2020 QCCA 1139, 2020 QCCA 1139

Droit de la famille — 201310 2020 QCCA 1139 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028981-207 (500-12-334230-178) DATE: SEPTEMBER 1, 2020 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. S. P. APPELLANT – Plaintiff v. P. S.

RESPONDENT – Defendant and X IMPLEADED PARTY JUDGMENT [ 1 ] For reasons to be filed in the record of the Court under today’s date, THE COURT: [ 2 ] ALLOWS the appeal; [ 3 ] SETS ASIDE the judgment of the Superior Court rendered on June 30, 2020, by the Honourable Madam Justice Karen Kear- Jodoin; [ 4 ] DISMISSES the Father’s application with respect to the choice of school; [ 5 ] GRANTS the appellant’s application to enroll her son X at A School to begin his secondary school education during the 2020- 21 academic year and for the duration of his high school studies; [ 6 ] AUTHORIZES the appellant to enroll her son X at A School to begin his secondary education during the 2020-21 academic year and for the duration of his high school studies; [ 7 ] DECLARES that all costs related to X’s education at A School are special expenses, including those for tuition, uniforms and school supplies; [ 8 ] ORDERS respondent to pay the costs related to X’s education at A School including tuition, uniforms and school supplies pursuant to paragraph 44 of the parties’ document entitled “Consent to Judgment on Accessory Measures” signed on February 20, 2017, and ratified on July 4, 2017, by the Honourable Madam Justice Louisa A.

Arcand. [ 9 ] The whole without costs. ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A.

Mtre Emily Kissel Mtre Joannie Biron Ms Emmanuelle Gascon, articling student MILLER THOMSON For the appellant Mtre Isabelle Duval Mtre Gerald Stotland LAVERY DE BILLY For the respondent Mtre Marie Annik Walsh DUNTON RAINVILLE For the impleaded party Date of hearing: August 31, 2020 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028981-207 (500-12-334230-178) DATE: September 16, 2020 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. S. P. APPELLANT – Plaintiff v. P. S.

RESPONDENT – Defendant and X IMPLEADED PARTY REASONS FOR JUDGMENT RENDERED ON SEPTEMBER 1, 2020 I INTRODUCTION [1] S. P. and P. S. are the divorced parents of X and two other children, Y and Z. The sole issue the Court is called upon to decide is whether the trial judge, the Honourable Karen Kear, erred in authorizing Mr. S. to enroll X at B School instead of [A School], as X and Ms. P. would prefer. [2] X, who will be 12 years old this coming [...], attended elementary school at [C School], a French-language public school.

He has two brothers, one of whom, Y, was authorized by a judgment of the Superior Court rendered by Jacob, J. on June 7, 2018 to attend B School, as Mr. S. had requested. [1] [3] In X’s case, he and his parents attended open house visits at four private schools, two of which were [B School] and [A School]. [2] In light of their disagreement, both parents initiated proceedings in the Superior Court soliciting orders to have X attend their

preferred private school. A judgment was rendered appointing counsel, Mtre Marie Anik Walsh, to represent X in these proceedings. [4] X’s counsel urged the trial judge to accept his wishes and therefore to order that he be authorized to attend [A School]. She wrote in her report that his stated preference after his attendance at the various open houses was clearly in favour of [A School]. Indeed, X had a ranking of the four schools he visited taking account of the various features of each of them.

He ranked [A School] first and [B School] third, adding that [B School] “doesn’t come close”. [5] His counsel emphasized how much X was impressed with the ambience and facilities at [A School], and that he did not have the same level of comfort arising out of his visit to [B School]. The fact that his older brother was attending [B School], as were two of his close friends, did not sway him. Moreover, he viewed the Catholic religious ambience of [B School] to be quite secondary. He was of the view that he would be able to make new friends easily at [A School].

His counsel further emphasized in her final report that he “now insists that he does not want to attend [B School].” [6] In that latter report, X’s counsel reported that X would be disappointed if a second private school under consideration ([D School]) was selected, as it “did not at all come close to his first choice, [A School]”.

II THE JUDGMENT UNDER APPEAL [7] The trial judge expressed the view that while courts have applied or considered the stated preference of a 12 year-old child in the context of a disagreement between the parents as to the school that child should attend, such a preference is not binding. Rather, it is one of many other considerations to be assessed in determining what is in the child’s best interests.

She also downplayed the enthusiasm X expressed for [A School] following his visits since its “admission protocol is very enticing to a child”, stating further that his preference should not be the sole criteria in the decision to be made. [8] The trial judge concluded by offering additional justification for her opting in favour of [B School]: (1) the long-standing connection of the father’s family to [B School] that would ultimately provide him with a greater sense of belonging in both the short term and long term; (2) his attendance at [B School] would allow him to continue his studies of the Catholic faith, given that “(the) agreement as to accessory measures [3] provides…that the children should continue their Catholic studies”;

(3) Y having integrated well at [B School], his presence would provide a degree of familiarity not otherwise present at [A School]; (4) the reasoning expressed by the Jacob, J. in the case involving Y “was well founded and sound.” [4] III THE PARTIES’ SUBMISSIONS [9] The essential argument of the mother is that the trial judge failed to give sufficient weight to X’s clearly expressed opinion.

While recognizing that the trial judge was not bound by that opinion, she argues that if a mature 12-year old such as X expresses a rational opinion on the subject, that choice should be respected unless other factors suggest that such a clearly expressed choice is not in his interest. Had the trial judge not discounted X’s opinion, she would have opted in favour of his choice of [A School] instead of requiring him to attend a school with an overtly religious orientation that leaves him indifferent to it.

She also considers that the trial judge erred by refusing to meet X, which effectively denied him a right to be heard. [ 10 ] The father insists at the outset on the parties’ agreement during the marriage that their children would attend [B School] and the importance they attributed to their receiving a Catholic religiously oriented education.

Not only does such a turnabout by the mother constitute the exertion of pressure on X, he claims it generates parental alienation against him. [ 11 ] He argues that the trial judge properly exercised her discretion and considered the relevant factors with X’s best interests as her fundamental concern, all of which were reflected in the parties’ settlement agreement. Finally, the trial judge’s decision not to meet X does not constitute an error of law.

Instead it is a matter of her discretion that she exercised appropriately. [ 12 ] X’s counsel argued that the trial judge erred as a matter of law in her appreciation of the evidence and applicable principles derived from the case law. Instead, she minimized his clearly expressed and rational assessment of the choices he was provided, and further erred by giving undue consideration to the father’s family legacy of attending a Catholic denominational high school such as [B School].

IV ANALYSIS AND DISCUSSION [ 13 ] In a case such as this one in which the overriding issue is the determination of what constitutes the best interests of the child, a trial judge enjoys wide discretion. Absent the presence of a reversible error of law or a material error in the trial judge’s appreciation of the facts, an appellate court should not intervene. [ 14 ] The principal reason advanced to reverse the judgment of the Superior Court is that the trial judge ought to have given considerably more weight to the clearly expressed opinion of X.

That submission finds support in the reasons of Bich, J.A. on behalf of the Court in which she wrote that the wishes of a 12 or 13 year old child to attend a particular school should most often (subject to exceptions) be determinative. [5] In this case, there is the added feature that the school X wishes to attend is an entirely appropriate one for him, and that his reasons for arriving at that choice are rational in the circumstances. [ 15 ] In other cases involving choice of school issues where the desire of the child prevailed, factors such as paternal family ties and a feeling of belonging to a school, [6] better academic quality despite a demonstrated need for structure, [7] lack of socioeconomic diversity of the school reflected in its expensive tuition structure, [8] transportation issues [9] and the separation of twin brothers [10] have

prevailed. [ 16 ] On the other hand, courts have decided cases contrary to the child’s wishes where there were strong indications the child’s choice had been influenced by undue pressure, a conflict of loyalty between parents or parental alienation, [11] where the choice was made by prioritizing short term leisure over quality of life and academic success, [12] and where the child’s wishes were unrealistic in the particular circumstances. [13] [ 17 ] In this case, the trial judge drew a link between the father’s long standing connection to [B School] and concluded that at his young age, X was unable to appreciate both the short term and long term benefits of that relationship, despite X’s awareness of the familial relationship. [ 18 ] Despite the narrow scope of appellate review and the deference owed the exercise of a trial judge’s discretion when weighing the relevant factors, this Court has intervened when a trial judge gave insufficient weight to the wishes of a child such as X, or rejected them when they were without a sound basis. [14] [ 19 ] In our view, this is such a case. [ 20 ] The choice X articulated in favour of [A School] was rational and not influenced by irrelevant factors.

He had well justified reasons for ranking the four schools he visited in the manner he did. [ 21 ] Moreover, the trial judge misinterpreted the relevant provision in the divorce agreement settling the issues of corollary relief when she wrote at paragraph [33] that it provided “that the children shall continue their Catholic studies” at high school. In fact, the agreement provides instead for the parents’ rights “to continue the Children’s religious instruction (…) during his or her residential time with the Children”.

Such a clause is limited to the parents’ activity with X while he is resident with them, but is silent about the type of school X would attend at the high school level. [ 22 ] The trial judge also held that the attendance of X’s older brother Y at [B School] weighed in favour of his attendance there since Y had “integrated well” at [B School], ”would be a familiar face” for X, and their education and religious instruction would be similar. [ 23 ] This conclusion diminishes X’s assertion as recorded by Mtre Walsh in her report to the effect that he and Y had “rarely spent any time together in school” when they were at the same school, and that X also had friends who were attending [A School].

The trial judge further erred in lumping Y and X together for the purposes of their education and religious upbringing instead of focussing on X’s specific circumstances that showed no demonstrated need to attend the same school as Y. [15] [ 24 ] The respondent also submitted a variety of cases in which he argued it was recognized that there was a benefit in keeping brothers together in the same school. [16] The circumstances giving rise to these judgments are not necessarily similar to those of the instant appeal.

Indeed, each case must be decided on its own facts and its own particularities as it relates the school-age child and his or her parents. [ 25 ] For example , in the judgment of this Court in Droit de la famille – 151179 , [17] the question of choice of school was not the primary issue, but the potential consequence of a change of residence of one of the child’s parents who lived in different cities. [ 26 ] In this case it is hard to reconcile the father’s insistence on X attending [B School] for the reasons he has given when he voluntarily participated with X and his mother in exploratory visits to both [A School] and [B School] as well as two other schools.

He must have realized that doing so raised the possibility of X choosing a school other than [B School], the one he would have preferred him to attend. Absent compelling reasons, none of which have been suggested, it is only right that the father accept the consequences of that decision. [ 27 ] Finally, although in light of the conclusion at which the Court has arrived allowing the mother’s appeal, it is not necessary to deal with her argument that the trial judge erred in not having agreed to give X an opportunity to be heard viva voce or in camera .

In any event, the Court notes that X’s point of view was well represented and conveyed to the trial judge by his counsel.

V CONCLUSION FOR THESE REASONS, THE COURT ISSUED THE FOLLOWING ORDER ON SEPTEMBER 1, 2020: [ 28 ] ALLOWS the appeal; [ 29 ] SETS ASIDE the judgment of the Superior Court rendered on June 30, 2020, by the Honourable Madam Justice Karen Kear- Jodoin; [ 30 ] DISMISSES the Father’s application with respect to the choice of school; [ 31 ] GRANTS the appellant’s application to enroll her son X at A School to begin his secondary school education during the 2020- 21 academic year and for the duration of his high school studies; [ 32 ] AUTHORIZES the appellant to enroll her son X at A School to begin his secondary education during the 2020-21 academic year and for the duration of his high school studies; [ 33 ] DECLARES that all costs related to X’s education at A School are special expenses, including those for tuition, uniforms and school supplies;

[ 34 ] ORDERS respondent to pay the costs related to X’s education at A School including tuition, uniforms and school supplies pursuant to paragraph 44 of the parties’ document entitled “Consent to Judgment on Accessory Measures” signed on February 20, 2017, and ratified on July 4, 2017, by the Honourable Madam Justice Louisa A. Arcand. [ 35 ] The whole without costs. ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Joanne Biron Mtre Emily Kissel MILLER THOMSON For the appellant Mtre Gerald Stotland Mtre Isabelle Duval LAVERY DE BILLY For the respondent Mtre Marie Annik Walsh DUNTON RAINVILLE For the impleaded party Date of hearing: August 31, 2020