2019 QCCA 800, 2019 QCCA 800

Droit de la famille — 19803 2019 QCCA 800 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027840-180 (500-04-068150-169) MINUTES OF THE HEARING DATE: May 3 rd , 2019 CORAM: THE HONOURABLE marie-france bich , J.A. manon savard , J.A. mark schrager , J.A. APPELLANT COUNSEL S. T. Mtre LUCIA VALVANO (Caputo Machico Valvano) RESPONDENT COUNSEL N. B. Mtre STÉPHANE L'ÉCUYER (Avocats L'Ecuyer) IMPLEADED PARTIES COUNSEL CHILD Mtre VALENTIN MOLPECERES CHILD Mtre ISABEL BRAULT

On appeal from a judgment rendered on August 28, 2018 by the Honourable Justice Chantal Corriveau of the Superior Court, District of Montreal. DESCRIPTION : Family – Expertise – Parental Alienation Syndrome. Clerk: Stephane Robinson Courtroom: Antonio-Lamer (RC.14) HEARING 9:30 Continuation of the hearing held on May 2 nd , 2019. Counsel is exempted from attending the hearing. BY THE COURT : JUDGMENT – SEE PAGE 3. (

s) Stephane Robinson Clerk BY THE COURT JUDGMENT [ 1 ] The appellant appeals a judgment rendered on August 28, 2018 by the Superior Court, District of Montreal (the Honourable Madam Justice Chantal Corriveau), which dismissed her application for sole custody of the parties’ two children and determined her access rights. [1] * * * [ 2 ] The parties were married on July 28, 2002 and are the parents of two children, X and Y, who were 14 and 10 years old, respectively, at the time of the hearing in first instance.

The divorce judgment, which confirmed a consent regarding corollary relief, was rendered on March 15, 2012. The appellant was granted custody of the children, with the respondent being granted access rights on weekends and during school holidays. [ 3 ] Save for a brief period of reconciliation after the divorce, the parties’ relationship can be characterized as “highly antagonistic”. Their relationship had definitely deteriorated as of December 31, 2012, when the appellant left the family home with the children.

Following an intervention by the Direction de la protection de la jeunesse and a Court of Quebec judgment, the parties modified the custody arrangements by mutual consent in October 2013: The respondent was granted custody of the children and the appellant was granted supervised access rights, notably because of her medical condition. The supervision ended during the course of 2015. [ 4 ] In November 2015, while X was with the appellant, he suffered an accident that resulted in a long hospital stay.

The respondent prevented the appellant from seeing X for several months, leading the appellant in 2016 to institute proceedings to have the custody arrangements varied. [ 5 ] In June 2016, the court appointed counsel to each child and ordered a psychosocial evaluation which was eventually prepared

by Ms. Gamache, of the Psychosocial Assessment Service of the Superior Court. She submitted her report in January 2017. [ 6 ] At the time of the hearing before the judge, the appellant was seeing Y every Friday from 4:30 p.m. to 8:30 p.m. and both children on Sundays between 9:00 a.m. and 5:00 p.m. She sought sole custody of the children or, subsidiarily, shared custody. The respondent opposed the appellant’s application and sought to further restrict the appellant’s access rights. [ 7 ] X, acting through counsel, indicated that he no longer wished to see the appellant.

Y, who testified at the trial, wanted the appellant’s access rights to be limited to Sundays, for visits of 2 to 3 hours. * * * [ 8 ] In the trial judge’s opinion, the appellant’s request for sole or shared custody was not realistic, despite the improvement in her medical condition, nor was it in the best interests of the children. [ 9 ] While the judge did not conclude that there was parental alienation, she did find that the children were caught in the middle of a conflict of loyalty that affected the positions they took in the case. Moreover, she considered that Ms.

Gamache’s psychosocial assessment was still relevant, even though it dated back to January 2017. The judge did not, however, follow Ms. Gamache’s suggestion to increase the appellant’s access rights with respect to Y, nor did she accept Y’s position regarding the restrictions to be imposed on the appellant’s existing access rights. Instead, she maintained access rights with respect to Y on Fridays, from 4:30 p.m. to 8:30 p.m., but limited them on Sundays from 9:00 a.m. to 1:00 p.m., or from 1:00 p.m. to 5:00 p.m. As for X, the judge did not follow Ms.

Gamache’s suggestion and recommended that he participate in the Sunday visits together with his sister, but she did not oblige him to do so. * * * [ 10 ] The appellant raises the following grounds of appeal: 1) The Trial judge erred in law by decreasing Appellant’s access to the minor children, notwithstanding the fact that she recognized and confirmed the presence of a conflict of loyalty and indicators or signs of parental alienation; 2) The trial judge erred in law by failing to increase Appellant’s access to the minor child, Y, notwithstanding the fact that while addressing the attorneys in the Courtroom, she stated that she did not believe the minor child’s testimony regarding events occurring during her mother’s access; 3) The trial judge erred in law by failing to recognize that the definitive presence of a conflict of loyalty so ingrained and deep-rooted, that she should have acknowledged that the children are subject to parental alienation by the father; 4) The trial judge erred in law by failing to order a new psychological expertise with a more in-depth analysis regarding parental alienation. [ 11 ] These grounds overlap and duplicate one another, such that it is appropriate to address them together. * * * [ 12 ] The applicable standard of review in such matters is well known.

When dealing with child custody issues, which includes the determination of access rights, the trial judge has very broad discretion. [2] Inasmuch as a case-by-case consideration of the circumstances of the child and the parents is the hallmark of the process for apportioning parental responsibilities, as is the determination of the best interests of the child, [3] the court’s appreciation of the facts and witnesses is key to the decision-making process. [4] Therefore, in principle, this Court exercises great restraint and will intervene only if there is a significant error in law or a serious misapprehension of the facts. [5] As Chamberland, J.A. wrote in Droit de la famille – 112019 : [6] [ translation ] [18] […] The Court of Appeal will intervene only where there is a serious error in principle, a significant error or a serious misapprehension of the facts, or where the judgment is clearly wrong; it is not, however, entitled to overturn the order under appeal simply because it would have made a different decision. [ 13 ] This strict standard also applies to a judge’s assessment of an expert report, even where the judge deviates from the expert’s recommendations.

The judge is not bound by the expert’s suggestions or recommendations. Nonetheless, an expert report cannot be disregarded lightly; the court must adequately explain its decision [7] and the decision must be [ translation ] “based on the facts in evidence.” [8] [ 14 ] In the case at bar, based on the evidence, the trial judge was entitled to conclude that there was a conflict of loyalty (para. 36 of the judgment), without necessarily finding that there was parental alienation. The psychosocial assessment refers to a conflict of loyalty, not parental alienation.

At trial, the report’s author confirmed the existence of the conflict, but could not conclude that there was parental alienation, because both the appellant and the respondent had denigrated each other and had attempted to influence the children. The appellant is correct in pointing out that this report was prepared in January 2017 and that its author had not seen the children again just prior to the trial. However, the judge cannot be said to have erred in this regard, given that the appellant did not require that the report be updated because its author had retired.

Moreover, none of the parties asked the trial judge for an additional expert report, despite the fact that all of them were aware of the time that had elapsed. [ 15 ] The appellant has not demonstrated that the judge committed a reviewable error when she assessed and weighed the evidence regarding Y.

While she did indeed deviate from the expert’s suggestion to increase the appellant’s access rights by having Y sleep over on Saturdays, the judge explained that her decision was based in part on the appellant’s difficulty in offering Y activities that met the needs of a 10-year-old child rather than the appellant’s own needs. Moreover, in light of Y’s age, her desire to have the access reduced,

although not decisive in and of itself, is relevant and the judge was required to consider it. [9] The judge did give consideration to the conflict of loyalty experienced by the child to nevertheless maintain the appellant’s access on Fridays, despite the child’s wishes. [ 16 ] As for X, he was opposed to the appellant being granted any access rights and was certainly more affected by a conflict of loyalty, as the evidence indicated.

However, in light of his age (14-year old at the time of the trial), the judge did not commit a reviewable error by giving decisive weight to his preference, particularly since her conclusion agrees in part with the expert’s recommendation – i.e. at the time of the trial the supervised visits with the child as proposed by the expert were no longer feasible. [ 17 ] The judge was faced with a delicate and regrettable situation. A close and healthy relationship with each parent would indisputably have been in the children’s best interest.

Given the circumstances of the case, however, the judge’s decision was reasonable. Therefore, the Court will not intervene. [ 18 ] Both parties must learn to put aside their conflict in the best interest of the children. Given that the respondent has sole custody of the children, he should particularly be proactive so that both of them maintain regular contacts with the appellant, without being caught in a loyalty conflict. Y and X should be encouraged to maintain a bond with each of their parents. FOR THESE REASONS, THE COURT : [ 19 ] DISMISSES the appeal, without legal costs given

article 340 C.C.P. marie-france bich, J.A. manon savard, J.A. mark schrager, J.A.