2024 QCCS 68, 2024 QCCS 68

Droit de la famille — 249 2024 QCCS 68 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU N o : 550-04-022582-221 DATE : January 5, 2024 ______________________________________________________________________ BY THE HONOURABLE RENÉE THÉRIAULT, J.C.S. ______________________________________________________________________ J. M. Applicant v. A. MU. Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________

OVERVIEW [ 1 ] The Applicant (the father) and the Defendant (the mother) have been separated since 2018. They are the parents of three school-aged children: a 10-year girl (child X), an eight-year old girl (child

Y) and a five-year old boy (child Z). [ 2 ] The father seeks exclusive parenting time over the children during school days and shared parenting time on non-school days, essentially weekends and the summer school break. The mother objects to the father’s application and seeks equal custody at all times. [ 3 ] The father lives in the province of Québec and the mother lives in the province of Ontario. The children attend school in the district of the father’s residence located approximately one hour away from the mother’s residence.

The children’s school is a source of dispute between the parents as the mother would prefer that the children attend school in Ontario. The circumstances have resulted in significant school absences when the children are with the mother who has repeatedly failed to either take them to school, pick them up from school, or otherwise ensure that they be at school on time.

Hence the father’s application seeking exclusive parenting time over the children during their school days. [ 4 ] A court-ordered psychological assessment has been conducted in these proceedings to assist the Court in understanding and defining the appropriate custody arrangements for the children. Further to this assessment, three main recommendations have been drawn by the expert. Firstly, the expert recommends that the children remain at their current school in the district of the father’s residence.

Secondly, in terms of parenting time, the expert recommends that the children be with the father on most school days and every third weekend, and that they be with the mother on pedagogical days and all remaining weekends. Thirdly, the expert recommends that during the summer months, the parents have equal custody of the children. [ 5 ] For the following reasons, the Court is of the view that the expert’s main recommendations should be followed, albeit with certain caveats. Specifically, the Court concludes that the children shall continue to attend school in the district of the father’s residence.

The Court further concludes that the father shall be granted parenting time over the children on all school days without exception and every third weekend, and that the mother shall be granted parenting time over the children on all pedagogical days and all remaining weekends during the school year. The Court also concludes that the parents shall have equal custody on an alternate weekly basis during the summer school break. [ 6 ] Accordingly, on a yearly basis, the father shall have 2/3 parenting time with the children and the mother shall have 1/3 parenting time with them.

The Court further recommends that, going forward, the mother pursue a program to enhance her parental abilities, and that the father pursue a program to address his anger management issues. In addition, the Court recommends that the parents participate in co-parenting sessions. Finally, the Court recommends that the father hire a professional to ensure that there is no mold in his residence that could be detrimental to the children's health. CONTEXT [ 7 ] The parents met 10 years ago in a bar in Town A and the mother became pregnant with their first child soon thereafter.

At the time, the father had custody of another baby who remains in his care to this day. They quickly had two other children and separated in November 2018 following a physical altercation which occurred six months after the birth of their third child. [ 8 ] Thereafter, the mother left the family residence with the children and temporarily stayed in a women’s shelter . The mother initially had custody of the children and lived with them in Ontario. The mother subsequently lost custody of the children following her arrest for child endangerment.

With the involvement of the Children's Aid Society, the children were temporarily placed in foster care until November 2019, at which point the father was granted custody of the children. [ 9 ] In August 2020, the parents entered into a shared custody agreement ratified by the Superior Court of Ontario.

The agreement was short-lived, in part due to the children’s repeated school absences as well as the parents’ inability to constructively communicate regarding their agreed-upon custody arrangements, particularly in connection with the children’s school attendance while in the care of the mother. [ 10 ] The parents’ custody challenges have thus persisted, resulting in the present proceedings before the Superior Court of Québec. [ 11 ] A number of safeguard orders have been issued in the course of the present proceedings.

Significantly, on March 2, 2023, Justice Carole Therrien ruled as follows: [3] According to the father’s statement and the school record, the mother failed to bring the children to school on many occasions since September 22. She also refused to let the children leave her house with the father at the beginning of his parental time. [4] November 7 th , 22, Mme refused to open the door to Mr. who broke it to enter Madame’s residence. The police were involved and noticed the broken door. Mr. was eventually accused of criminal charges and is currently bounded by conditions issued by the Ontario

criminal court. [5] Between this event and the accusations, he introduced a motion in the Québec Superior Court, essentially for him to be granted sole custody. […] [6] On January 6 th , the court ordered that the children attend school ([School A]), that the parental time be shared in a way that the mother has to bring them to school every Monday, Tuesday and Wednesday mornings. [7] Since then, the children have missed significant school days, when under their mother’s care.

She explains having many issued with her car or the children’s health. [8] The court notices madam’s current incapacity to organize her activities to assure the children’s educational needs. They are currently in a position that they might miss very important development steps that can’t wait for the assessment’s conclusion to be taken care of. [9] The children will be with their father during school days and with their mother for the rest of the time.

This solution is not optimal, but on a short-term basis, it fulfills a basic and important need, education. [ 12 ] The court-ordered psychological assessment was issued on June 15, 2023, and the recommendations formulated therein were provisionally implemented pending trial. The trial proceeded six months later over a two-day period on December 13-14, 2023. [ 13 ] During the trial, the father was represented by counsel whereas the mother appeared without counsel.

She participated in the trial both in person to provide her testimony as well as virtually and over the phone during the father’s testimony and the expert evidence, including for purposes of cross-examination. The mother’s attendance was spotty by the time the trial reached the point of final representations, on account of what the mother described as cell phone issues. In the circumstances, at the close of the trial, the Court wrote to the mother as follows: We write further to the message below and confirm that representations on the part of the father were made earlier today as instructed by the Court.

Given that you failed to reconnect or otherwise present yourself in person for purposes of making your final representations, the Court will accept written representations on your part regarding the father’s application by no later than Friday, December 22, 2023.

Please also note that the Court has undertaken to render its final judgment in this matter on January 5, 2024. [ 14 ] On December 21, 2023, the mother provided what she refers to as her written testimony, to which the father responded on January 3, 2024 via counsel to the effect that “le demandeur n’a pas de réplique à soumettre, outre le fait que le contenu des plaidoiries ci-bas n’est pas admissible puisqu’il est plutôt de la nature d’un témoignage et qu’il porte presqu’entièrement sur des faits qui n’ont pas été présentés à l’audience ”.

Be that as it may, the mother’s representations conclude as follows: “ I ask that I keep shared custody access of my children, and I promise to bring them to school each and every week day granted, such as Fridays and Mondays. They are my top priority and I will do anything for them. Transporting them to and from school is not going to be an issue, I can assure you.

I am sorry for this situation and I hope to make it right for the sake of my children.” [ 15 ] Finally, it is noteworthy that during the trial, along with the parents’ testimony and the paternal grand-mother’s testimony, the Court also heard testimony on the part of the expert who conducted the court-ordered psychosocial assessment. A

summary of this evidence is set forth next, with emphasis on the expert evidence which is corroborated by the parents’ testimony. EVIDENCE The Expert Evidence [ 16 ] As part of her report, the expert specifies that she met with both the father and the mother at their respective households, including in the presence of the children, whom she also met individually. In addition, the expert consulted documents on the part of the Children’s Aid Society, and she contacted the father’s probation officer as well as the mother’s partner. Furthermore, she was provided with a letter on the part of Dr.

Julia Kurchaski regarding the mother’s psychiatric condition. [ 17 ] The entire assessment process undertaken by the expert, which was conducted 18 months ago, stretched over a six-week period and resulted in a comprehensive 16-page report detailing the expert’s observations.

The Court considers it important to reproduce these observations with the required emphasis given their relevance to the present dispute. [ 18 ] Significantly, the expert notes that all three children are active, healthy and well-loved by both parents (emphasis added): 95) Since the separation, the custody arrangement between the parents has changed several times. However, since February 2023, the children have been at their father's home from Monday to Friday and spend every weekend with their mother since Ms. Mu. failed to bring the children to school for 2 months.

Since this new arrangement, the children have been attending school regularly. Mr. M. would like to keep this current arrangement and gain a few weekends since he does not believe Ms. Mu. is capable of bringing the children to school regularly. Ms. Mu. would like 50% custody and expresses that she will do anything to keep her children happy. 96) [The children] are developing well and have no particular health issues. They are generally happy, communicate well and have active social lives. They are three well-rounded children who enjoy playing and spending time with their parents.

They are all three loved by their parents and very well taken care of. We noticed that the children are very happy and comfortable in both homes during our observation. [ 19 ] In terms of the parents’ respective strengths and weaknesses, the expert makes a number of additional observations summarized as follows (emphasis added): 98) We are aware of the parent’s love for their children and acknowledge that they both have distinctive strengths. Mr. M. demonstrates a great interest in his children's educational development. He prioritizes routine and quality time with his children. Mrs. Mu. has a very

loving and caring approach. She prioritises creativity and playtime. 99) During our assessment, we noticed that both parties describe a different history in regards to their separation and life together. Ms. Mu. expressed that she suspected infidelity, as did Mr. M. in regards to Ms. Mu.. There has been physical altercations, DPJ involvement as well as police investigations in regards to both Mr. M. and Ms. Mu.. 100) There were concerns brought up in regards to Ms. Mu.’s mental health during this evaluation. We noticed that Ms.

Mu. did in fact go through a hard time following the separation and was charged for child endangerment. However, this dates from 3 years ago. Since then, there has been no concerns in regards to Ms. Mu. ability to parent other than failing to provide adequate education and withholding the children from their father. Ms. Mu. also has follow-ups with a psychiatrist that confirms that Ms. Mu. is in fact mentally stable and is continuing to improve. 101) As for Mr. M.'s most recent charge, according to his probation officer, Mr.

M. had done the right steps as in notifying the police and DPJ that the mother was withholding the children and refusing to send them to school. Even though Mr. M. should have not broken into the mother's home, we believe that Mr. M. did not have the support required to deal with this situation. In fact, he did not see his children for 2 months. Since the children have been placed into his care during school days, the children have been attending school regularly and are developing well. To add, the probation officer confirmed that Mr.

M. has done all his follow-ups and completed what was asked of him. [ 20 ] The expert also refers expressly to observations put to her by the children, including with respect to their current school situation (emphasis added): 102) In regards to their school, all three children express that they enjoy their school. They have many friends and do not wish to change schools. Their report cards also demonstrate that they are all succeeding well (except for when they missed many days during the month of January 2023, due to being in their mothers care).

During our interventions, none of the children expressed wanting to change schools. When questioned, [child X] mentioned that she expressed not wanting to go to school and her mother simply agreed. She also states that her mother is often late for pick-ups and drop offs on the few days she does bring them. In fact, even after the new judgment, the mother still has a hard time arriving on time.

We therefore question if the mother is in fact able to have custody half the time during school. [ 21 ] Importantly, the expert had the opportunity to assess both the mother and the father in their respective households and observed the following (emphasis added): 103) We were able to observe that Ms. Mu. likes to be the fun and easygoing parent. She loves to please her children and make sure that they are always happy. The children decide what to do when with their mother and it was very clear that they are aware of this. Ms. Mu. also admitted sometimes having trouble putting her limits. Ms.

Mu. expresses that she uses explanation as well as reasoning to discipline. This method may be currently working for the time being. However, there are concerns about how the mother will be able to implement structure and rules when the children are older. Like all children, they will test their boundaries. We believe that Ms. Mu. would benefit from a parental abilities program to educate and provide her with tools in order to establish parental authority. 104) Furthermore, all three children express that their father yells a lot and they are sometimes scared of him. We believe that Mr.

M. would benefit from following an anger management class to aid this. There were also mentions of mold in the home by [child X] , [child Y] and their mother. Unfortunately, we were unable to evaluate the state of the home, as we do not have the equipment required to do so. We did notice that there was a "musty smell" in the home.

We suggest that the father hires a professional to assure that there is no mold in the home for the children's health. [ 22 ] Based on her observations, the expert concludes her report with the following recommendations (emphasis added): 105) Parents are role models for their child and they must play their role positively. It is important to remember, parents bring a unique quality to the life of their children. Mr. M. and Ms. Mu. have strengths and weaknesses as parents who differ from each other. It is important that both parents do not interfere with each other's private life due to their past.

Based on our observations, we believe that all three children should remain at their current school in the father's district since he is able to assure their attendance. 106) During the summer months, we believe that the parents should have a 50-50 custody (one week-one-week interval). However, during the school months, we believe that the custody should majorly be in the father’s care during weekdays […] . [ 23 ] The Court now turns to the testimony given by the parents.

The Court does so more briefly given that that the observations made by the expert are consistent with the essence of the conclusions to be drawn from the parents’ respective testimony. The Father’s Testimony [ 24 ] In support of his application, the father testifies that the children’s school absences are to be attributed to what he refers to as the mother’s deficient parental and organizational skills. He fears that that this will harm the children’s academic growth.

Additionally, he points out that when the children return from their stays with the mother, they are undisciplined, disorganised and cannot be put down for bed before sometimes midnight. The father also testifies that the children’s personal hygiene is neglected upon their return to his residence. [ 25 ] The father further testifies that the mother is not responsive to his calls or text messages, and that she has unjustifiably prevented him from seeing the children.

By way of example, the father testifies that the mother has ignored his requests for photos of the children as well as for an opportunity to spend Father’s Day with them. The mother’s failure to let him see the children is precisely what led him to file the present application. He admits to have felt frustrated by the circumstances, and acknowledges that it was a mistake to attempt to enter the mother’s residence in November 2022. The Mother’s Testimony

[ 26 ] The mother refutes the contention that she is solely to blame for the children’s absences from school and contends that the children have missed school while in the father’s care as well. The mother also contends that the father’s residence is unsuitable for the children due to what she describes as a persistent mold issue. Likewise, she considers the children’s current school to be of poor quality and insists that they would be better off attending school in Ontario.

She also points to the father’s tendency to act aggressively towards her as well as towards the children, and refers in particular to the fact that criminal charges were laid against him when he attempted to break down the door to her residence in November 2022. [ 27 ] The mother emphasizes that she loves the children and is doing her best in the circumstances. She states that shared custody results in a lot of driving for her and that it is expensive, with little or no assistance from the father in this regard.

She also admits to feeling overwhelmed at times by the demands of the children’s routine, particularly in terms of their schooling, but that she wants to be a good mother. She is of the view that less than equal custody between the parents would be detrimental to the children. ANALYSIS [ 28 ] From the outset, the Court recalls that the cardinal rule to be followed in matters involving children requires that all decisions concerning them be made in their best interest, as set forth at

article 33 of the Civil Code states (emphasis added): 33. Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights. Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child’s age, health, personality and family environment, including the presence of family violence, which includes spousal violence, or sexual violence, and to the other aspects of his situation. [ 29 ] The question of what is in the best interest of a child is a question of fact.

It requires a weighing of various criteria, including inter alia the needs of the child, the parents’ ability to properly care for the child, the emotional bond between the child and the parents, the child’s stability as well as the child’s physical and mental health. Each case is unique, but in all circumstances, the analysis is made with a view to safeguarding the child’s best interest. [ 30 ] However trite, the purpose of the analysis is not meant to either punish a parent or otherwise favour one parent over the other.

Rather, the Court must assess the parents’ abilities solely with a view to determining how best to ensure that the child, and in this case the children, are protected against any detrimental behaviour. [ 31 ] In the present case, the Court must determine the custody arrangements that best serve the interests of three school-aged children. The expert concludes that the children are happy with both parents, each of whom have strengths that benefit the children.

Both parents also have their respective weaknesses, the mother lacking in structure and organization, and the father being prone to becoming impatient and yelling at the children, hence the Court’s recommendations that the mother pursue a program to enhance her parental abilities, and that the father pursue a program to address his anger management issues. [ 32 ] Be that as it may, in weighing the parents’ respective strengths and weaknesses for purposes of determining the appropriate custody arrangements, the analysis is driven by what is required to ensure that the children’s basic moral, intellectual, emotional and physical needs are met. [ 33 ] While the Court is not bound by the expert’s findings, it is required to give them proper weight with the understanding that in the event the Court were to not follow the expert’s recommendations, adequate justification is required to do so.

The Court recalls that the pivotal consideration underlying the expert’s recommendations in the present case rests with the mother’s struggles in remaining sufficiently organized to ensure the children’s attendance at school while they are in her care. Indeed, the mother’s organizational challenges led the expert to recommend that the children not be in her care during school days. [ 34 ] In light of the evidence administered at trial, the Court agrees with the expert’s assessment in this regard.

The Court has no doubt that the mother, and likewise the father, is committed to doing her best in responding to the children’s needs, but on balance, the Court must give predominant weight to the evidence of the mother’s repeated struggles with providing the children with a proper routine and a predictable schedule. This is particularly so given her shared duty with the father over the children’s education, an essential aspect of the exercise of parental authority pursuant to

article 599 of the Civil Code. Yet as demonstrated by the evidence at trial, she has repeatedly failed to either take the children to school, pick them up from school, or otherwise ensure that they be at school on time. The issue of the children’s attendance at school when in their mother’s care is persistent and has not improved over time despite the mother’s undertakings and court orders to this effect. [ 35 ] The explanations provided by the mother in fact confirm her persistent challenges in this regard.

According to her own testimony, while in her care, the children have been absent or late for school due to traffic, road conditions, car failure and occasionally because they are sick although the mother could not produce any evidence in this regard. The evidentiary record itself, as seen from the children’s report cards, shows that the children have been very often absent from school while in the mother’s care with no justification whatsoever.

Similarly, the Court notes that the mother demonstrated the same inability to respect court dates and appearances in the context of both the present proceedings and the prior proceedings before the Superior Court of Ontario. [ 36 ] The mother herself acknowledges that she struggles in terms of getting back on her feet, as she puts it. She also admits to struggling with setting boundaries with the children and imposing her authority when the object to what is required such as attending school.

Yet as time passes, she has not demonstrated any consequential progress in addressing the issue, including in terms of communicating with the father in this regard and, more generally, for purposes of improving her parental skills on the organizational front.

Good intentions are not enough, and while the mother’s challenges may not prove to be detrimental to the children on weekends or during school breaks, they are significant when it comes to the children’s intellectual and educational development. [ 37 ] In contrast, the father has demonstrated that when the children are in his care, they have the benefit of attending school with very few absences. Furthermore, as noted by the expert, the children are striving in their school environment and contrary to the mother’s claims, they wish to remain in their current school.

This being said, the father has his own challenges, particularly in terms of

anger management, and more generally, the children would benefit from the prospect of improved co-parenting between the father and the mother, especially in terms of communication. For this reason, the Court recommends that the parents participate in a co-parenting program. [ 38 ] In

summary, the Court has not been persuaded that equal custody is in the best interest of the children when they are in school given the mother’s shortcomings with the logistical reality of their school routine and transportation. By the same token, the Court considers that it is in the best interest of the children that they be with their mother on a shared custody basis when they are not in school, including on pedagogical days and during the summer school break period.

Hence, pursuant to the present judgment, on a yearly basis, the father shall accordingly have 2/3 parenting time over the children and the mother shall have 1/3 parenting time over them, as detailed in the order below.

FOR THESE REASONS, THE COURT: [ 39 ] ALLOWS the father’s application; [ 40 ] ORDERS that the children continue to attend school in the district of the father’s residence; [ 41 ] GRANTS the father custody of the children on all school days and every third weekend; [ 42 ] GRANTS the mother custody of the children on all pedagogical days ( beginning on the prior school day, after school, or, if applicable, prolonged to the day before the next school day, at 5PM) and all remaining weekends during the school year ( from Friday after school until Sunday at 5 PM) ; [ 43 ] ORDERS that the mother be responsible for picking up the children when her turn with parenting time begins, on Fridays after school or, failing which, at 4PM at the father’s residence; [ 44 ] ORDERS that the father be responsible for picking up the children when his turn with parenting time begins, on Sundays at 5PM, at the mother’s residence; [ 45 ] GRANTS the parents equal shared custody during the summer school break ( on a weekly basis, alternating every Friday, with transportation being the responsibility of the parent whose turn with custody begins ); [ 46 ] ORDERS that holidays and special events be shared amongst the parents amicably, but should no agreement be reached, that such events be shared as follows: • Children’s birthdays – the custody

schedule remains as ordered but the parent who does not have the celebrated child on the actual birthday shall have the opportunity to visit the child for a period of 3 hours; • March break – the parents shall share custody over the days equally, the mother having first choice of dates on odd years and the father having first choice of dates on even years; • Easter – the children shall be with the mother on even years and with the father on odd years, from Thursday after school until Monday at 5PM; • Mother’s Day / Father’s Day – the children shall be with the designated parent from 10AM, or after school, until 8 PM; • Thanksgiving – the children shall be with the mother on odd years and with the father on even years, from Friday after school until Monday at 5 PM; • Halloween – the children shall be with the mother on odd years, and with the father on even years, from after school until 8 PM; • End of year holidays – the parents shall share the end of year holidays equally, one parent having the children on Christmas Eve and New Year’s Eve and the other parent having the children on Christmas Day and New Year’s Day – on odd years, the mother shall have Christmas Day and New Year’s Day and on even years, she shall have Christmas Eve and New Year’s Eve; conversely, on odd years, the father shall have Christmas Eve and New Year’s Eve, and on even years, he shall have Christmas Day and New Year’s Day; [ 47 ] ALLOWS the father to communicate with the mother and be in her presence as required for purposes of exercising his parenting time over the children; [ 48 ] AUTHORIZES any and all police forces to assist the father to pick up the children and to take any action necessary to do so, including entering a location where the children are; [ 49 ] RECOMMENDS that the mother pursue a parental skills program;

[ 50 ] RECOMMENDS that the father pursue an anger management program; [ 51 ] RECOMMENDS that the parents participate in a co-parenting program; [ 52 ] RECOMMENDS that the father hire a professional to ensure that there is no mold in his residence that could be detrimental to the children's health; [ 53 ] ORDERS both parents not to denigrate the other parent, or otherwise criticize the conduct of the other parent, in the presence of the children; [ 54 ] AUTHORIZES the children to talk to their parent while they are with their other parent at any time if they so wish; [ 55 ] WITHOUT COSTS . __________________________________ RENÉE THÉRIAULT, j.c.s.

Me Ashlee Blair Noël & associés, s.e.n.c.r.l. Attorney for Applicant Ms. A. Mu. Unrepresented Defendant Hearing dates: December 13-14, 2023