2014 QCCA 390, 2014 QCCA 390

Droit de la famille — 14368 2014 QCCA 390 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N° : 500-09-023600-133 (760-04-010637-123) DATE : FEBRUARY 27, 2014 CORAM : THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. R. Y. APPELLANT - Plaintiff c. D. H. RESPONDENT - Defendant JUDGMENT I INTRODUCTION [ 1 ] This appeal considers the correctness of various orders relating to the custody of two minor children, X, who is now 10 years old, and Y, who is now 6 years old. Their parents, R. Y. and D.

H., separated after having lived together without being married between July of 1998 and February of 2012. [ 2 ] The judgment of the Superior Court rendered on April 25, 2013 by the Honourable Mr. Justice Pierre Béliveau declared that both parties were invested with parental authority and specified certain rights in that respect in favour of Mr. Y.. Ms. H., however, was granted custody of X and Y, with standard access rights in favour of Mr. Y.. [ 3 ] In appeal, Mr. Y. seeks to have the existing custodial rights in favour of Ms.

H. transformed into a shared custody arrangement, and to annul several of the ancillary orders the motion's judge issued. II THE PROCEEDINGS [ 4 ] Not long after the separation of the parties, Mr. Y. initiated a motion for custody of his two daughters along with the right to reside with them in the family residence. The motion's judge was also seized with an amended motion of Ms. H. in which she sought exclusive custody of the children and a long list of ancillary orders. [ 5 ] An interim order of Mayer, J. on May 31, 2012 established a shared custody arrangement with Ms. H. occupying the family residence.

At the same time, Mayer, J. homologated an extensive partial consent the parties had signed that day relating to financial and other matters relating in the main to the children. [ 6 ] This order and the partial consent governed the relationship between the parties when the hearing took place in April of 2013. For present purposes, the most important aspect of that relationship was the order for the shared custody of the children. [ 7 ] At trial, only the parties testified.

The main exhibits (P-9 and D-3) consisted of a lengthy exchange of emails between them from June of 2012 to April of 2013 illustrating the nature of their relationship after the separation, both as it related to their life as a couple and their interaction as parents of two young children. III THE JUDGMENT OF THE SUPERIOR COURT [ 8 ] The motion's judge homologated a consent the parties signed related to various financial issues, and dealt with other such issues

in the course of his reasons. He identified the questions in dispute as being those related to the custody of the children, Mr. Y.'s claim that the children be registered in a French language school, and the financial consequences of whatever custodial arrangement he would eventually put in place. [ 9 ] In the latter respect, the motion's judge took account of the parties' admission that Ms. H. had an annual gross income of $50,000, and that Mr.

Y., while not acknowledging that he earned an equivalent amount, agreed to have that amount imputed to him. [ 10 ] The motion's judge then examined each of the two main issues: custody and the choice of language, English or French, in which the children would receive their education. The disposition of the competing motions also led to various other orders, mostly of a financial nature, eight of which Mr. Y. seeks to have annulled. [ 11 ] The conclusion with respect to the first issue is the main focus of Mr. Y.'s appeal. The essence of the judge's findings of fact is contained within this part of his judgment.

The second issue was resolved in favour of the children receiving their education in English, which Mr. Y. has not challenged in this Court. [ 12 ] With respect to the judge's findings related to custody, they may be summarized as follows: • While noting that the shared custody arrangement in place was logistically possible and that the children were doing well in their educational development, which was an indication that its maintenance would be advantageous to them, the degree of communication between the parties was virtually non-existent.

This state of affairs was not favourable to shared custody without necessarily being a fatal obstacle; • During his examination in chief, Mr. Y. portrayed an image that was consistent with his desire to maintain the shared custody arrangement in place; • His cross-examination, however, showed him to be otherwise, and included his acknowledgement of having insinuated that Ms.

H.'s current companion had been involved in child abuse, and of having sent extremely vulgar emails to her; • He further acknowledged having unilaterally taken to steps to register his daughters in French language schools when neither he nor Ms. H. was sufficiently adept in French to help them with their schoolwork; • His testimony that his earnings were less than $50,000 annually was inconsistent with the lifestyle he enjoyed with Ms. H. and their children; thus seriously undermining his credibility; • His controlling and abusive nature, as described by Ms.

H., was amply demonstrated, and can also be inferred from his refusal to undergo a psychological assessment; • Ms. H. had been the parent most involved in the children's education and in looking after their needs; • Ms. H. did not display any aggressivity to Mr. Y. but rather felt hurt by his attitude both prior to and after the separation, while at the same time recognizing the role he played as her companion and as a father. [ 13 ] The motion's judge accordingly attributed a great deal of credibility to Ms. H. and thus accepted her testimony in its entirety, while rejecting that of Mr. Y..

He concluded that she was the parent most apt to ensure the children's development, and that in light of the controlling nature of Mr.

Y., putting in place a shared custody arrangement would hinder if not render impossible that development as they grew older. [ 14 ] The motion's judge also distinguished a recent Superior Court judgment of Langlois, J. [1] that dealt with similar issues on the basis that each case had to be decided on its own facts, particularly in light of his assessment that their were different findings of fact in the two cases relating to the possible effect of shared custody on the children. [ 15 ] As far as the eight conclusions relating to ancillary relief that Mr.

Y. seeks to annul in appeal are concerned, they relate to the implementation of the shared custody arrangement, including two of which that require Mr. Y. to pay Ms. H. monthly child support of $618.30. IV ANALYSIS AND DISCUSSION [ 16 ] Mr. Y. posits seven manifest errors of fact and five errors of mixed fact and law, as follows: 1) Manifest errors of fact A. Erroneous appreciation of the quality of communications between the parties; B. Erroneous appreciation of admissions during Mr. Y.'s cross-examination; C. Impugning Mr. Y.'s credibility and his sense of responsibility based on his income; D.

Drawing a negative conclusion about Mr. Y. arising out of his refusal to submit to a psychological assessment; E. Having rejected the entirety of Mr. Y.'s testimony; F. Mr. Y.'s controlling character could seriously impair the required collaboration of the parties in the context of a shared custody arrangement;

G. Mr. Y.'s controlling character could impair the development of the children as they grow older and learn to become autonomous. 2) Errors of mixed fact and law A. The fact that the shared custody arrangement worked well is not a predictor that it will work well in the future; B. Exclusive custody should be granted to Ms. H. when taking account of the quality of communications between the parties; C. Granting Ms. H. alone certain attributes of parental authority with Mr. Y.'s corresponding deprivation of such attributes; D. Prohibiting Mr. Y. to be within one kilometre of Ms.

H.'s residence except when picking up or dropping off the children; E. Having mis-appreciated the criteria for the awarding of shared custody. [ 17 ] Mr. Y. acknowledges that the Court is bound to follow the guidance of the Supreme Court of Canada in cases such as Van de Perre v. Edwards [2] and the numerous cases in this Court which require that in a child custody matter, any error attributed to the trial judge be a material one that affected the conclusion of the trial judge. In support of his submission that such errors exist justifying the Court's intervention, Mr.

Y. contends that the facts on which the judge relied: • occurred, for the most part, when the parties were living together; • were related to their conjugal relationship and had nothing to do with the best interests of the children; and, • were exaggerated by the judge in terms of the frequency of their occurrence and their significance. [ 18 ] As for Ms.

H., she disputes the supposedly erroneous character of the judge's conclusions based on the evidence, but, more importantly, adds that to the extent these errors exist, they were not determinative of the outcome. [ 19 ] In this respect, the Court subscribes to the position of Ms. H.. To be sure, another motion's judge might have arrived at a different outcome based on the evidence adduced at trial, but that does not mean that the judge's findings are unsupported by a reasonable

interpretation of the evidence. [ 20 ] For example, while the communications between the parties were at their worst in the immediate aftermath of the break-up, a review of the evidence shows continuing difficulties between them in co-ordinating the everyday activities of the children, including supervision of their scholastic obligations, much of which seems to take place by email exchanges. Nevertheless, the same email exchanges show ongoing difficulties relating to the parties' relationship, which cannot be seen in isolation from their interaction as it relates to the children. [ 21 ] It is apparent that Ms.

H. had difficulty absorbing the break-up of the parties' life together as a couple, just as it is apparent Mr. Y. had difficulty accepting Ms. H.'s choice of a new companion. This is not part of the best possible formula for a shared custody arrangement, independently of the harshness of the motion's judge assessment of the credibility of Mr. Y.. [ 22 ] Moreover, the motion's judge's assessment of the respective credibility of the parties must be seen in the context of the matter with which he was seized: deciding between the options presented to him with respect to the custody of X and Y.

His overriding adjudicative duty is to them, not to their parents. [3] His assessment of that issue, having seen and heard the parties, is necessarily more informed than the reading of a transcript can ever be, absent an error that leaps off the page and is decisive to the outcome. [ 23 ] Mr. Y. has shown no such error. [ 24 ] As far as the specific orders that Mr. Y. seeks to have annulled are concerned, paragraphs [62], [63] and all of its sub- paragraphs, [65], [66], [81] and [82] relate directly to the establishment of Ms. H.'s exclusive custody of the children and the manner in which Mr.

Y.'s rights of access are to be exercised. For the foregoing reasons, these orders will not be annulled. [ 25 ] Mr. Y. also seeks to have annulled paragraphs [61], [69], [70], and [78] of the judge's order.

They are set out below, along with paragraphs [59] and [60] in order to better understand paragraph [61], and paragraphs [67] and [68] in order to better understand paragraph [69]: [59] DÉCLARE que les parties sont toutes deux titulaires de l'autorité parentale et pour plus de certitude et sans restreindre la généralité de ce qui précède, DÉCLARE qu'elles ont toutes deux le droit d'obtenir toutes les informations pertinentes à chacune des enfants relatives au cheminement scolaire et à la santé de chacune d'entre elles; [60] DÉCLARE que le demandeur a droit d'être consulté quant à toutes décisions importantes relatives aux enfants, étant entendu que celles-ci fréquenteront l'école A; [61] DÉCLARE que si le demandeur devait refuser de signer un document nécessaire pour mettre en œuvre une décision prise par la défenderesse quant au cheminement des enfants, cette dernière pourra le faire seule; … [67] AUTHORIZES Defendant to travel alone with the children and without Plaintiff's written authorization when the children are with her pursuant to present judgment, being understood that she must notify Plaintiff at least seven days prior to her departure, such notice containing all relevant informations (sic) relating to such travel; [68] AUTHORIZES Plaintiff to travel alone with the children and without Defendant's written authorization when the children are with him pursuant to present judgment, being understood that he must notify Defendant at least seven days prior to his departure, such

notice containing all relevant informations (sic) relating to such travel; [69] Afin de faciliter la tâche de la défenderesse, ORDONNE au demandeur de signer, si requis de ce faire, tous les documents utiles à cette fin dans les quarante-huit heures de la demande, étant entendu que le défaut de ce faire n'empêchera nullement cette dernière de voyager seule avec les enfants, comme l'autorise le paragraphe précédent; [70] AUTORISE la défenderesse à demander seule l'émission d'un passeport pour chacun des enfants et à signer seule tous les documents requis à cette fin, étant entendu qu'elle devra les remettre au demandeur dans les sept jours de son départ si celui-ci désire amener les enfants à l'étranger.

Ce dernier devra les remettre à la défenderesse dans les sept jours après son retour; … [78] INTERDIT au demandeur de s'approcher à moins de un kilomètre de la résidence de la défenderesse sauf pour les fins de l'échange des enfants. [ 26 ] Dealing first with paragraph [61], it is to be noted that the conclusions in Ms. H.'s amended motion did not seek any such order. More significantly, however, it is insufficiently precise as to its ambit and thus a potential source of future dispute. Moreover, the necessity of such an order is nowhere discussed in the judge's reasoning.

This paragraph will therefore be struck. [ 27 ] Next, paragraphs [69] and [70] relate to documents that may be required when Ms. H. travels with her daughters, including circumstances where she would require a passport for them to enter the United States, where several of her family members live. Since Ms. H. is the custodial parent and the one most likely to need to have one for them, the authorization in her favour is unlikely to be the source of any dispute, and for that reason, should not be struck. [ 28 ] If, however, Ms.

H. has not yet obtained the two passports and refuses to do so (however unlikely that may be), Mr. Y. would be free to seek a new order from a judge of the Superior Court either ordering her to do so or seeking authorization for him to do so. [ 29 ] Finally, there is the order in paragraph [78] prohibiting Mr. Y. to be within one kilometre of Ms. H.'s residence except for the purposes of picking up or dropping off his daughters. Here again, Ms.

H. made no such request in the conclusions of her amended motion, although the issue was raised during her testimony and, apparently, during subsequent discussions that would have occurred between the motion's judge and counsel for the parties, the transcript of which does not form part of the record in this Court. [ 30 ] Ms. H. resists paragraph [78] being struck in appeal. [ 31 ] A restraint of this nature on the freedom of movement of Mr. Y. requires compelling evidence that necessarily would have to have been led by Ms. H., of which there is none.

In this respect, the motion's judge provided a clear means for the exchange of the children to be effected in a manner that would avoid physical contact between the parties. [4] Since they live in close proximity to each other in Hudson, the most innocent reason could lead Mr. Y. to be in breach of this order. For example, it prevents him from dropping off or picking up the children of his new companion at their school. [ 32 ] The Court finds this paragraph to be both unwarranted and excessive, and accordingly it will also be struck.

FOR THESE REASONS, THE COURT: [ 33 ] ALLOWS the appeal in part, without costs; [ 34 ] STRIKES paragraphs [61] and [78] from the disposition in the judgment of the Superior Court. ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. DOMINIQUE BÉLANGER, J.A. Mtre Brigitte Brunet BRIGITTE BRUNET, AVOCATS For the appellant Mtre Manon Hamel For the respondent Date of Hearing : February 26, 2014