2010 QCCA 2143, 2010 QCCA 2143

Unofficial English Translation Droit de la famille — 103138 2010 QCCA 2143 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL NO.: 500-09-020684-106 (505-12-030001-062) RECORD OF PROCEEDINGS DATE: November 18, 2010 CORAM: THE HONOURABLE JULIE DUTIL, J.A. LORNE GIROUX, J.A. JACQUES A. LÉGER, J.A. APPELLANT COUNSEL E.K. Mtre Ève Lapointe NOËL & ASSOCIÉS RESPONDENT COUNSEL I.K. Mtre Rosalia Giarratano MONTEROSSO GIROUX

On appeal from a judgment rendered on April 19, 2010, by the Superior Court, District of Longueuil (the Honourable Chantal Masse). Appellant’s amended motion to adduce indispensable new evidence referred by a panel of the Court on July 8, 2010. Appellant’s motion to reject exhibits in support of the respondent’s statement. Respondent’s motion to adduce indispensable new evidence. NATURE OF THE APPEAL : Family – Child custody Court Clerk: Robert Osadchuck Room: Pierre-Basile-Mignault HEARING November 18, 2010 2:07 p.m. Start of hearing 2: 07 p.m. Submissions of Mtre Lapointe 2:55 p.m.

Submissions of Mtre Giarratano 3:19 p.m. Reply of Mtre Lapointe 3:35 p.m. Suspension of hearing 4:02 p.m. Hearing resumed 4:02 p.m. Per the Court: the motions to adduce new evidence are dismissed without costs; The appellant’s motion to reject exhibits in support of the respondent’s statement is dismissed because it is moot; The appeal is dismissed without costs. The reasons for the ruling will be subsequently filed. November 19, 2010 The reasons for the ruling are sent to counsel today. Robert Osadchuck Court Clerk PER THE COURT

RULING On the motions to adduce new evidence and the appellant’s motion to reject exhibits in support of the respondent's statement: [ 1 ] Pursuant to

article 509 C.C.P. , new evidence is allowed only on the following conditions: 1. It must be new; 2. It must be indispensable; 3. The circumstances must be exceptional; and 4.

The interests of justice must require that the evidence be accepted. [1] [ 2 ] In addition, because the appellate court must determine whether the judgment of the first instance is well founded, evidence subsequent to it will be permitted only to prevent a flagrant injustice [2] even if, in family matters, a very brief update on the situation is frequently obtained from the parties in an informal manner at the hearing. [ 3 ] The Court is of the opinion that the motions by both parties to adduce new evidence do not meet the requirements of

article 509 C.C.P . On appeal: [ 4 ] The appellant is appealing a judgment of the Superior Court, rendered on April 19, 2010, by the Honourable Chantal Masse, who allowed the respondent’s motion and gave her custody of the minor child, X. Moreover, the judge authorized the respondent to move to Mexico, specifically to Monclova Coah, at the end of the 2009-2010 school year. [ 5 ] The intervention standard of appellate courts is especially severe regarding child custody, as the Supreme Court emphasizes in Van de Perre v. Edwards citing Hickey v.

Hickey. [3] Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. [ 6 ] The appellant criticizes the trial judge for having deemed the intention to move to Monclova Coah, Mexico, to be a material change justifying modification of the temporary custody order.

He adds that the judge also took into account the fact that X had difficulty adapting to shared custody and that these difficulties constituted a material change. [ 7 ] For the appellant, no preponderant evidence of X’s adaptation difficulties has been submitted to the court. Accordingly, the only change considered by the judge was that of the mother’s prospective move. According to the teachings of Gordon v. Goertz , [4] however, the matter of the proposed move must be central to the analysis by the judge who determines whether it is in the child’s interest.

This matter must not be complementary to that of custody. [ 8 ] Moreover, the appellant asserts that the trial judge applied a presumption in favour of the respondent to whom she intended to award custody, which goes against the criteria developed by the Supreme Court. [5] [ 9 ] It appears from the file that no custody order had been made in this matter, with the exception of temporary consent to shared custody confirmed by the special hearing clerk on November 27, 2008. This agreement was signed within the ambit of the petition for divorce, in which the respondent asked for custody of the child, X.

It was necessary pending the psychosocial expertise report ordered by the court. [ 10 ] To award custody, the judge could take into account the observations of the expert Trottier as a result of the shared custody that had taken place for one and a half years.

Moreover, she was justified in considering the appellant’s alienating behaviour, for he kept the child during two three-month periods and prevented her from seeing the respondent. [ 11 ] As for the appellant’s argument that the judge applied a presumption in favour of the respondent to determine whether the move was in the best interests of X, it is poorly founded. [ 12 ] The judge proceeded in two stages. She first concluded that it was in the interest of X that custody be given to the respondent.

Second, even if she considered the two aspects of the motion to be interrelated, she analyzed the evidence to determine whether it was also in the child’s best interests to move to Mexico with her mother. [ 13 ] She did not commit any error by proceeding in this way. [ 14 ] The appellant also asserts that the judge erred in fact and in law in her application of the principles set out in Gordon v. Goertz . This ground has to be rejected. [ 15 ] In a judgment in which she carefully analyzes the evidence, the judge explains her reasons for being of the opinion that it is in

the best interests of X that the respondent be able to move with her to Mexico. She bases her reasoning on the teachings of the Supreme Court . [ 16 ] It appears clear from the judgment that the judge accords the appellant little credibility. She says so several times. Even though she believes that he has a good relationship with X, she is of the opinion that, if the child stays in Quebec, the evidence shows a risk of parental alienation.

The appellant’s behaviour in recent months indicated that this possibility existed and justified the judge’s conclusions, taking into account all the evidence. [ 17 ] The judge also believes that the reasons cited by the respondent for the move to Mexico are legitimate. She lived in that country until age 40 and her entire family is still there.

Moreover, the judge considers the respondent credible regarding her explanation of the reasons for her move to Quebec in 2003 and she does not believe those given by the appellant. [ 18 ] It is the respondent who has supported the family since her marriage, whereas the appellant has never held a job. She has had to use her savings to cover expenses and, despite her efforts, has never succeeded in starting up a business in Quebec.

Her brother, who oversees a large business in Monclova Coah, Mexico, has offered her a position as vice-president at a net salary of US$10,000 a month, plus a house, a car and other benefits. The business employs about 1,500 people. The respondent explained that the job would enable her to earn a good living for her family, whereas if she remains in Quebec, she will have to continue drawing on her savings. [ 19 ] The judge also considers the fact that X already speaks four languages, including Spanish.

She is aware that the child, who is fragile, will have to adapt to a new environment and that her contact with the appellant will be reduced.

She is convinced, however, that with the assistance of her mother and her brothers the transition should be a success. [ 20 ] The judge properly examined the matter from all angles, and the Court believes that she did not err in deciding as she did. [ 21 ] Finally, the appellant’s criticizes the judge for not having followed the recommendations of the expert Trottier regarding custody in the event that the respondent moves to Mexico. [ 22 ] The judge, who was not bound by the expert’s report, properly justified her reasons for not retaining her conclusions regarding custody of the child if the respondent moves to Mexico.

The appellant has demonstrated no error justifying the Court’s intervention. FOR THESE REASONS THE COURT: [ 23 ] REJECTS the motions for permission to adduce new evidence, without costs, given the nature of the dispute; [ 24 ] REJECTS the appellant’s motion to reject exhibits in support of the respondent’s statement because they have become moot; [ 25 ] REJECTS the appeal without costs, given the nature of the dispute. JULIE DUTIL, J.A. LORNE GIROUX, J.A. JACQUES A. LÉGER, J.A.