2017 QCCA 1059, 2017 QCCA 1059

Unofficial English Translation Droit de la famille — 171589 2017 QCCA 1059 COURT OF APPEAL CANADA PROVINCE OF QUEBEC QUEBEC REGISTRY No.: 200-09-009472-173 (200-12-085973-155) DATE: July 7, 2017 CORAM: THE HONOURABLE JEAN BOUCHARD, J.A. DOMINIQUE BÉLANGER, J.A. CLAUDE C. GAGNON, J.A. A. A. APPELLANT/INCIDENTAL RESPONDENT – Defendant v. H. K.

RESPONDENT/INCIDENTAL APPELLANT – Plaintiff JUDGMENT [ 1 ] The parties are appealing from a judgment of divorce rendered by the Superior Court, District of Quebec (the Honourable Daniel Dumais) on February 13, 2017, containing, in particular, the following conclusions: [TRANSLATION] [105] AWARDS custody of the children X and Y to the defendant during the school year, as stated in paragraph 80(i); [106] AWARDS custody of the children X and Y to the applicant during the summer holidays; [107] GRANTS the following access rights: i.

During the school year, the father will have access to the children five days each month, including the day of travel or exchange and the day of return. Those access rights will be exercised consecutively in

order to minimize travel and should, as far as possible, take place during school holidays. If there is school the day of travel or exchange, the transfer will take place at the end of the day. The return to the mother’s home must not be later than 7:00 p.m.; ii. The father’s access will be exercised in City A, unless he prefers to go to Toronto. On the other hand, access in November and February will take place in Toronto, so that it is the father who must travel; iii. For December and the Christmas and New Year’s holidays, the father’s access will be ten (10) consecutive days during school vacation.

The father will determine and provide the dates at least sixty (60) days in advance; iv. During the month of spring break (normally March), the father’s monthly access will be seven (7) consecutive days, that is, from the Saturday before spring break until the following Friday; v. During summer vacation, the mother will have access to the children for a period of ten (10) consecutive days between July 20 and August 10 of each year. The mother’s summer access may be exercised in Toronto, and the dates must be provided at least sixty (60) days in advance; vi.

Phone contact (or Skype or FaceTime) will be Tuesdays and Thursdays from 5:30 p.m. to 6:15 p.m. and Sundays from 10:00 a.m. to 10:45 a.m., as well as on special occasions agreed upon between the parties; vii.

Muslim holidays will be alternated, without adding to the number of days of access and without modifying, except upon consent, the above-mentioned terms and conditions; [108] DECLARES that the parent who exercises an access right shall be responsible for organization and travel arrangements, including the expenses for the children and himself or herself; [...] [110] ORDERS that the children attend the A school in Toronto as long as the maternal grandfather agrees to pay the costs; [...] [116] ORDERS the applicant to pay the defendant child support of $500 a month, payable the 15th day of each month as of this decision, the said support being indexed annually; [Reference omitted] * * * [ 2 ] The appellant/incidental respondent contends that the judge erred by not dividing the access time spent with the children during the summer and the Christmas holidays equally between both parents, and by not fixing the support payable by the respondent/incidental appellant for his minor children at $1,283.28, in accordance with the Federal Child Support Guidelines (SOR/97-175) (Federal Guidelines). [ 3 ] The respondent/incidental appellant argues that the judge’s error consisted rather in having entrusted custody of the children to him during the school year and to the appellant/incidental respondent during the summer holidays, stating that, in addition, he is agreeable to her obtaining access similar to what the impugned judgment granted him. * * *

[ 4 ] For various reasons that are unnecessary to repeat, the parties had been in a difficult relationship for some time when, on March 7, 2015, the appellant/incidental respondent decided to leave the family residence with the children, then 5 and 2½ years old, to join her mother and sister in Toronto, and ultimately to settle there permanently. [ 5 ] The respondent/incidental appellant, who did not accept being isolated from his family in that way, still held on to the hope of convincing his wife to change her mind and to return to continue their life together in City A with their children. [ 6 ] The eldest child was enrolled at the A school in Toronto and child custody proceedings were instituted in Ontario, in which the appellant/incidental respondent accused her husband of verbal, physical and sexual abuse, dashing his hopes, crystallizing the conflict and motivating him, in November 2015, to introduce an application for divorce in City A. [ 7 ] At the time of the judgment under appeal, the children had been living in the Toronto area for approximately two years and were well integrated into their new family, social and school environments, and were developing perfectly normally. [ 8 ] Financially, the appellant/incidental respondent, whose father is both wealthy and very generous, does not work but wants for nothing.

In fact, the maternal grandfather, who lives in Dubai and was very successful working in the oil sector, puts at the disposition of his daughter and grandchildren a furnished and paid-off ($600,000) urban residence for which he assumes all purchase and maintenance costs and he also provides a recent-model vehicle – in addition to paying her a $3,000 monthly allowance as well as the cost of sending the children to private schools, attorney’s fees, and travel expenses for his daughter and grandchildren.

In sum, as he stated himself at the hearing: [TRANSLATION] “he pays for everything...”. [ 9 ] The respondent/incidental appellant lives in a rented apartment, a 4 ½, in City A, drives a 2005 vehicle, and is permanently employed as an information security advisor at [Company A], earning $93,800 in 2017. [ 10 ] The respondent/incidental appellant’s access exercised in City A each year requires, given the brief duration and the ages of the children, a dozen plane flights between Toronto and City A.

The parties may, according to the judgment under appeal, choose among three options for the children’s travel: (1) the respondent/incidental appellant may go to Toronto and bring the children back to City A, then return with them to Toronto; or (2) the appellant/incidental respondent may bring them to City A and then return right back Toronto by plane, coming back to get them four days later to return to her home; or (3) each parent may accompany the children for an initial or a return flight. [ 11 ] Whatever the method the parties prefer, the exercise of each access thus requires the purchase of two adult round-trip plane tickets and one round-trip ticket for each of the two children, the cost of which is, under the judgment, to be paid by the respondent/incidental appellant. [ 12 ] The two annual access periods that the father exercises in Toronto involve, in addition to travel costs, expenses to stay in and get around Toronto. * * * [ 13 ] The appeals essentially raise three questions: (

A) Are the terms and conditions of child custody and access of the non-custodial parent in the interests of the children? (

B) Did the judge err in setting non-retroactive support at $500 a month for the children?

(

C) Did the judge err in his handling of the Children’s Aid Society (C.A.S.) file? * * * (

A) Are the terms and conditions of child custody and access of the non-custodial parent in the interests of the children? [14] Decisions in matters of child custody and support must be shown significant deference by a court of appeal: [TRANSLATION] As the Supreme Court of Canada emphasized in Van de Perre v. Edwards, in family matters regarding custody, like those concerningsupport, it is important not to lose sight of the narrow scope of appellate review. The jurisprudence thus acknowledges that the judgewho heard the parties is best-situated to make discretionary decisions regarding child support or custody orders. Unless a significanterror in the

interpretation of the evidence or an error in law is found, the Court does not intervene, even if the judge has set asiderecommendations by an expert: [TRANSLATION] In other words, absent an error of law or a palpable and overriding error by the family judge, an appellate court must show greatdeference because the decisions in matters of sharing parental responsibilities are the result of a case-by-case consideration of thesituation of the children and their parents (assessment of the evidence) and of the determination of their best interests (section 16 DivorceAct, RSC (1985), c 3 (2nd suppl), and art 33 of the Civil Code of Québec) for and on behalf of their parents, who, notwithstanding theirlove for their children, are incapable for the time being of agreeing on the sharing.

Such a decision is inherently discretionary and thejudge is not bound by the suggestions or recommendations of experts, as stated in art 423(2) CCP, and may set them aside in a reasoneddecision, as per the case law: J.P. v. M.Pe., 2006 QCCA 1551; J.M.R. v. S.M., 2006 QCCA 140 , [2006] RDF 27 (CA); S.M. v.A.G., 2005 QCCA 529, JE 2005-1014; T.P.G. v. D.M., (QC CA), [2004] RDF 272 (CA); Droit de la famille – 3456,[1999] RDF 652 (CA).[1] [15] Determining the custodial parent is essentially based on the interests of the child and the respect of his or her rights (art. 33C.C.Q.).

The child’s interests are defined according to the child’s means, needs and circumstances (s. 16(8) of the Divorce Act, R.S.C.1985, c. 3). [16] Given both parties’ parental capacities were equally adequate, the judge would not have hesitated to grant shared custody of thechildren were it not for the distance separating the parents. As that was impossible, the judge disregarded the wrongs that the parentsaccused each other of and the criticisms each leveled against the other, concentrating his reflection and analysis solely on the interests ofthe two minor children.

He noted that since March 2015, they had been living in Ontario where they began school, integrated into a newsocial network and were developing a family, social and school routine that suited them well.

The judge believed that they weredeveloping normally in the new environment and concluded, as recommended by the appointed expert, that it was not appropriate touproot them again, but rather to maintain the status quo by entrusting custody to the appellant/incidental respondent during the schoolyear, as she had been, until that point, the most significant figure in the children’s lives. [17] However, given the need to reconcile the maintenance of stability and maximization of contact with the respondent/incidentalappellant, as well as the children’s access to Francophone culture, the judge entrusted the father with: (1) custody of the children duringsummer vacation (except for 10 days) and (2) access during the school year, which, it is true, goes beyond what was proposed by expertDeschambault. [18] However, in light of, among other things, a child’s age, his or her stability may require both that the child not be separated fromthe custodial parent for too long and also that he or she be able to enjoy a vacation period of a reasonable duration with each parent. [19] And yet the access granted the father by the judge is not properly adapted to those requirements; consequently, it is appropriate toreorganize access during the nine weeks of summer vacation so that the children (1) are not separated from their mother for more thanthree weeks (21 consecutive days), and (2) are able to spend two weeks (14 consecutive days) with her.

Such reworking of the terms andconditions for access during the summer (as of summer of 2018) is, however, not written in stone and may be subject to re-examinationwhen the children are old enough. [20] However, for the current summer, the parties have already made the necessary expenditures to exercise access as provided for inthe judgment under appeal, and it is appropriate to take note of that fact such that the children will be with their father from June 30 to

July 19 and from July 31 to September 3. [ 21 ] As of 2018, the children’s access to their father during the summer vacation will consist of two three-week blocks, separated by a period of at least two weeks, it being understood that it is preferable for the children to be with their mother in the days preceding their return to school. [ 22 ] In addition, the judge established alternating custody that involved not insignificant legal irritants. To address those inconveniences, it is appropriate to entrust custody of the children to their mother and to grant the father extended access to the children. (

B) Did the judge err in determining non-retroactive support of $500 a month for the children? [ 23 ] Although the appellant/incidental respondent is a doctoral student and does not work, as a result of the maternal grandfather’s great generosity, the lifestyle she maintains for herself and the children is higher than that of the respondent/incidental appellant, despite the fact that his employment provides him with a very suitable income. [ 24 ] There is no doubt in this case that the support obligation must be calculated according to the federal guidelines.

It is also just as obvious that the respondent/incidental appellant’s exercise of access to his children results in his incurring expenses that can be characterized as excessive because of the distance separating the parents. [ 25 ] The appellant/incidental respondent is right to state that basic monthly support should be $1,283.28, given their respective places of residence and the respondent/incidental appellant’s salary.

But she is wrong to criticize the judge for not applying the correct methodology to calculate the impact of those excessive expenses and erroneously deducting the sum of $783.28 for that purpose, fixing the monthly support payable by the father at $500. [ 26 ] In that regard, it is sufficient to recall that the Court’s use of the comparison of household standards of living test set out in

section 10 of the Federal Guidelines is optional and that, in this case, the evidence is much too vague to apply it effectively and rigorously.

It is also noteworthy that the appellant/incidental respondent agreed that costs for the children’s travel would be deducted from the support obligation. [ 27 ] As for the non-retroactivity of the support obligation, it is important to specify that, in principle, a support payment is retroactive to the date the application is served, unless the judge orders otherwise in a decision issued with reasons. [2] [ 28 ] In that regard, the judge found that retroactivity was not appropriate because the respondent/incidental appellant had (1) paid monthly support of $500 since the March 23, 2016 safeguard order, (2) spent $30,000 since the March 2015 separation to have access to the children, and (3) the appellant/incidental respondent was able to have access to the parties’ joint account after the breakup. [ 29 ] However, it appears that no support was paid for the children between September 2016 and January 2017, contrary to what the judge presumed, thus it is appropriate to rectify that situation. (

C) Did the judge err in his handling of the Children’s Aid Society file? [ 30 ] Further to a report of abuse occurring in City A made by a Toronto physician, the appellant/incidental respondent and the children were taken on by the Ontario Children’s Aid Society shortly after they arrived in Toronto. The C.A.S. followed their progress between April 2015 and May 2016. The various caseworkers kept a report in the file of their conversations with the parents, the children and the professionals who were consulted.

At the request of the respondent/incidental appellant, at trial, the judge ordered that the report subsequently be sent to him and then be made available to the parties. This, however, did not occur before the end of the hearing. [ 31 ] In fact, it appears that it was only once the matter was taken under advisement that, unbeknownst to the parties, the judge received the file thus constituted, which the judgment under appeal does not discuss at all.

[ 32 ] The respondent/incidental appellant contends that he was thus deprived of his right to be heard in connection with that file. [ 33 ] It is, however, appropriate to recall (1) that Caroline Lufty, the C.A.S. caseworker who primarily supported the appellant/incidental respondent and the children during the period in question, was called to testify at trial; (2) that the respondent/incidental appellant was able to question her; (3) that he also had the opportunity to have access to the document a few months before the hearing, but chose not to do so and instead applied to the judge for access at the last minute; and (4) that the “[TRANSLATION] unpublished, occasional and simultaneous” clarifications to which he contends he is entitled essentially include elements that were otherwise brought to the judge’s attention during the five days of trial and were taken into account. [ 34 ] Although the report explains that, because of a difficult legal situation, the appellant/incidental respondent had sporadic panic and anxiety attacks, the C.A.S. report and Ms.

Lufty’s testimony clearly show that the caseworkers had no doubt as to her capacity to see to the needs of her children and to protect them and, consequently, there was no reason to continue the follow-up after April 2016.

It should be noted that this observation was confirmed by the social worker assigned by the judge to assess the parties’ parental capacity. [ 35 ] The respondent/incidental appellant has not demonstrated, in that regard, that his taking cognizance of the report only after the hearing may have had an overriding effect on the outcome of the dispute, or that the judge’s failure to inform the parties when he received the document was, in the absence evidence of an actual and concrete prejudice, a reviewable error. [ 36 ] Last, the appellant/incidental respondent is seeking, in accordance with

article 380 of the C.C.P. , authorization to file indispensable new evidence: the children’s recent report cards. Although relevant and new, that evidence is not indispensable to the resolution of the issues in dispute because the existing file contains enough probative evidence of the children’s adequate development at the school they attend.

FOR THESE REASONS, THE COURT: [ 37 ] DISMISSES the motion for leave to file indispensable new evidence; [ 38 ] ALLOWS the appeal in part for the purpose of striking paragraphs [105], [106], [107] and [116] of the trial judgment and replacing them with the following: [TRANSLATION] [105] AWARDS custody of the children X and Y to the defendant (appellant/incidental respondent); [106] [...] [107] GRANTS the applicant (respondent/incidental appellant) extended access rights according to the following terms and conditions: (

i) During the school year, five days each month, including the day of travel or of the exchange and the day they return. Those access rights will be exercised consecutively in order to minimize travel and should, as far as possible, take place during school holidays. If there is school the day of travel or of the exchange, the transfer will take place at the end of the day. The return to the defendant’s home (appellant/incidental respondent) must not be later than 7:00 p.m.; (ii) The father’s access will be exercised in City A, unless he prefers to go to Toronto.

On the other hand, access in November and February will take place in Toronto, so that it is the father who must travel; (iii) For December and the Christmas and New Year’s holidays, the father’s access will be ten consecutive days during school vacation. The father will determine and provide the dates at least 60 days in advance;

(iv) During the month of spring break (normally March), the father’s monthly access will be seven consecutive days, that is, from the Saturday before spring break until the following Friday; (

v) Between the first Sunday following the end of classes and the last Sunday before Labour Day, 2 periods of 3 consecutive weeks (21 consecutive days), separated by at least 2 consecutive weeks (14 days), with the defendant (appellant/incidental respondent) being informed of the chosen dates at least 60 days before access is to begin; (vi) [...] (vii) Phone contact (or Skype or FaceTime) will be Tuesdays and Thursdays from 5:30 p.m. to 6:15 p.m. and Sundays from 10:00 a.m. to 10:45 a.m., as well as on special occasions agreed upon between the parties; (viii) Muslim holidays will be alternated, without adding to the number of days of access and without modifying the above-mentioned terms and conditions, except upon consent; [...] [116] ORDERS the applicant (respondent/incidental appellant) to pay the defendant (appellant/incidental respondent) child support of $500 a month, payable the 15th of each month as of September 15, 2016, and indexed annually; [ 39 ] DISMISSES the incidental appeal; [ 40 ] Without legal costs, given the nature of the appeal. (

s) JEAN BOUCHARD, J.A. (

s) DOMINIQUE BÉLANGER, J.A. (

s) CLAUDE C. GAGNON, J.A. Mtre. Maryse Carré and Mtre. Gabrielle Martineau-Desautels Carré & Webster For the appellant–incidental respondent Mtre. Susan Simoneau

For the respondent–incidental appellant Date of Hearing: July 5, 2017 [1] Droit de la famille – 123479 , 2012 QCCA 2201 at para. 10 . See also: Van de Perre v. Edwards , [2001] 2 S.C.R. 1014 , 2001 SCC 60 . The Court’s significant deference to judgments ruling on child custody was recently reiterated in Droit de la famille – 1747 , 2017 QCCA 19 at para. 6 . [2] Droit de la famille – 2083 – CanLll 6236 QCCA.