2011 QCCA 2164, 2011 QCCA 2164

Unofficial English Translation Droit de la famille — 113620 2011 QCCA 2164 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021847-116 (705-04-012749-087) DATE: November 22, 2011 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES R. FOURNIER, J.A. M. L. APPELLANT – defendant v. J. LE. RESPONDENT – plaintiff JUDGMENT [ 1 ] The Court: On appeal from a judgment of the Superior Court, District of Joliette (the Honourable Mr.

Justice Claude Champagne), rendered on June 9, 2011, which awarded custody of the child X to the respondent and determined the appellant's access rights to the child. [ 2 ] Until the date of the judgment under appeal, the parents had shared custody. It is not disputed that both the mother and the father have excellent parental capacity. Both are involved in the child's life and impart excellent values to him. [ 3 ] Their shared custody, first ordered in a judgment dated October 30, 2008, was working well. It enabled the child to flourish.

The dispute in this case arose because the child began attending school in September of 2011, while his father lives in City A and his mother in City B. [ 4 ] The Superior Court judge, of the opinion that he had little latitude in such circumstances, wrote: [ translation ] [8] Frankly, the Court renders this judgment based almost exclusively on the fact that Mr. Le. is the parent that encourages his son's relationship with the other parent as much as possible. Unfortunately, that is not the case with Ms. L.

The great importance of this factor was recently reiterated by the Court of Appeal. [9] Indeed, the [should read: defendant] [*] offers the plaintiff much less access than would be the case if the plaintiff had custody of the child. Moreover, she has difficulty acknowledging that Mr. Le.'s presence has been enriching for the child. [10] For Ms. L., the most important thing that the father has given X is that the child now knows who his father is. Anything else that Mr.

Le. does for the child is not really important, except perhaps the fact that he and X do some activities together that she does not do, such as fishing and ice fishing. [11] The Court therefore awards custody of the child to the plaintiff and grants the defendant extensive access rights. [ 5 ] The observations of the Superior Court judge are supported by the evidence. The remarks echo what was stated by the Superior Court judge who ordered shared custody in 2008: [ translation ] [25] Here, Ms.

L. must recognize that the situation is no longer the same as it has been since X was born and that she must now allow Mr. Le. to assume his role in their child's life. She does not acknowledge the true importance of the contact that X must have with his father. In her defence, however, it should be noted that Mr. Le. has not made any excessive effort to be present in his son's life. ...

[29] Based on a balanced analysis of the relevant factors, the Court is of the view that shared custody is best suited to the needs of X, who will benefit from the presence of his mother and father in equal measure. This is all the more important in this case, since it is high time that Mr. Le. take on a more significant parental role, as Ms. L. has testified, [ translation ] "Mr. Le. or someone else, it's all the same in X's life". [ 6 ] The rule is well-known.

There are only two circumstances in which an appellate court may intervene in such matters: where there has been an error of law affecting the outcome of the dispute, or where the judgment is vitiated by a palpable and overriding error. This rule is all the more applicable in custody matters because of the particular discretion enjoyed by the trial judge. [ 7 ] In other words, an appellate court may not substitute its own decision for that of the trial judge solely because he or she would not have come to the same conclusion.

The Court must show deference to the trial judge, who heard the witnesses and ruled on a dispute in which both parties advanced serious arguments and made reasonable submissions. [ 8 ] The appellant faults the Superior Court judge for setting aside the usual criteria for determining the custody of a five-year-old child. More particularly, she alleges, the judge erred by failing to recognize the primary role the mother has played since the birth of the child. [ 9 ] This criticism is without merit.

The judge listed these criteria in paragraph 7 of his judgment: [ translation ] " de facto custody, continuity, the conduct of the parties, their respective health, their financial resources, and so on". Both before and after that paragraph, the judge addressed each of these factors. Both parents have stable jobs and flexible schedules. They have both rebuilt their lives. Both have displayed exemplary conduct.

Although the shared custody ordered three years ago has been a success, continuity is not longer possible. [ 10 ] While it is true that the mother was the primary caregiver during the first years of the child's life, this has not been the case for the last three years. [ 11 ] In short, faced with two parents of equal capacity, the trial judge's task was a difficult one.

In light of factors that favoured both parents equally, he preferred, in the best interests of the child, to award custody to the one who displayed the greatest degree of openness toward the other. [ 12 ] The Court does not detect any error of law or of fact in this reasoning that would justify its intervention. [ 13 ] At the hearing, counsel agreed that it would be appropriate to reproduce the statement with respect to the exercise of parental authority included in the Superior Court judgment of October 20, 2008, if only as an aide-mémoire.

This request should be granted. [ 14 ] For these reasons, THE COURT : [ 15 ] ALLOWS the appeal without costs for the sole purpose of adding the following to the disposition of the judgment under appeal: [41] DECLARES that both parents shall exercise parental authority with respect to their minor child, X, and ORDERS them to consult each other regarding any important issue concerning the child, particularly with regard to his health and education. ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES R. FOURNIER, J.A.

Mtre Hélène Rioux and Mtre Ada Wittenberger, articling student Joli-Coeur Lacasse For the Appellant Mtre Stéphane Forest Ratelle, Ratelle & Associés For the respondent Date of hearing: November 10, 2011