2016 QCCA 1066, 2016 QCCA 1066

Droit de la famille — 161456 2016 QCCA 1066 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026126-169 (500-12-323584-148) MINUTES OF THE HEARING DATE: June 17, 2016 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL R. M. Mtre pierre-gilles laframboise (Laframboise Gutkin s.e.n.c.) RESPONDENT COUNSEL O. N. Mtre DANIELLE GERVAIS DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on May 5, 2016 by the Honourable Karen Kear-Jodoin of the Superior Court, District of Montreal. (Article 31 C.C.P. ) Clerk: Mihary Andrianaivo Courtroom: RC-18

HEARING 10:39 Beginning of the hearing. Preliminary comments by the Judge. 10:40 Submissions by Mtre Laframboise. 11:02 Recess. 11:20 Resumption of the hearing. Continuation of the submissions by Mtre Laframboise. 11:31 Submissions by Mtre Gervais. 11:46 Rebuttal by Mtre Laframboise. 11:51 BY THE JUDGE: The hearing has been adjourned until 16:00, courtroom RC-18. The attendance by the Parties is not required. 11:52 Recess. 16:08 Resumption of the hearing. BY THE JUDGE: Judgment – See page 3. End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] R.

M. seeks leave to appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Madam Justice Karen Kear-Jodoin), rendered May 5, 2016. The judge granted exclusive exercise of the right of custody of two children of the marriage to the respondent, O. N., with access rights for the petitioner, as part of provisional measures ordered in divorce proceedings between the parties. [ 2 ] The petitioner argues that the judge made a series of errors that led her to mistakenly refuse his request for shared custody for X, age 5, and to limit unduly his access rights to Y, age 16 months.

In particular, the judge is said to have erred in setting aside what the petitioner characterizes as convergent recommendations for a shared custody arrangement for the older boy made by the experts of both the father and the mother. *** [ 3 ] In order to obtain leave from this judgment decided during the course of proceedings, the petitioner must show that the judgment determines part of the dispute or “causes irremediable prejudice to a party / cause un préjudice irrémédiable à une partie” pursuant to

article 31, paragraph 2 C.C.P. Furthermore, leave will only be granted if it is in the best interests of justice (article 9) and if the decision to do so is in keeping with the principle of proportionality (article 18). [ 4 ] In the petitioner’s view, the refusal to grant joint custody for X deprives the boy of time with his father, thereby causing the child an “irremediable prejudice” that cannot be corrected by the judge on the merits.

He points as well to the costs and time involved in obtaining further expertise as a source of prejudice and argues that, as a matter of fair access to justice, leave should be granted rather than re-litigating the custody issue completely on the merits. [ 5 ] As to the substance of the proposed appeal, the judge is said to have committed overriding errors in her measure of the children’s best interest such that, says the petitioner, the provisional custody order must be set aside.

*** [ 6 ] Leave should be refused. [ 7 ] The fact that the order was made at the stage of provisional measures and the significant character of the contact between the older child and his father suggests to me that the criterion of “irremediable prejudice” in

article 31 C.C.P. has not been met. But I need not decide the matter. Given the strict standard of review applicable on appeals from custody in divorce proceedings at the provisional stage and the factual character of the petitioner’s grounds, the proposed appeal has no reasonable chance of success.

Both the criterion of the best interest of justice and considerations of proportionality weigh strongly against granting leave. [ 8 ] The reasons for a strict standard of review on appeal in custody matters at the stage of provisional measures bear recalling. [ 9 ] As a general matter, this Court has repeatedly held that it owes significant deference to decisions rendered in first instance on custody matters. [1] This rule of deference reflects an acknowledgment of judge’s advantages in hearing evidence first hand, as well as the special importance of achieving the stability that comes from finality of judgments in family matters where children are involved. [2] In general, only an error of law or a serious misapprehension of the evidence leading to an overriding error of fact will justify disturbing the judgment below. [3] [ 10 ] This deference is observed strictly on appeal from judgments rendered at the provisional stage in divorce. [4] The temporary character of judgments on provisional measures, the ever-changing complexion of family circumstances, as well as the imminence of the review on the merits all encourage the Court to adopt a high degree of deference in respect of provisional judgments bearing on custody which, it should be remembered, are inherently discretionary. [5] [ 11 ] This standard, in light of the arguments made, suggests that there is no reasonable prospect that the petitioner will prevail on appeal. [ 12 ] The judge made no error of law in noting that she was not bound to follow the recommendations of the experts.

I agree with the petitioner that the judge had to offer reasons for doing so. When the experts of opposing parties give a same recommendation that a judge chooses not to follow, it strikes me as true that the judge is bound to explain why he or she declines to do so in some detail. [ 13 ] In my view the judge met that standard here. [ 14 ] From her reasons, it is plain that she considered the level of conflict between the parents as incompatible with a shared custody order at the present time.

The judgment, at paragraph [52] and passim , is replete with references to the evidence adduced before her that explain her point of view. These are issues of fact, including the judge’s evaluation of the maturity and candour of the parties. Such considerations are of particular importance where the parents are required to cooperate in the often complicated joint venture of shared custody. [ 15 ] I would add that the judge made special mention, at paragraph [53], of the fact that the experts did not agree on the relevance of this factor of conflict to the viability of a shared custody order.

This suggests to me that, despite appearances, the experts engaged by the father and mother respectively, were not of a single mind.

This difference of opinion justified further still the judge’s conclusions on her independent inquiry as to whether shared custody was viable and in the best interest of the children. [ 16 ] The petitioner alleges a number of errors of fact in the judge’s assessment of the children’s best interest, including the relevance of the older boy’s verbalizations that he wishes to spend more time with his father and an alleged overemphasis by the judge of the importance of the children spending time together.

These are highly factual considerations in respect of which deference is due: nothing suggests an egregious error in considering the well-being of the children, and the likelihood that this Court would intervene in the exercise of the judge’s discretion, especially at this provisional stage, is low. In the arguments brought forward by the petitioner on these factual matters, I seen none that would have a reasonable prospect of success on appeal. [ 17 ] The consideration of access to justice raised by the petitioner is, of course, a serious one.

But the position he takes on the motion, at least in some measure, presents something of a paradox from the point of view of proportionality. He complains of the costs of a renewed debate before the Superior Court on best interest of the children. But an appeal can also be a costly endeavour. Moreover, an appeal undertaken where the chances of success are low because of the strict standard of review strikes me as an injudicious use of scarce resources, both for the parents and for the justice system.

The parties might take to heart the judge’s comments on the importance of putting cooperation before conflict as well as the legislative injunction, in

article 1 C.C.P., to consider less costly means of dispute resolution than recourse to the courts. But this latter comment is not my reason for dismissing the motion for leave. As noted, I am of the view that an appeal at this stage would have no reasonable chance of success, and that granting leave would not be in the best interests of justice. FOR THE FOREGOING REASONS , the undersigned: [ 18 ] DISMISSES the motion for leave to appeal, without costs given the nature of the dispute. NICHOLAS KASIRER, J.A.