2011 QCCA 889, 2011 QCCA 889

Unofficial English Translation Droit de la famille — 111373 2011 QCCA 889 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020691-101 (505-12-028272-055) DATE: MAY 16, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. NICOLE DUVAL HESLER, J.A. M.G. APPELLANT – Applicant v. J.B. RESPONDENT – Defendant and X AND Y IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] THE COURT; - On the appeal from a judgment of the Superior Court, District of Longueuil (the Honourable Mr. Justice Mark G. Peacock), which on May 3, 2010, ruled on applications for variation orders under

section 17 of the Divorce Act ; [1] [ 2 ] After having heard the parties, examined the file and deliberated; [ 3 ] The parties divorced by mutual consent early in 2005 and agreed on various corollary relief measures at that time. One of the measures provided for shared custody of the children. [ 4 ] Relations deteriorated seriously in December of 2007, however, as a result of an incident that caused the cancellation of a vacation to Mexico that the appellant had planned. An unfortunate guerrilla war in the courts ensued, with the impugned judgment being the most recent outcome.

Ruling at that time on the applications for variation orders made by the parties, the judge awarded the respondent sole custody of the couple’s two children and condemned the appellant to pay support, retroactively to November 28, 2008. In so doing, he confirmed the solution that he had given effect to at that same date, at the end of a long inquiry resulting in the issuance of an interim order. [ 5 ] The appellant, who represented herself before the Court, proposes 11 grounds of appeal. With reason, counsel for the respondent grouped them together.

Before considering them more specifically, a preliminary comment is warranted. [ 6 ] The appeal is a means placed at litigants’ disposal so that they may appeal from a judgment. In principle, its purpose is not to enable the appellant to retry the case. [2] Before proposing a revision of findings of fact, of inferences drawn by the judge or of conclusions on matters of law and fact, the appellant must first determine the error(

s) that would justify a revision. They must be material, in other words palpable and overriding, to borrow the adjectives used by the Supreme Court. [ 7 ] In Regroupement des Centres hospitaliers de soins de longue durée Christ-Roy v. Comité provincial des malades , Morissette J.A. specified the applicable standard in the following way: [3] [ translation ] [55] When evidence of some complexity lends itself to

interpretation and requires that the trial judge perform an individual assessment and then an overall assessment of several elements, some of which are divergent or contradictory, it is not sufficient to select for appeal purposes everything that could have been interpreted differently, to the exclusion of all else, so as to reiterate a thesis already

deemed to be without merit by the judge who tried the case. An error in the determination of a fact at issue is palpable only if its obviousor flagrant nature is seen clearly from a reconsideration of the relevant portion of the evidence and a different conclusion concerning thefact in issue is warranted.

An error is overriding only if it deprives the judgment a quo of a necessary foundation in fact, thereby skewingthe conclusions of the decision rendered in the first instance and necessitating a review of the conclusions for that reason. [8] It is appropriate to point out that this matter does not involve a simple procedural rule.

The principle goes to substantive lawand even the Court’s jurisdiction:[4] [53] …Moreover, I stress that the principle of non-intervention stated in this line of cases is not merely cautionary; it is a rule of law.Failing a manifest error, an appellate court simply has no jurisdiction to interfere with the findings and conclusions of fact of a trialjudge.... [9] More specifically, the deference owed to the findings of a trial judge is especially strict in family matters.

Thus, concerningcustody disputes, our Court reiterated the deference that it must show:[5] [translation] [14] The Supreme Court teaches that, concerning custody orders, appellate courts must observe the greatest restraint [Van de Perre v.Edwards, 2001 SCC 60 , [2001] 2 SCR 1014]. Only the presence of an error of law or a material error of fact may justifyintervention. This rule came about because custody orders are based on a careful analysis of the facts.

Having had the privilege of directcontact with the parties and the witnesses, the trial judge is the one who is best placed to decide these matters, which are occasionallyheart-rending and whose outcome, whatever it may be, affects the quality of ties that are among the most basic. [10] The same restraint is warranted for matters involving support obligations, as the Supreme Court points out in Hickey:[6] [12] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders.

Thisstandard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who hasheard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appealcourt will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation andrecognizes the importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is amaterial error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply becauseit would have made a different decision or balanced the factors differently. [11] In this case and concerning the grounds raised other than those of law, the appellant unfortunately asks the Court to engage inan exercise that it may not carry out, for lack of a prior demonstration of errors giving rise to reconsideration. 1- The errors of law

a) The judge was not bound by the interim judgment of November 28, 2008 [12] The proceedings leading to the rulings on the applications for variation orders gave rise to numerous incidents, one of whichrequired a three-day hearing.

At the end of it, the judge issued an interim order giving the respondent sole custody, which was previouslyshared by both parents. [13] The appellant argues that the impugned judgment erroneously took the position of ascribing to the interim judgment theauthority of res judicata. [14] In law, the appellant is correct to state that an interim judgment does not have the attributes of res judicata when the time comesto debate the merits of the dispute.[7] Some passages of the judgment a quo appear to be open to criticism in this respect.

Even so, to theextent that the judge may have misunderstood the actual weight of the interim judgment, this error is without consequences in the presentcircumstances. [15] Without being bound by the judgment, the judge could take it into account, especially as the matter had taken a rare turn for anincident, the parties having debated it before him as if it was the inquiry into the merits of the case. The judge therefore took intoaccount the findings from such inquiry and gave effect to those that, in his opinion, were still relevant at the time of the trial proper.

Healso did an exhaustive analysis of the changes that had taken place in the year since that inquiry. [16] In any event, the appellant herself recognizes that it would not be reasonable to redo the inquiry to analyze all the facts relevantto the custody order. [17] On the whole, the Court is therefore of the opinion that this ground of appeal does not justify intervening in the circumstancesof the case under consideration.

b) Other errors of law [18] The appellant faulted the trial judge for various other reasons, of which the list follows: − He should not have admitted exhibit P-13 into evidence; − He should have denied the respondent’s objections and admitted exhibit G-6 in its entirety as well as the transcript of November28, 2008; − He compelled the report by the expert Vidal to be filed;

− He took cognizance of scientific information outside the legal proceedings without communicating it to the parties; and − He ordered therapy for the parties and the children. [ 19 ] There is no reason to elaborate on any of these grounds. In reality, they constitute only an invitation to retry the case with the addition or subtraction of evidence that is not of a determinative nature. In the Court’s opinion, the judge conducted the trial correctly and the appellant’s grievances in this regard are without merit. 2 - Misapprehension of the facts

a) The judge allegedly misapprehended the evidence concerning the respondent’s reasons for moving [ 20 ] At the time of the trial, the respondent was planning to move to a different city at the end of the 2010 school year to be closer to his place of work, his family and his new spouse’s family. He referred in his testimony to the considerable support that such a move could provide in terms of custody of the children, in light of his new work schedule.

Indeed, in August of 2009, the respondent had changed job, going from foreman in a carpentry workshop to cabinetmaker for an aircraft manufacturer. [ 21 ] The importance of this aspect of the dispute is due to the fact that the distance between the respondent’s new domicile and that of the appellant made it impracticable for the time being to revert to shared custody. The appellant saw the announcement of this significant development shortly before the Superior Court hearing as a malicious strategy hatched by the respondent to render shared custody impossible. She argued this at length before the judge.

Even so, after weighing all the evidence, he concluded that the decision to move was based on reasonable grounds and was motivated by good faith. He wrote: [112] In conclusion, the Court finds that the Father and Ms.

M. had just cause for moving their residence for which there is no evidence that they were motivated by any bad faith effort to deprive the Mother of her rights. [113] Accordingly, the Court finds that the move was based upon reasonable grounds, as was the Father’s change of employment. [ 22 ] Before our Court, the appellant again submitted her theory, repeating the arguments that the judge had set aside.

Of course, the evidence is not unequivocal, but the existence of elements likely to favour the appellant’s theory cannot, in itself, justify our intervention. [8] Here, the judge’s finding is reasonably based on the testimony and the facts presented before him. No palpable and overriding error authorizes us therefore to review it. [ 23 ] Moreover, the appellant perceived the judge’s conclusion as a manifestation of his bias.

In fact, she asked that he be recused for that reason. [ 24 ] Even if this application does not constitute an issue in the appeal, the appellant cited the existence of it to try to justify a reconsideration of the facts. It is appropriate to reiterate certain principles. [ 25 ] In Droit de la famille 1559 , [9] Delisle J.A. specified the tests applicable to such a matter: [ translation ] To justify recusal, the apprehension of bias must therefore:

a) be reasonable, in that it must be an apprehension that is both logical, in other words it is based on substantial grounds, and objective, in other words it would be shared by the person described in

b) below, placed in the same circumstances; it cannot be a slight, frivolous or isolated apprehension;

b) come from a person who is: 1. sensible , not a quibbler, who is neither over-scrupulous nor anxious, naturally apprehensive nor readily inclined to blame others; 2. well informed, having thought the matter through in a manner that is realistic and devoid of emotion; the application for recusal cannot be impulsive or a means of choosing the person to preside over the debate; and

c) based on good reasons; in the analysis of this test, it is necessary to be more stringent depending on whether the debate has been recorded and whether a right of appeal exists. [ 26 ] As the Supreme Court states, a claim of this nature must not be raised lightly: [10] 59 Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed.

As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.) , supra , at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified. 60 In Canadian law, one standard has now emerged as the test for disqualification.

The test, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board , supra , at p. 394, is the reasonable apprehension of bias: . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more

likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [ 27 ] In this light, the Court must dismiss the appellant’s claims.

b) The experts’ testimony [ 28 ] The experts Fortier and Vidal, the first heard for the respondent and the second for the appellant, were not in favour of shared custody or sole custody awarded to the appellant, at least for the time being. [ 29 ] Throughout the judicial proceedings, the appellant’s position on the experts’ work and their conclusions underwent repeated reversals and about-faces. The following excerpt from the trial judgment gives us a glimpse of this: [9] The Mother has expressed the view that expert evidence was not necessary for the concluding proceedings.

However, the Court of Appeal has recently discussed the utility of having a psychosocial expertise to assist the Court in matters concerning parental alienation. [10] The Mother objected to the admissibility of Mr. Fortier and his follow-up expert’s report on behalf of the Father on the grounds of conflict of interest and bias on the part of Mr. Fortier. The Court heard Mr. Fortier’s evidence on reserve and will now rule on this objection. [11] The Court’s analysis of this objection must necessarily consider the context and history of Mr. Fortier’s testimony in these proceedings. (

i) Testimony and Interim Proceedings [12] Mr. Fortier was jointly chosen by the parties to prepare a psychosocial expertise in the interim proceedings. His evidence was relied upon by the Court in its interim judgment. (

a) Disciplinary Matters [13] Mr. Fortier testified that the Mother made a complaint against him to the Order of Psychologists [which was rejected], as did the maternal grandparents and when their complaint was rejected, they took the matter to appeal but their appeal was also rejected. (ii) Opposing Experts in these Concluding Proceedings [14] Although the Mother represented herself in the interim proceedings, she hired counsel for her appeal of the interim judgment and continued to retain that counsel for the concluding proceedings. In the present case, a

schedule was agreed to between the Mother’s counsel and the Father’s counsel wherein the parties agreed to be interviewed respectively first by the Mother’s expert, Mr. Gilles Vidal and then by the Father’s expert, Mr. Fortier. [15] On or about October 26, 2009, Mr. Vidal’s report was completed but, the Mother changed legal counsel. Her second legal counsel then took the position that Mr.

Vidal’s report would not be filed into Court by the Mother. [16] In the November 5, 2009 case management hearing before the Court attended by all counsel, including the new counsel for the Mother, the Mother advised the Court that there were no longer any complaints pending before the Order of Psychologists regarding Mr. Fortier. In view of certain hostile feelings expressed by the Mother against Mr. Fortier, the Court decided that it would be prudent to order that the interview between Mr.

Fortier and the Mother be videotaped for the protection of all parties. [17] On that date, the Mother’s second attorney filed a notice to put herself on the record on behalf of the Mother. [18] At the November 5, 2009 hearing, the parties confirmed that Mr. Fortier’s expert’s report would be produced by December 18, 2009 before 2:00 p.m. and the Mother’s counsel advised that any counter-expertise to the Fortier report would be filed by January 13, 2010. [19] On November 12, 2009, the children’s counsel made a motion to force the production of the Vidal report into the Court record.

This motion was to be heard on December 16, 2009. [20] However, on November 17, 2009, the Mother filed a notice revoking the mandate of this second attorney and appeared personally. [21] The parties and the Court were advised that the earliest time that Mr. Fortier could see the Mother was on January 19, 2010. [22] The Court determined that from the position taken by the Mother at the hearing on December 9, 2009 that the Mother was refusing to be interviewed by Mr.

Fortier. [23] By judgment rendered on December 16, 2009, the Court dismissed the children’s attorney’s motion, which had been opposed by the Mother, thus giving the Mother the option to keep the Vidal report confidential. [24] In the same judgment, the Court declared that it could not revise the interim judgment on custody and access at the February 2010 concluding hearing since the Mother effectively prevented the Court from benefiting from complete expert evidence on behalf of the Father, contrary to what had been agreed in the parties’ judicial case management contract. (iii) The Mother Decides to Produce the Vidal Report of Her Own Volition [25] Thereafter, the Mother changed her mind and sought the Court’s permission to file the Vidal report.

[26] On February 2, 2010, the Court granted the Mother’s Motion to Allow the Late Filing of the Vidal Report dated October 26, 2009, as an expert’s report and the Court allowed the Mother to call Mr. Vidal as an expert witness at trial. [27] At trial, the Court was advised that the Mother had changed her position and had sought to file the Vidal report following discussions with her therapist, Ms. Lamontagne. [ 30 ] Before our Court, the appellant argues that the judge should not have taken the testimony of the two experts into account because they were biased against her. She failed to convince the trial judge.

On appeal, her burden is even heavier in that she must first determine the palpable and overriding error that the judge allegedly committed in this regard. For lack of an adequate demonstration, this ground must also fail.

c) The analysis of the facts should have prompted the judge to allow shared custody [ 31 ] Comments identical to those that precede apply to this ground of appeal. It is appropriate, however, to add some additional considerations. [ 32 ] In the factum that he filed on their behalf, counsel for the children said the following: [ translation ] 14. The undersigned would first like to state that, as the RESPONDENT summarizes at paragraph 52 of his statement, we believe that, in light of the Supreme Court’s teachings concerning the appeal of family decisions, the Honourable Mr. Justice Mark G.

Peacock committed no error justifying the intervention of this Court. In like manner, concerning the preference of X and Y at the time, the Honourable Mr. Justice Mark G. Peacock adequately interpreted this preference and ruled accordingly. [ 33 ] Nevertheless he sought an order for shared custody because of the children’s profound wish to maximize their contact with both parents: [ translation ] 16. Moreover, the undersigned would like to stress that X is 13 years old and Y is 12 years old.

Given their age, their choice is largely determinative, unless other factors strongly indicate that it is not in their best interests to give effect to their choice. 17. In this case, we respectfully submit that there is no factor strongly indicating that it is not in the interests of X and Y to give effect to their preference. Indeed, there is no residual appearance of parental alienation. Moreover, concerning the parents’ child-rearing abilities, the honourable trial judge believes that, subject to the therapy that the parents must complete, the parents’ child-rearing abilities are adequate. 18.

For the reasons stated above, the undersigned believes that the conclusions proposed in the APPELLANT’s statement are in the best interests of X and Y, in light of the mandate they have given the undersigned. Even so, the undersigned suggests that the said conclusions apply only from the end of their school year, to ensure stability for X and Y. [ 34 ] Shortly before the hearing, however, counsel for the children informed the Court of their new stance on this matter.

They still want to have as much contact as possible with each parent, but they find that shared custody on an alternating-week basis is no longer a viable option. They therefore rely on the Court. [ 35 ] Aside from this issue, it is necessary to emphasize the importance of the sincere wish expressed by the children. Reversion to a more conciliatory approach on the part of each parent would without any doubt be better for all concerned. In matrimonial matters, above all others, the judgments of the courts are not the only way of resolving difficulties.

Reasonable agreements between the parties, based on understanding and mutual respect, have virtues that the best orders cannot replace. 3 - Orders concerning support and arrears [ 36 ] The appellant reported an annual income of $9,981.46 for 2009. She owns a residence with an appraised value of $382,000. She must make monthly payments of $1,511, including municipal taxes, to pay the balance of a mortgage of about $177,000. Moreover, her car loan requires monthly payments of $463.

Her parents pay this amount directly. [ 37 ] In Droit de la famille — 07382 , Dalphond J.A. wrote: [11] [ translation ] [18] In addition, the respondent recognizes that she lives in a townhouse in city A, owned by her mother, for which she appears to pay a monthly rent of $600 under an oral lease, which has not changed since 1990, in cash and without a receipt, a practice replaced shortly before the trial by the monthly provision of a cheque; her mother also redid the floors in 2005 at her expense.

The same year, the respondent’s mother apparently provided her with financial assistance of $5,000 to $6,000 to help pay her tuition fees and dental expenses. She apparently also gave the respondent and her children a trip to Cuba as a Christmas present. [19] In Droit de la famille , 3rd ed (Cowansville, Qc: Yvon Blais, 2005) at paragraph 5.5.1.3, on page 925, Michel Tétrault wrote:

Section 9 of the Regulation covers all types of benefits, including the amount of money paid periodically to offset the abolition of the position that the debtor held, sums of money paid regularly by parents, the use for personal purposes of a vehicle that is not used only for employment purposes, monthly compensation paid to a parent as compensation for the death of his or her first spouse, performance bonuses; … [20] In short, proper application of the Regulation requires that any arrangement benefiting one party or the children be taken into

account (s 2 of the Regulation; s 15.1(5) of the Divorce Act, RSC 1985, c 3 (2nd supp)). [ 38 ] These principles were applied in the case at bar. [ 39 ] Relying on the power conferred on him by

article 825.12 CCP , the judge attributed an income to the appellant for the purposes of setting support. In this exercise, he limited himself to amounts that, in all likelihood, fall short of reality. [ 40 ] As for the start of the calculation of the support payable by the appellant, it corresponds to point at which the father was awarded sole custody of both children. [ 41 ] The judge did not commit any error in taking into account daycare costs and determining special expenses. [ 42 ] Lastly, the appellant faulted the judge for having condemned her to pay half of the fees of the expert Fortier.

It is necessary to take into account, however, that in March of 2008, the parties had agreed to the psychosocial expertise to be conducted by that expert. The judge therefore did not exercise his discretionary power in an unreasonable manner. [ 43 ] On the whole, the support orders issued by the judge are in accordance with the applicable rules and there is no reason to intervene. FOR THOSE REASONS: [ 44 ] DISMISSES the appeal without costs given the nature of the matter. JACQUES CHAMBERLAND, J.A. FRANÇOIS PELLETIER, J.A. NICOLE DUVAL HESLER, J.A. Ms. M.G.

Personally Mtre Michèle Léger For the respondent Mtre Alexandre Germain Hamel, Germain, Lemay, avocats For the impleaded parties Date of hearing: April 5, 2011