2011 QCCA 2148, 2011 QCCA 2148

Unofficial English Translation Droit de la famille — 113602 2011 QCCA 2148 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021328-117 (500-04-030175-021) DATE: November 9, 2011 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) C. S. APPELLANT – Defendant v. F. G. RESPONDENT – Plaintiff JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on December 14, 2010, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Paul Mayer), which upheld the award of exclusive custody of the child to the respondent, modified the access rights, modified the amount of child support, ordered the payment of interim costs and ordered that, for two years, any application concerning custody of the child or access rights would be subject to the prior authorization of the Chief Justice of the Superior Court. [ 2 ] This legal saga has been ongoing since the birth of the child X in 2002.

Over the last nine years, a dozen judges have heard disputes concerning the child on subjects such as custody, access, child support, passport, contempt of court, etc. [ 3 ] Custody of the child has consistently been awarded to the mother. [ 4 ] In 2005, Clément Gascon J. specifically concluded that shared custody was impossible in light of the significant conflict between the parents, the serious communication issues and the father's poor conduct.

He awarded custody to the mother. [ 5 ] It appears that this judgment did nothing to calm the parties' feelings, and communication subsequently deteriorated even further. [ 6 ] The issues in appeal are: (

a) custody of the child; (

b) child support; (

c) interim costs; (

d) the prior authorization of the Chief Justice to bring new proceedings concerning the child.

Custody of the child [ 7 ] The appellant argues that the judge rendered a punitive judgment against him and confused his poor conduct during the hearing with his ability to parent, thereby setting aside the opinion of the expert Barbara Mitchell without reason. [ 8 ] He further argues that shared custody might lessen the conflict between himself and the respondent. [ 9 ] The trial judge clearly explained, at paragraphs 39 and following of his judgement, why he found that the expert report was inadequate in parts and why he could not accept the recommendation that custody be shared: the expert Mitchell seemed to be misinformed with respect to the relationship between the parents and did not really assess the appellant's behaviour.

[ 10 ] After identifying and then considering the criteria to establish whether shared custody could benefit the child, the judge concluded that even if both parties had good parenting abilities, were sufficiently available, and the distance between their respective homes did not constitute an issue, the father's poor conduct, the parties' inability to compromise or to communicate and their fights prevented shared custody. [ 11 ] We are of the opinion that the judge took into account and considered the relevant criteria while analyzing the possibility of establishing shared custody and did not commit any palpable and overriding error in his assessment of the facts. [ 12 ] He did not punish the appellant.

Rather, he took into consideration his conduct when evaluating the best interests of the child. [ 13 ] Finally, the evidence does not justify the idea of an alternating week-by-week shared custody for the summer holidays; it would clearly be more appropriate for the parents to have three consecutive weeks in which to do activities with the child.

Support [ 14 ] According to the appellant, the judge erred in establishing both his income and the respondent's to determine the amount of support. [ 15 ] With respect to the respondent's income, he feels that the judge should not have rejected the evidence of income that was gathered through surveillance. [ 16 ] The appellant is wrong.

Even though the judge accepted that the evidence was obtained under conditions that violated the respondent's right to privacy, he added that the evidence did not in fact show that the respondent's lifestyle was superior to what her employers' reports and income tax reports would indicate. [ 17 ] He did, however, add $2,500 to her annual income to take into account her tips for the years 2008 through 2010. [ 18 ] We fail to see any error concerning this issue. [ 19 ] With respect to the appellant's income, the trial judge found that his declared income was incomplete: the appellant "has not been transparent about his revenues.

He provides little or no proof about his income". [ 20 ] The judge deemed that the evidence indicated that the appellant's income should be increased to take into account the apartment provided by his parents, who also pay the fees of his attorneys, private investigators, and so on. The judge also took into account the appellant's lifestyle. He travels twice a year, is planning a five-week trip to Greece, and is debt-free, etc., even though he earns a declared annual income of only $15,600. [ 21 ] The judge used the discretion conferred upon him by

article 825.12 C.C.Q. properly, and we do not find a palpable and overriding error therein.

Interim costs [ 22 ] Paragraphs 107 to 126 of the judgment indicate that before awarding the respondent interim costs in the amount of $10,316, the judge analyzed the evidence according to the applicable criteria: the nature and significance of the dispute, the protection of the child's rights, the respective conduct of the parties, and the means of the parties. [ 23 ] Once again, the judge exercised the discretion conferred upon him by law, and there is nothing indicating that he committed a palpable and overriding error in his assessment of the evidence.

Prior authorization of the Chief Justice [ 24 ] The judge subjected both parties, for two years, to the requirement of obtaining the Chief Justice of the Superior Court's authorization prior to bringing any proceedings concerning the child's custody or access rights. [ 25 ] Even if the trial judge does not specifically refer to the provisions of

article 54.5 C.C.P. , he stated in paragraph 129 of his judgment that there was "abuse of the judicial process" and described the circumstances that led him to find that the abuse was the result of the querulousness of one or the other of the parties, which justified issuing the order. FOR THESE REASONS, THE COURT: [ 26 ] DISMISSES the appeal, without costs, given the nature of the dispute; FRANÇOIS DOYON, J.A. PAUL VÉZINA, J.A. JACQUES VIENS, J.A. (AD HOC) M. C. S. For himself

Mtre Amanda Assaf Allard & Associates For the respondent Date of hearing: October 27, 2011