2011 QCCA 1529, 2011 QCCA 1529

Unofficial English Translation Droit de la famille — 112487 2011 QCCA 1529 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-007432-112 (200-12-079213-105) DATE: June 27, 2012 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. GUY GAGNON, J.A. JEAN BOUCHARD, J.A. M. H. APPELLANT – Plaintiff v. D. B.

RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant seeks to correct a judgment of the Court (section 520 C.C.P.) rendered on August 24, 2011, dismissing her appeal, each party paying their costs, on the ground that the judgment failed to determine a part of her claim. [ 2 ] That judgment affirmed the judgment of the Superior Court, which, inter alia , awarded custody of X (the parties' child born on ..., 2005) to the respondent, granted the appellant significant access rights despite the physical distance between the parties, and set the child support payments due by the appellant to the respondent at $195 per month starting on June 1, 2011, with indexation. [1] [ 3 ] The access rights granted are: [translation] [96] GRANTS the following access rights to the plaintiff, Ms.

M.H.: - For summer vacation : a minimum of six weeks beginning five days after classes end and ending five days before classes begin; - For semester breaks : two consecutive weeks; - For the holidays : 1. Every other year, the day after classes end for a minimum of ten days, until X goes back to school; 2. Every other year, from December 26 for a minimum of ten days and if possible until X goes back to school; 3. The non-custodial parent will have the child for Christmas 2011; • When Mr. B. is in City A or Ms.

H. is in Rostock, the parties agree to exercise shared custody on an alternating weekly basis. [ 4 ] The dispute concerns the allocation of the cost of plane tickets for X’s travelling companion so that the appellant can exercise her access rights. According to the appellant, this entails three return flights from Rostock, Germany, to City B, [2] if the respondent accompanies the child for the other portion of travel, that is, the return to Germany.

If the respondent refuses to accompany the child, the appellant would be required to make six return trips. [ 5 ] The trial judge did not settle this issue and merely concluded: [translation] [101] TAKES NOTE of Mr. B.'s statement that he will pay for the return tickets for X [3] should Ms. H. reside in Quebec and not travel to Germany to visit their daughter for the provided access rights.

[ 6 ] The judgment of the Court states: [translation ] [37] On the other hand, the appellant will not be excluded from her daughter's life by the effects of the judgment. The respondent has undertaken, before the Superior Court, that should he be awarded custody, he will pay the cost of plane tickets for X and a travelling companion for four years, in order for the agreed upon access rights to be exercised.

Also, he undertakes to support the cost of an apartment for the appellant in Rostock, should she chose to move there, or until she finds employment, if any. [4] The judge considered these elements, among others, as he was authorized to do. [ 7 ] In fact, the parties did not plead this issue on appeal and all their efforts were focused on debating custody of the child. Reading the transcript of the discussions that took place at trial leaves many questions unanswered.

It is inaccurate to conclude that the respondent's undertaking had the scope reported in the second sentence of that paragraph. [ 8 ] The challenge presented by this gap in the judgment of the Court is, however, significant since the appellant's ability to exercise her access rights is compromised.

The appellant cannot assume a significant portion of the transportation costs for X’s travelling companion when her annual gross income is only $27,300. [5] At trial, she added that the cost for a single return trip ticket could reach $2000. [ 9 ] As for the respondent's income, it is estimated to be $32,500, but the financial capacity of his parents, who are wealthy, is relevant to the debate since the respondent offered the appellant the possibility of coming to live in Rostock, with his parents' assistance.

He offered to provide her with an apartment for four years or until she found employment. [ 10 ] This proposition, even though repeated in the judgment under appeal, has revealed itself to be unrealistic, since it would require the appellant to quit her job and seek new employment in a country where she neither speaks nor writes the language, where her daily life would bring her nearer her daughter but farther from her family, and where she would face the further challenge of getting the necessary status to allow for such a long stay in the receiving country. [ 11 ] To correct the above deficiency, which occurred inadvertently, it is appropriate to correct the judgment of the Court and order that the respondent pay transportation costs for X's travelling companion when summer vacation and holiday access rights are exercised and to order that the appellant do the same when semester break access rights are exercised.

FOR THESE REASONS, THE COURT : [ 12 ] GRANTS the motion, without costs. [ 13 ] CORRECTS the judgment rendered August 24, 2011, by substituting paragraph 4 with the following: [4] ALLOWS the appeal, each party bearing his or her own costs, for the sole purpose of ORDERING the respondent to pay transportation costs for X's travelling companion when summer vacation and holiday access rights are exercised and ORDERING that the appellant do the same when semester break access rights are exercised. LOUIS ROCHETTE, J.A. GUY GAGNON, J.A. JEAN BOUCHARD, J.A. Ms. M. H. Appellant Mtre Claudia P.

Prémont BRODEUR, PRÉMONT, LAVOIE AVOCATS INC. For the respondent Date of hearing: June 21, 2012 Droit de la famille — 112487 2011 QCCA 1529 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC NO: 200-09-007432-112

Unofficial English Translation (200-12-079213-105) DATE: AUGUST 24, 2011 CORAM : THE HONOURABLE LOUIS ROCHETTE, J.A. GUY GAGNON, J.A. JEAN BOUCHARD, J.A. M. H. APPELLANT – Plaintiff v. D. B. RESPONDENT- Defendant JUDGMENT [1] THE COURT: - On appeal from a judgment of the Superior Court, District of Quebec (the Honourable Mr. Justice Frank G.

Barakett), rendered on May 31, 2011, that granted the divorce between the parties, awarded custody of their daughter to the respondent, granted the appellant access rights to the child according to the terms and conditions agreed to by the parties, and set the child support payable by the appellant to the respondent; [2] Having examined the file, heard the parties and on the whole deliberated; [3] For the reasons of Rochette, J.A., with which Gagnon and Bouchard, JJ.A. agree; [4] DISMISSES the appeal, each party paying his or her own costs, given the nature of the case; [5] CERTIFIES the parties’ consent to amend paragraphs 97 and 98 of the judgment a quo to read: [97] SETS the support payable by the mother to the father for the child X at $195 per month starting June 1, 2011, indexed annually according to the law as of January 1, 2012. [98] ORDERS the father to pay the mother $240 Canadian dollars per month in child support for X, as of May 31, 2011. [6] And to add the following paragraph after paragraph 101: [102] CERTIFIES the parties’ undertaking to share the net expenses for daycare incurred for X between them, in proportion to their income. [7] RENDERS ENFORCEABLE this agreement.

LOUIS ROCHETTE, J.A. GUY GAGNON, J.A. JEAN BOUCHARD, J.A. Mtre Annie Frédérick For the appellant Mtre Claudia P. Prémont BRODEUR, PRÉMONT For the respondent Date of hearing: August 2, 2011

REASONS OF ROCHETTE, J.A. [8] The parties met in Finland in 2002. They fell in love. They alternated between Germany and Quebec for one or two months at a time until 2004. The appellant lives in Town A and the respondent in Rostock, a city of approximately 200,000 residents on the Baltic Sea in northern Germany. [9] In ..., 2004, the appellant became pregnant. The parties moved to Rostock and married on November 6, 2004. Their daughter X was born on ..., 2005. She is six and-a-half-years old.

Custody of X is at the heart of the dispute before the Court. [10] During the summer of 2005, the small family moved to Town A and lived there for one year. They then returned to Rostock, where the parties planned to establish their permanent residence until the end of the summer of 2010. They planned to send X to daycare in Germany, then to school in Quebec. Indeed, until the spring of 2007, X attended daycare in Rostock, where she began the gradual process of fitting in. [11] The appellant, however, had difficulty finding and keeping a job because she did not speak German well enough.

The respondent worked as a freelance journalist. The couple organized several cultural events, for which they were not paid. [12] In February 2007, the appellant was offered a job as a ... coordinator at Centre A. With the respondent’s agreement and encouragement, she accepted the offer and returned to Town A on March 19, 2007. One month later, the respondent and X moved there to join her. The parties made new arrangements. They planned to remain in Town A until 2010 so that X could finish kindergarten.

In 2011, they would return to Rostock where X would complete the four years of primary school. [13] But their relationship quickly deteriorated. They separated in May of 2007. The respondent left Town A on May 23, 2007, but returned the following June 27 to look after X. He lived at the appellant’s residence and took care of X on a regular basis because her mother was working. [ 14 ] In early Fall of 2007, the respondent received a bursary to study at the University of Berlin [6] for the 2007-2008 year. He left Town A to take advantage of this opportunity.

Since then, the parties have respected the following agreement concerning X’s custody: when the respondent is in Town A, the parties alternate custody on a weekly basis; otherwise, X lives with her mother in Town A. X goes to see her father in Germany during the summer, for one and a half to two months at a time. [ 15 ] As a matter of fact, since June of 2008, the respondent has spent several months, including the holiday period, in Town A to see X. He has a pied-à-terre there in addition to his apartment in Rostock.

On these occasions, he takes care of X at the appellant’s home because of the small size of his apartment, while she goes and [ translation ] “camps out” at friends. In late 2009 the respondent rented a larger apartment that could accommodate X, a few blocks down from the appellant’s. [ 16 ] Furthermore, the respondent has a new German spouse, Ms. T. Bl., who is studying medicine in Berlin. X met her for the first time during the summer of 2008 in Rostock. Ms. Bl. was also in Rostock during the summers of 2009 and 2010. She was pregnant during the trial but has since miscarried. Ms.

Bl. testified at the hearing. [ 17 ] In the summer or fall of 2008, the appellant informed the respondent that she no longer intended to move to Germany so that X could attend primary school. She did not speak enough German to find employment and wanted X to go to primary school in Town A. The respondent was in shock. He tried to convince her to change her mind. He wanted X to absorb both German and Quebec culture and remain bilingual (German/French). [ 18 ] The respondent returned to work in 2009 as a freelance journalist. He travelled a lot and wrote a book.

More recently, he has been offered employment that would permit him to have a more stable life in Rostock. The appellant was still working as a … coordinator in Town A, thirty hours a week over four days. [ 19 ] In 2008, 2009 and 2010, the respondent and his new spouse spent the holidays in Town A. [ 20 ] On March 12, 2010, the appellant filed for divorce and sought sole custody of X as of the 2011-2012 school year. The relationship between the parties became difficult and antagonistic.

On June 7, 2010, the Superior Court homologated an [ translation ] “Agreement for permission to travel and a safeguard order” that provided for alternating custody when the respondent was in Town A. Otherwise, responsibility for X is shared [ translation ] “according to each party’s obligations.” The respondent was authorized to take X to Germany on vacation for two months during the summer of 2010 . [ 21 ] In September of 2010, X started kindergarten at School A where she has adapted nicely.

She spent the summer of 2011 with her father in Rostock. * * * [ 22 ] The trial judge concluded from the evidence that: X is comfortable in both Germany and Quebec, and at both her mother’s and her father’s; she is perfectly bilingual (German and French); the primary school chosen by the respondent for X [7] in Rostock offers schooling in German and in French, so the child is not at risk of losing her French; her mastery of German would, to the contrary, be threatened if the child were to attend primary school in Town A; X should not be deprived of the opportunity to become aware of other

cultures; the respondent’s parents are wealthy and the child can benefit from this; the respondent has offered to pay, through his parents,for an apartment for the appellant if she comes to live in Rostock for as long as she is without employment, which would make jointcustody possible. [23] The judge also noted that: the respondent encourages X and her mother to communicate, whereas the appellant is less inclinedto [translation] “maintain access with the father”; the respondent offers more stability for the future than the appellant and offers X abroad range of sports activities. [24] The judge concluded as follows: [translation] [85] Before the present litigation, the child’s custody was not awarded to either parent because the parties agreed between them to aform of joint custody. [86] For X, living in Germany would not be a new environment or a new residence or require an effort from her to make new friends orget to know a new family or surroundings. [87] Lastly, it is more probable that the father will maintain and encourage contact with the mother as the evidence demonstrates thatthis has been the situation in the past, the mother being a little reticent to encourage contact with the father for the past year or twobecause the mother has a certain dependency on her daughter. [88] The father also shows a willingness to help the mother travel back and forth to Germany, offering her free lodgings in Germanyuntil she finds employment should she decide to return there. [89] Lastly, but of less importance, the child’s financial security is more secure in Germany given that the paternal grandparents arewell off. [90] Both parents appear to be in good physical health, although the father is less emotional overall than the mother, who sometimespanics, which the child must necessarily sense.

In addition, the father’s spouse is a doctor. * * * [25] The applicable standard when intervening on appeal in child custody is stringent, as the Supreme Court noted in a frequentlycited 2001 judgment: [11] In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that theappellate 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.] [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. … The narrow power of appellate review does not allow an appellate court to delve intoall custody cases in the name of the best interests of the child where there is no material error as decided in Hickey.

The Court of Appealis not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge. …[8] [26] And a little further on: [15] As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error. If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors.

In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore, (1999),1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material errorif it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affectedhis conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.[9] [Emphasis added] [27] When rendering a custody order, the court takes into consideration only the best interests of the child as determined by

reference to the means, needs and, in general, situation of the child. [10] [ translation ] “The judge may consider all the relevant elements when the interests of the child are at stake. … The element presented is always appreciated in light of the possible or current impact.” [11] The Supreme Court’s remarks in King v.

Low remain pertinent: … It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. … [12] [ 28 ] The court also considers whether the person who seeks custody is willing to facilitate contact with the other parent. [13] * * * [ 29 ] The trial judge had to make a difficult decision with agonizing consequences for one of the parents. The parties’ parental capacity was not in issue.

We have here two good parents, which the judge recognized at the outset. It was the first decision on the merits regarding X’s custody. [ 30 ] First , the appellant criticizes the judge for not having considered that X’s primary living environment was in Town A, where she had lived for the most part since April of 2007, where she had just finished kindergarten, and where she had developed an important relationship with her maternal grandparents.

The judge overlooked the fact that she was the primary parental figure in the circumstances. [ 31 ] The appellant affirms, however, that she wishes to maximize contact between X and the respondent. She feels that she has accommodated the respondent up to now by allowing and encouraging X to spend her summers in Germany and by letting the respondent use her apartment to take care of their daughter when he is in Town A. She adds that it would be impossible for her to live in Germany.

Given the respondent’s profession, it would be more appropriate to continue sharing custody in Town A from time to time, as has been the case in the past. [ 32 ] She also criticizes the judge for considering the fact that the respondent has had a spouse for three years and disagrees that the respondent’s environment would be more stable than hers. [ 33 ] The trial judge heard the parties for almost one day.

He witnessed their attitudes, assessed their summaries of the facts, listened to their versions of the issue of X’s custody, and considered their concerns. [ 34 ] The judge did not err in finding that X is an adaptable child, who is as comfortable in Germany as she is in Quebec. She feels at home in both places. She is used to spending time in Germany without the appellant and with the respondent, his spouse, and his German family, with whom she has a good relationship. X has been in Rostock now for more than two months. This town cannot be considered a new living environment for her.

She has friends and family there and speaks the native tongue. [ 35 ] The judge also correctly concluded that the respondent has spent a great deal of time in Town A taking care of X since the parties separated and has been present in the child’s life, though to a lesser extent than the appellant due to circumstances. The rule of status quo does not apply categorically in this case, as the appellant argues. [14] [ 36 ] As to the contact between the child and the non-custodial parent, the judge found on the evidence that the respondent showed more openness than the appellant.

The appellant was right to argue that the judge erred in criticizing her for having interrupted a Skype conversation between X and the respondent. But the judge’s conclusion could have been based on other evidentiary elements taken from the testimony. Also, the respondent will soon no longer be able to continue spending long periods in Quebec due to personal and professional reasons. The respondent has received job offers that will allow him to remain in Rostock for more sedentary work. He has been in a stable relationship for a while.

The judge could not ignore these elements. [ 37 ] In addition, the appellant will not be excluded from her daughter’s life as a result of the judgment. If he is awarded custody, the respondent has undertaken before the Superior Court to pay, for a period of four years, the cost of airplane tickets for X and someone to accompany her so that the agreed access rights may be exercised.

He has also undertaken, should she decide to live in Rostock, to pay for an apartment for the appellant until she finds a job, if necessary. [15] The judge considered these elements in particular, as it was proper to do. [ 38 ] Lastly, with respect to the parties’ stability and the respondent’s situation, the judge did not err in considering the fact that the respondent has had a spouse for three years, [16] but this does not mean that the appellant, who lives alone, offers a less adequate living environment for the child.

The judge was wrong, however, in ruling that the appellant did not have a stable job and that she had changed apartments twice. These errors, however, may not be considered to be determinative in the context of the evidence as a whole. [ 39 ] Second , the appellant argues that the judge erred in considering factors that were not relevant to assessing the best interests of the child, adding that some of these factors were even discriminatory.

More particularly, the judge erred: in finding that X had a greater chance of remaining bilingual and keeping both her cultures by attending primary school in Rostock, since X will continue spending the summers in Germany if the appellant is awarded custody; in his assessment of the French-language instruction offered at School B; and in assigning too much importance to the respondent’s linguistic knowledge, education, potential and openness to different cultures, as well as to his parents’ wealth, his profession, and his spouse’s profession. [ 40 ] The appellant specifies that she can speak three languages (English, French, and German), just like the respondent.

She adds that the judge disregarded her level of education, her potential, and her openness to other cultures, and that no evidence was adduced regarding the financial situation of X’s paternal grandparents. [ 41 ] She also argues that the judge should not have: assigned so much importance to the 2007 agreement concerning X’s education (kindergarten in Quebec and primary school in Germany); noted that the respondent and his spouse offered her more sports and

recreational activities; and concluded that she was emotionally dependent on X and more emotional than the respondent. [ 42 ] The respondent and his spouse testified that X’s German is not as good as her French, which is not surprising given that she has lived primarily in Town A since 2007. The appellant cannot remedy this situation on her own. She does not master German well enough to work in Germany and communicates in English with the respondent, whose French is rather rudimentary. [ 43 ] The judge did not overestimate the importance of language for X.

Mastering a language is essential to adapting to and understanding the underlying culture. The judge felt that it was important for X to acquire and preserve both the Quebecois and German languages and cultures of her parents; this will ensure that she can identify with both of them and understand their backgrounds and what made them who they are.

This very understandable concern is far from futile or inappropriate . [17] This aspect of X’s situation is highly relevant. [ 44 ] At primary school B, schooling is offered in French and German, alternating weekly. [18] According to the respondent’s testimony, children receive a Certificate in French Studies recognized by the French government.

The daycare service is supervised by a French teacher, and many French students attend the school. [19] X would be in a bilingual institution, something the school chosen by the appellant cannot offer. [ 45 ] It was permissible and indeed necessary for the judge to take this element into account when determining the best interests of X. In so doing, he did not decide that German or European culture was superior to Quebec culture. He decided that it was important for X to preserve and deepen her dual culture, and that she would not lose what she had acquired.

He considered the child’s particular situation based on the evidence as a whole. [ 46 ] The judge’s findings left all doors open. X could, if need be, easily settle into a French school and continue studying without falling behind. The reverse is not true. Once she is focused essentially on learning French, and no doubt English as well, transferring her to a German school will become a more complicated proposition and create a very difficult obstacle for the child to overcome. [ 47 ] On another note, the judge appears to have been impressed by the respondent’s professional accomplishments.

He could not overlook them. His comments regarding the appellant’s level of education were unfair, however. They obscured the fact that the appellant has a bachelor’s degree in Classics from University A. [20] Furthermore, her professional accomplishments show that the appellant is also open to other cultures. On the other hand, the judge acknowledged that both the appellant’s and the respondent’s families have good values.

In sum, the judge’s remarks did not give rise to an error that would justify our intervention. [ 48 ] Moreover, the judge had before him evidence on which to base his finding that the respondent’s parents were financially comfortable. He did not, however, question the appellant’s ability to provide for X’s needs; he noted that the child’s financial security would be guaranteed in Germany. Additionally, this is not an important consideration in his reasons. [ 49 ] The judge outlined the agreement entered into by the parties in February of 2007: [8] When Ms.

H. received her job offer in February and the parties discussed it, it was agreed that the defendant would move to Town A on the presumption that in the year 2011, the parties would return to live in Germany and that X would be registered at the A primary school (which teaches in French one week and in German every other week.). [21] [ 50 ] It is apparent that the parties felt it important that X preserve and master her parents’ mother tongues. They no doubt rightly considered that this would be in her best interests.

The best interests of the child, however, are not frozen in time but are [ translation ] “constantly shifting”. [22] Many things have happened since this was [ translation ] “planned”. [ 51 ] The parties separated shortly thereafter. They now live thousands of miles apart, and divorce proceedings are almost completed. That said, the reference to this “agreement” in the judgment a quo does not mean that the judge set aside the child’s best interests after having had to identify them during the inquiry and the hearing last March, and for the months ahead.

This is not my understanding of the trial judge’s thought process. [ 52 ] Lastly, the judge noted that X [ translation ] “has many activities and plays more sports with her father and his new spouse.” [23] This is a statement of fact that is undisputedly relevant [24] but, obviously, of only relative weight. [ 53 ] I shall decide the issue of custody. The judge, in light of the circumstances of this case, awarded custody of X to the respondent. When considering the evidence, he committed certain errors that in my view have no decisive impact on the outcome of the case.

The judge sought the best interests of the child at her current stage of development. He identified the solution that he felt would, in the current situation, best provide for the healthy growth, development and education of the child so that she will be equipped to face the problems of life as a mature adult. [25] [ 54 ] The appellant has not demonstrated that this finding contains a reviewable error and that the outcome should have been different.

The rule of deference should prevail with respect to this essentially fact-based and discretionary decision. * * * [ 55 ] The appellant’s final ground remains. [ 56 ] The judge was authorized under section 16(6) of the Divorce Act [26] to make an order for a definite period. On the other hand, section 17(5) of the Act allows a variation order in respect of a custody order where there has been a major change in X’s circumstances, at any time whatsoever.

The best interests of the child remain the determining factor at all times. [ 57 ] The respondent correctly pointed out that the support payable should have been set at $195, not $175, per month, in accordance

with the parties’ joint declaration during the hearing, which was outlined by the judge. [27] The parties’ agreement will be certified. The parties also agreed that the support payable by the respondent in the amount of $240 per month should be paid starting May 31, 2011.

Paragraph 98 of the judgment should be amended accordingly. [ 58 ] The judge also failed to include, in his conclusions, the parties’ agreement to share the net daycare expenses. [28] These will be assumed by the parties in proportion to their income, according to the usual rule in family law matters. [ 59 ] For these reasons, I would dismiss the appeal, each party paying his or her own costs given the nature of the case, and certify the parties’ consent to amend paragraphs 97 and 98 of the trial judgment to read: [97] SETS the support payable by the mother to the father for the child X at $195 per month starting June 1, 2011, indexed annually according to the law as of January 1, 2012. [98] ORDERS the father to pay the mother $240 Canadian dollars per month in child support for X, as of May 31, 2011. [ 60 ] And adds the following paragraph after paragraph 101: CERTIFIES the parties’ undertaking to share the net expenses for daycare incurred for X between them, in proportion to their income.

LOUIS ROCHETTE, J.A.