in family situations on several occasions; these interventions and requests are inappropriate in the opinion of the undersigned and have led to an escalation of stress and tension, of which the children are the victims.

It is worth repeating that both parents have good parenting abilities, and if it were not for the significant conflict between them, we would tend to favour a shared custody arrangement . [Emphasis in original.] [ 23 ] The psychologist Raymond David then explained the reasons why he was unable to recommend shared custody: [ translation] In this context, although 1) the relationship between the children and their father is good, and 2) the father’s parenting abilities are good, we do not see how shared custody could be implemented at this time, considering 1) the parents’ ability [ sic ] to agree, even minimally, on the parameters of the developmental activities of the children, and 2) the inability, principally of the father, to keep the children out of the parental conflicts .

On this issue, we note the existence of scientific literature explaining that conflict itself can have a very negative impact on children’s development, both psychologically and physically, and can become a significant source of adjustment problems in children : Marital conflict is a key factor in adjustment problems in children. Research is reviewed indicating that conflicts are stressful for children, and increase their aggression and enmeshment in parental disputes.

Field studies, supported by recent experimental tests, indicate that sensitization to destructive conflict occurs, resulting in greater reactivity. Marital conflict can disrupt parenting and attachments, increase aggression between siblings, and even impact extended family members such as grandparents. Intense, aggressive conflicts and those centering on the child are particularly destructive. By contrast, resolution much reduces negative reactions and can be detected through a variety of channels of information.

Moreover, in shared custody arrangements, it is essential for the parents to be able to agree on everyday guidelines for their children in order to encourage optimal development :

“Given the continuing parental contact and negotiation required to sustain joint physical custody, it is associated with poor adjustment when it occurs in a high-conflict context” Currently, the parents do not agree on several points concerning their children’s development, and the following is a list of the elements that appear to be most often retained in the scientific literature as reasons not to implement shared custody : 1) The first factor is the parents’ ability to separate their past matrimonial difficulties from the parental decisions that they must make in the context of shared custody; 2) The quality of the relationship between the child and his or her parents; 3) The psychological stability of each parent; 4) The desire of each parent to be in a shared custody arrangement; 5) Any problem that either parent may have with drug or alcohol addiction; 6) The level of anger and bitterness present between the parents; 7) Any problems that either parent may have with the law; 8) The differences between the parents with respect of discipline; 9) The flexibility in the

schedule of each parent with respect to their availability; 10) The geographical proximity of each parent’s home to the other; 11) The age of the child. [Emphasis in original; citations omitted.] [ 24 ] In conclusion, the psychologist recommended that custody of the children X and Y be granted to the mother, Ms. G., and suggested that the father, Mr.

S. be granted access rights. [ 25 ] The psychologist suggested that [ translation ] “ no telephone contact should be permitted at this time , neither for the father, nor for the mother, while the children are with the other parent, considering the effect that these telephone calls have on the children ”. [Emphasis in original.] [ 26 ] The psychologist Raymond David also suggested terms for the children’s activities, in particular X’s hockey and Y’s gymnastics. [ 27 ] He also suggested a shared custody arrangement on a one week / one week basis during the summer holidays. [ 28 ] Finally, the psychologist recommended that the parents, Ms.

G. and Mr. S., undertake personal steps to learn to communicate and respect each other in the best interests of their children. [ 29 ] For his twelfth birthday, in June of 2010, Mr. S. gave his son a cellular phone without consulting Ms. G. Since then, X and his father have been in daily contact and speak to each other up to ten times a day. X’s attitude towards his mother has deteriorated. When a situation makes him unhappy, he calls his father (or threatens to do so), and his father systematically takes his side, against X’s mother. [ 30 ] Mr.

S. shared his feelings with the children, discussed the legal proceedings with them, and showed X some of the documents related to the divorce. He encouraged the children to speak negatively about their mother to the psychologist Raymond David so that he would not recommend that Ms. G. be awarded custody. [ 31 ] On November 17, 2010, following a disagreement with his mother, X threw a fit and left his mother’s home to go live with his father. At the end of May of 2011, he was still living with his father and had limited contact with his mother. [ 32 ] On January 14, 2011, Carole Hallée J. ordered that Mr.

Raymond David prepare a supplementary expert report in view of these new facts. [ 33 ] On February 2, 2011, the psychologist Raymond David filed an update to his report. First of all, he concluded that there were no symptoms of parental alienation: [ translation ] In view of these observations and the information gathered, we note that Y and X are capable of maintaining appropriate relationships with both their mother and father .

During the children’s visit to our office, no symptom of parental alienation , as described by the psychiatrist, Richard Gardner, was observed by the assessor , in either Y or X in regard to either of the parents. The symptoms present in cases of alienation may be summarized as follows : 1) The first characteristic is a smear campaign as the child incessantly asserts hatred and fear in regard to the alienated parent.

In terms of behaviour, the child increasingly avoids contact with the alienated parent, refuses to visit or speak to him or her on the telephone, or refuses any other form of contact; When the child is with the alienated parent, the child will often express him or herself in the third person, e.g. [ translation ] “tell dad that I

do not want to go to Walt Disney Land with him because he forces me to have fun, and all I want is to be home with my mother"; The child refuses or rejects all forms of gifts or presents from this parent; 2) The child expresses absurd, illogical, weak, and inconsistent rationalization in order not to see or to avoid all contact with the parent. 3) The child uses sentences, words, and scenarios that in no way reflect the child’s experience or cognitive concepts that are inappropriate in the context of the child’s development. 4) The child completely lacks any sense of ambivalence towards both parents, regarding one as entirely bad and the other as entirely good. 5) The child claims that it is his or her decision to reject the parent; however, the sentences and concepts invoked by the child in regard to the alienated parent are an exact duplicate of the assertions of the alienating parent, which is an indication of the influence that the alienated parent has on the child. 6-7) The sixth and seventh criteria describe how the alienated child shows unconditional support for the alienating parent.

This parent becomes idealized and is seen as someone who can do no wrong and who has no weakness. Moreover, no feeling of guilt or loss is discernible in the child with respect to the alienated parent.

The child demonstrates a complete lack of empathy towards the alienated parent. 8) Finally, the feelings of fear and danger inherent in the relationship with the alienated parent become generalized and include family members and occasionally the friends of this parent. [Emphasis in original; citation omitted.] [ 34 ] Ultimately, the psychologist Raymond David concluded that in the circumstances, it would be preferable to award custody of X to his father and to reassess the situation after a six-month period: [ translation ] During individual meetings with both parents, they informed us that 1) The parental coaching intervention that we recommended in our February 2010 report had not yet been implemented, but both parents confirmed that they were motivated to participate.

We believe that this intervention should be a priority for both parents . 2) The observations made in the context of this update and the information obtained from both parents during our initial assessment and the update, indicated to us that the children, especially X, may act or react in accordance with the father’s emotional state , i.e. whether he is calm, smiling, and happy as opposed to anxious and angry. Mr. S. needs to understand that his emotional state has a direct impact on X’s attitude , i.e., whether he is polite, agreeable, and smiling as opposed to vindictive and difficult towards his mother.

It is crucial that both parents work on developing their emotional self-awareness in order to fully understand what the children are reacting to. An accurate explanation obtained through parental coaching should permit both parents to adequately correct the situation. For the time being, we believe that X could continue to live with his father during the week, and Y with her mother, but that the children should spend every weekend together, alternating equally between their mother and father, from Friday evening after school until Monday morning when they go back to school.

Moreover, no telephone calls to the other parent should be permitted for the time being during the week or the weekend, except in case of an emergency, until such time as this issue is addressed through the parental coaching intervention. Parental coaching should begin as soon as possible in order to correct the message that the parents are sending to the children and the structure that they are providing for them.

We believe that after a six-month parental coaching intervention, the situation should be reassessed . [Emphasis in original.] [ 35 ] The hearing before the trial judge lasted four days, from March 1 to March 4, 2011. He rendered his judgment on May 30, 2011. [ 36 ] On August 3, 2011, Hilton, J.A. dismissed Mr. S.’s motion for a stay of the provisional execution. EVIDENCE [ 37 ] Both parents testified at length and reiterated their criticism of each other. [ 38 ] Ms. Julie Evans, the social worker who intervened with the family, also testified, as did a friend of the family, Ms. W.

Sc., and the gymnastics coach, Ms. V. D.

[ 39 ] The psychologist Raymond David also testified. He elaborated on the observations and recommendations set out in his reports. [ 40 ] It is necessary at this juncture to repeat his comments concerning boarding school as this order constitutes a significant portion of the issues before the Court. I thus reproduce his testimony on this point in its entirety: [ translation ] Q. Okay. Now, Mr. David, the other scenario, the one that Ms. G. respectfully submitted to the Court, was that the Court award her custody of the two (2) children with limited access rights awarded to the father with regard to X.

What do you think of this solution? A. Well, that is ... surely the most or the least appealing and carries its share of risk, that is, it may be an attempt to prevent a situation of contamination, but sometimes in trying to fix a big problem like this, we create another bigger problem, running away for example. A child who remains emotionally connected, even at twelve (12), thirteen (13), or fourteen (14) years old, if put in such a situation, can sometimes run away.

What I find more interesting, and what I have at times recommended and what has been implemented and has led to surprising results, is boarding school. Boarding school is a neutral environment, it is not a punishment, it is a place where children can be decontaminated, and in that sense, it can be useful , but that is because if somehow full custody was granted to the mother, and X, at thirteen (13) expresses himself clearly, and what I was saying earlier, is that X presently exhibits oppositional behaviour, is vindictive, insulting, and dismissive towards his mother.

There are two (2) or three (3) stops on the road from oppositional to antisocial behaviour, but X is on that path. He is on that path because once a child has insulted, dismissed, and refused to listen to the parent, running away from that parent’s home is the very next step. Therefore ... Q. And, in your opinion, what do you think would be the great advantage of your proposed solution? A. Well, for the moment, we are trying to attenuate, defuse, and correct the situation.

Once again, what X has said to me is that I prefer being at my father’s, I feel better at my father’s because we fight less than at my mother’s. I also understood that for X and Y, it’s normal, they’re at that age, after all, etc. Thus, for some time, if it’s done in this manner, and the children are together for the entire weekend alternating between each parent, this seems to me an interesting interim solution during which the parents could correct some of their interventions and attitudes. [Emphasis added.] [ 41 ] I have reproduced a long extract of the psychologist’s testimony to provide the context.

It should be noted that the psychologist merely alluded to boarding school, he did not make a concrete suggestion to this end. IMPUGNED JUDGMENT [ 42 ] At trial, the parties filed a partial consent to corollary relief, which was ratified by the Court, such that the only issues upon which the judge had to rule were custody of the two children and support payments payable according to the terms of the custody arrangement, the respective incomes of the parties having been admitted. [ 43 ] Ms. G. seeks sole custody of the two children. Mr.

S. initially sought shared custody, but following X’s unilateral decision to go live with him, he now seeks sole custody of X and shared custody of Y. X wants to live with his father and see his mother occasionally. For her part, Y is happy living with her mother and visiting her father every two weeks but would also like to be in shared custody. [ 44 ] The trial judge found that shared custody was not in the children’s interest, considering the intensity and persistence of the conflict and the communication problems between the parents.

He was concerned with the father’s problematic behaviour, which were rubbing off on X. He noted that the child’s development was at risk as a result of this [ translation ] “infernal whirlwind”. He also found that the custody terms should try to limit the unfortunate influence that the father has on X and progressively re-establish the mother- son relationship. [ 45 ] The trial judge began the [ translation] “ discussion”

section of his decision as follows: [ translation ] [100] As mentioned above, after having suggested, in February of 2010, that custody of the children be awarded exclusively to the mother, Mr. David now recommends maintaining the status quo created by X’s unilateral decision to go live with his father. [101] This is also the child’s expressed wish.

But while the choice of a twelve year old child is an element that must be given serious consideration, it is not the only one, especially if other factors indicate that it is not in his interest to concede to his wishes. [102] It is the Court’s duty to go beyond these wishes, weigh them against other factors, and ensure that the best interest of the child prevails. [103] The Court is convinced by the evidence that the mother is the parent who is most capable of meeting X’s needs. [Citation omitted.] [ 46 ] The trial judge noted that Mr.

S. [ translation ] “ceased being the child’s parent to become his ally against his mother”, that he had an emotional self-awareness problem, and that he refused all suggestions of steps he could take to help himself or improve his co-

parenting abilities. While awarding custody of the children to Ms. G., the trial judge was of the view that X could not simply be forced to return to live with his mother given the state of deterioration of the relationship and the serious risk of him running away. He accepted the boarding school solution for X that Mr. David suggested during his testimony and that the parties did not dismiss during their respective arguments. He ruled that until the start of the 2011-2012 school year, the status quo would be maintained, i.e., Ms. G. would retain custody of her daughter, and Mr.

S. would retain custody of his son until the end of the 2010-2011 school year, and custody would then be shared on a one week / one week basis during the summer, as in the past. [ 47 ] Finally, the trial judge ordered Mr. S. to pay 50% of Mr. Raymond David’s fees for preparing the supplementary psycho-social report and for his presence in Court.

ANALYSIS Custody of the children [ 48 ] It is worth repeating at the outset that an appellate court must show the utmost deference to the trial judge, particularly in matters relating to child custody and access rights, as Bastarache J. of the Supreme Court stated in Van de Perre v. Edwards : [1] ... an appellate court may 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 each child is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [2] [ 49 ] The recommendation of the psychologist, whose services were retained by both parents and whose choice was ratified by the Court, is certainly an important factor in child custody decisions. [ 50 ] Considering the age of the child, his wishes must be taken into consideration. [ 51 ] In the present case, the trial judge chose to depart from the recommendation of the psychologist Raymond David and the preference that X clearly expressed at trial and repeated forcefully before this Court through his counsel. [ 52 ] The Court is not called upon to substitute its assessment of the evidence for that of the trial judge who, moreover, has had the advantage of seeing and hearing the parties, their witnesses, and the expert. [ 53 ] The trial judge explained his reasons, and despite the father’s and X’s criticisms of this decision, there is no justification for the Court to intervene and grant the change in X’s custody in favour of his father. [ 54 ] Regarding the custody of Y, the trial judge did not accept Mr.

S.’s application for shared custody. It should be noted that the psychologist, Mr. David, had not accepted this option either. [ 55 ] Mr. S. reiterated this application in his inscription in appeal and in his pleadings. [ 56 ] Mr.

S’s counsel, however, did not present any argument in this regard in her written pleadings, nor did she address this issue during her oral arguments. [ 57 ] There are no grounds for the Court to intervene on this issue. [ 58 ] The main issue before the Court pertains to the trial judge’s decision concerning boarding school for X: [ translation] [137] As of the 2011-2012 school year, ORDERS that X shall attend a boarding school.

The mother may choose the boarding school and advise the father of her choice within ten (10) days. [138] ORDERS that the cost of X’s boarding school shall be shared according to the parents’ respective incomes, i.e. 70% by the father and 30% by the mother during the 2011-2012 school year. [ 59 ] As mentioned in the introduction, the father, Mr.

S., and the son, X, contest this decision. [ 60 ] The grounds invoked in support of this contestation were well set out by counsel for X: [ translation ] 60.1. lack of jurisdiction of the Superior Court to make an order that falls under the jurisdiction the Court of Quebec, Youth and Family Division. 60.2. lack of grounds upon which to order a partial deprivation of parental authority; 60.3. inappropriate means chosen to restore the relationship between mother and son; 60.4. decision rendered ultra petita without having heard the parties.

[ 61 ] At the hearing, counsel for Ms.

G. stated that her client was satisfied with this order and informed the Court that X had been attending a boarding school since last September. [ 62 ] We must, however, consider the decision at the time at which it was taken, and the mother’s subsequent consent cannot now be invoked to justify the decision made at trial. [ 63 ] Without necessarily commenting on the first three grounds invoked by X’s counsel, I am of the view that the last ground is sufficient to quash the trial judge’s decision in this regard. [ 64 ] I have intentionally reproduced all of the evidence on this issue.

It clearly reveals that the psychologist did not recommend this solution and that neither the father nor the mother had presented any such request, notwithstanding the comments of the trial judge: [ translation ] [118] At the end of the testimony, Mr. David suggested that in cases such as this one, boarding school may be an appropriate solution. [119] The parents did not dismiss this during their arguments. [ 65 ] In regard to the silence of the parties, counsel for X correctly made the following apt comments: [ translation ] 30. …

(3) At no time during the trial did the judge indicate that the [ translation ] “boarding school solution” was being given serious consideration by the Court. Nor did the trial judge ask the parties to make arguments on this issue. The judge inferred from the silence of the parties during the said arguments that they had not dismissed the [ translation ] “boarding school solution”. … How could the parties guess that the judge wanted their opinions on this issue? [ 66 ] There is no doubt that the trial judge was well intentioned.

Even in the absence of any evidence of [ translation ] “parental alienation”, it was open to the judge to conclude that the father was acting in a manner that undermined his son’s relationship with his mother: [ translation ] [94] In the Court’s opinion, while we cannot speak of formal parental alienation, the father nevertheless often exhibits similar conduct, and X exhibits several troubling reactions listed herein. [95] He denigrated his mother in front of Ms.

Evans, claiming through his counsel that he is afraid of her even though there is nothing to justify such fear, and has reduced contact with her to the strict minimum. [96] Moreover, he uses expressions that are not usually part of the vocabulary of a child of his age, such as [ translation ] “contract” (referring to the orders of the Court) and [ translation ] “gathering evidence“. [97] It should also be noted that parental alienation is difficult to prove. It occurs behind closed doors, insidiously and without any witnesses.

The parent who is the victim usually has to resort to indirect evidence, based on the comments and conduct of a young child. [98] The father’s actions are troubling, and even more worrisome to the Court is the fact that the father still does not seem to realize the enormous weight that his conduct places on the shoulders of his young son, nor the devastating effect that his attitude is likely to have on his son’s emotional balance. [99] The negative influence he has on his child must be constrained, and the custody terms accepted by the Court must take this into consideration. [ 67 ] Even if we take for granted that the Superior Court judge had the discretion to order that the child attend boarding school (counsel for X claims that this has never been done), he could not, with all due respect, make such an order without discussing it with the parents or the psychologist. [ 68 ] During the hearing, counsel for Ms.

G. implicitly admitted that the trial judge could not make such an order unilaterally. He indicated that his client would be satisfied with a [ translation ] “recommendation from the Court”. [ 69 ] The Court has no additional evidence that would allow it to make such a recommendation except for a hope that it could be useful in some way. [ 70 ] In order to show as much deference as possible to the trial judge’s findings, which are supported by the evidence, and to his intentions, it would be appropriate to order that Ms.

G, alone, may choose the educational institution that X will attend and that if she chooses a boarding school, Mr. S. shall contribute in the proportion established by the trial judge. [ 71 ] I would thus replace paragraphs 137 and 138 with the following: [ translation ] [137] DECLARES that the respondent, Ms. N. G. may choose, alone and without consulting the appellant, Mr. S., the educational institution that X is to attend as of the current school year.

[138] If Ms. G. enrols her son X in a boarding school, the Court ORDERS that the cost thereof be shared according to the parents’ respective incomes, i.e., 70% by the father and 30% by the mother as of the 2011-2012 school year. [ 72 ] The trial judge ruled that the basic contribution of Mr. S. towards the needs of the children is $10,140 per year. He reduced this amount as a result of the additional contribution that Mr.

S. will be required to make for boarding school fees: [translation ] [130] Since X will attend boarding school during the school year, a significant portion of expenses related to food and shelter will be included in the boarding school fees, such that the mother will not incur these expenses as she would have if the child lived with her on a full-time basis. [131] As the father will be required to contribute 70% of X’s boarding school fees, and these combined fees represent a significant portion of the parents’ respective basic support contributions, the support payment that the father will be required to make should be reduced. [132] Exercising its judicial discretion, the Court consequently reduces Mr.

S.’s basic contribution to X’s needs by $2,000, thus establishing the support payment that Mr. S. will be required to make to $8,140 per year or $678 per month. [ 73 ] If X does not attend boarding school, the child support payments will need be revised in accordance with the prescribed scale, taking the new facts into consideration. The following sentence should thus be added to the end of paragraph 139: [139] … If Ms. G. chooses not to enrol X in boarding school, the amount of child support shall be revised according to the prescribed scale, while taking the new facts into consideration.

The expert’s fees [ 74 ] In his inscription in appeal and in his memorandum, Mr. S. challenges the order that he pay 50% of Mr. Raymond David’s fees for the preparation of the psycho-social report and his presence in Court. His memorandum contains only one paragraph on this issue: [ translation ] 69. The judge erred in ordering the appellant to pay the expert’s fees, considering that he opposed Mr. David’s appointment because Mr. David was not necessary and because the appellant no longer had confidence in him.

During his testimony, the expert confirmed to the Court that he had initially been retained jointly ( March 3, 2011, A.F., Vol. IV, at 942, line 16 to 952, line 9 ). [ 75 ] The psychologist Raymond David testified as follows: [ translation ] A. Well, initially, I was retained jointly by Maître Walsh, who represented Mr. S. at the time, and Maître Artinian, who represented Ms. G., to prepare a complete psycho-legal report in order to make recommendations as to the custody of and access to the children. … [ 76 ] The interim consent signed by both parties on December 15, 2008, provides the following: 1.

The parties agree to appoint Mr. Raymond David, psychologist in order to complete a detailed and in depth psycho-social report (including testing) regarding the parties parental capacity and the custodial scenario which would be in the children's best interest; […] 9. The parties hereby acknowledge that a psycho-social expertise is the appropriate way of evaluating the situation regarding their minor children and that no attorney shall then be appointed by the Court; [ 77 ] This is sufficient to dismiss the appeal on this issue. There was no reason to exempt Mr.

S. from paying 50% of the psychologist’s fees for his supplementary report, which was requested by Hallée J., or for his presence in Court. CONCLUSIONS [ 78 ] In the circumstances, I would allow the appeal without costs for the sole purpose of substituting paragraphs 137 and 138 of the trial judgment with the following: [ translation ] [137] DECLARES that the respondent, Ms. N. G. may choose, alone and without consulting the appellant, Mr. S., the educational institution that X is to attend as of the current school year. [138] If Ms.

G. enrols her son X in a boarding school, the Court ORDERS that the cost thereof be shared according to the parents’ respective incomes, i.e., 70% by the father and 30% by the mother as of the 2011-2012 school year.

and adding the following sentence to paragraph 139: [139] … If Ms. G. chooses not to enrol X in boarding school, the amount of child support shall be revised according to the prescribed scale, taking the new facts into consideration. ANDRÉ FORGET, J.A.