2016 QCCA 708, 2016 QCCA 708

Droit de la famille — 16965 2016 QCCA 708 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-025695-156 (500-04-063580-147) MINUTES OF THE HEARING DATE: April 22, 2016 CORAM: THE HONOURABLE NICHOLAS KASIRER , J.A. DOMINIQUE BÉLANGER , J.A. MARIE-JOSÉE HOGUE , J.A. APPELLANT ATTORNEY F. H. ABSENT RESPONDENT ATTORNEY J. A. Mtre BERNARD VÉZINA (Absent) (Bernard Vézina Avocat inc.)

On appeal from a judgment rendered on September 30, 2015 by the Honourable Mr Justice Louis Crête of the Superior Court, District of Montreal DESCRIPTION : Family Law – Custody Clerk: Shirley Thomas Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing of April 21, 2016. By the Court: Judgment see page 3. Conclusion of the hearing. SHIRLEY THOMAS Clerk BY THE COURT JUDGMENT [ 1 ] F. H. appeals a judgment of the Superior Court, District of Montreal (the Honourable Louis Crête), rendered on September 30, 2015, which granted a motion for custody instituted by J.

A. in respect of X, daughter of the parties, dismissed Mr H.’s motion for custody and granted him access rights. [1] [ 2 ] The judge also annulled a previous order for child support based on Mr H.’s low income. He refused to issue an order allowing either of the parties to travel with the child out of the country without the permission of the other and rejected requests made by both parties to obtain, alone, a passport for the child. [ 3 ] The appellant has appeared without counsel. He has not provided a copy of the transcripts of the hearing at trial or of the minutes of that hearing.

He has also chosen not to include copies of the proceedings in first instance in the materials submitted in support of his appeal. Some documents accompany the written argument on appeal, although it is not clear which of these formed part of the evidence before the trial judge. From the judgment, it would appear that several witnesses were heard at trial, including the respondent’s physician, at least two social workers who spoke to the question of the respondent’s aptitude to exercise the right of custody, and the parties themselves.

The transcripts of the testimony of the various witnesses and certain exhibits produced by the parties, all of which were relevant to the judge’s decision to award custody to the respondent, are not included in the record on appeal.

*** [ 4 ] The appellant asks the Court to grant him the following conclusions: exclusive custody of X and shared custody of Y when the child is no longer breastfeeding; an order that the children be permitted to visit Mr H.’s family in China as soon as possible; several orders regarding how Ms A.’s care for Y should be supervised; and an order condemning Ms A. to pay costs at trial and on appeal. [ 5 ] In respect of his principal claim for exclusive custody of X, Mr H. alleges that Ms A. is not mentally fit to exercise custody, even with medication.

He makes various allegations that Ms A. has mistreated the children because of her inability to control her temper and says that she leads an unhealthy lifestyle that is incompatible with her responsibilities as a mother. He submits further that the trial judge relied improperly on findings made by the judges who heard matters at the interim stage. Furthermore, says Mr H., the physician treating Ms A. was not qualified to give the medical opinion that she is psychologically fit. [ 6 ] Mr H. adds that the judge was mistaken not to conclude that he has better parenting skills than Ms A..

He observes that he was a candidate in the 2015 federal elections, which would attest to his worthiness as a parent, and that he is prepared to move into a larger apartment to accommodate the needs of the children.

In sum, it is in the interest of X that he be awarded custody and of Y that joint custody be ordered. *** [ 7 ] The law regulating an appeal from a judgment awarding custody is well-settled. [ 8 ] A party who appeals a judgment of the Superior Court deciding a matter relating to child custody bears the heavy burden of showing an error of law that impugns the outcome of the dispute or an error of fact that is both palpable and overriding. [2] A trial judge’s conclusions as to whether a custody arrangement meets the child’s best interest, including the findings of fact as to whether a given parent has the requisite capacity to exercise custody, deserve deference on appeal. [3] [ 9 ] No error of law has been shown.

As the judge correctly noted, custody is a matter to be determined on the basis of the best interest of the child. [4] The evaluation of that interest raises principally questions of fact. [5] [ 10 ] Has the appellant shown a reviewable error in respect of the highly factual determination that it is in X’s best interest that the respondent be confided exclusive custody of the child? [ 11 ] The appellant’s decision not to reproduce transcripts of the testimony heard at trial and his failure to produce certain exhibits upon which the judge expressly relied are significant obstacles to proving the existence of such an error here. [6] The judge noted that Ms A. has suffered from “psychiatric problems” for some time but that she has been assiduous in taking her prescribed medication.

He quoted from Exhibit R-4, [7] a document prepared by her attending physician, Dr Houlachi, which stated that Ms A. is perfectly able, both physically and psychologically, to act as mother to the child, and that her condition has been stable since she became his patient on September 15, 2012, about one month after X’s date of birth.

The judge referred to the same physician’s testimony in which he said that her psychiatric condition was not such as to require hospitalization or to impede her functioning as a mother. [ 12 ] After reviewing the partial evidence and other materials submitted in the record on appeal, the Court concludes that the appellant has failed to satisfy his burden of showing a palpable and overriding error of fact in the judgment a quo .

The judge came to a reasoned decision that Ms A., notwithstanding her medical condition, was both fit and best placed to care for X, and that it was in X’s best interest that exclusive custody be granted to the mother rather than the father at the time the judgment was rendered. The tenor of the judgment makes clear that the judge understood that Ms A. suffered from a mental health problem.

The whole of the evidence, however, including the testimony from her physician and the social workers familiar with her situation, convinced him that Ms A. was receiving proper treatment and that she could acquit her responsibilities as mother of the child. [ 13 ] As to the judge’s refusal to authorize the appellant to travel alone with the child to China to visit his family, the appellant is not wrong to say, as

article 611 C.C.Q. confirms, that a parent cannot, without serious cause, interfere in the personal relations between the child and her paternal grandparents. However, the judge refused authorization to travel outside of the country without the consent of both parents on the basis of his view of the child’s best interest at the present time. No error has been shown in this regard. [ 14 ] Finally, Mr H. has asked for shared custody of the child Y, a request he did not make at trial. This request is rejected.

The appellant is not entitled to ask this Court, given its limited jurisdiction in appeal, to decide like matters that were not before the judge of first instance. [ 15 ] The Court notes that Mr H. sought to raise matters that have may arisen in the lives of the children since the judgment a quo . Without commenting on whether these considerations might have a bearing on future proceedings, the Court observes that they did not form part of the record before the trial judge and are not part of the record on appeal.

FOR THE FOREGOING REASONS , the Court: [ 16 ] DISMISSES the appeal, without legal costs given the character of the dispute. NICHOLAS KASIRER, J.A.

DOMINIQUE BÉLANGER, J.A. MARIE-JOSÉE HOGUE, J.A.