2014 QCCA 1050, 2014 QCCA 1050

Droit de la famille — 141178 2014 QCCA 1050 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023927-130 ( 550-04-014279-109 ) MINUTES OF THE HEARING DATE: MAY 8, 2014 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. JACQUES A. LÉGER, J.A. APPELLANT ATTORNEY R. Y. Mtre Miriam Grassby GRASSBY & ASSOCIÉS RESPONDENT ATTORNEY E. H. Mtre Anne France Gagnon GAGNON LAVALLÉE AVOCATES

In appeal from a judgment rendered on August 26, 2013 (transcription on October 23, 2013) by the Honourable Madam Justice Suzanne Tessier of the Superior Court, District of Gatineau. Nature of the appeal : Family – Custody Court Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 09:34 : Commencement of the hearing. 09:35: Submissions by Mtre Grassby. 10:26: Recess of the hearing. 10:35: Resumption of the hearing. 10:35: The Court informs Mtre Anne France Gagnon that it is not necessary to plead. 10:36: UNANIMOUS JUDGMENT rendered – see page 3 for reasons. 10:36: Conclusion of the hearing. Linda Côté Court Clerk BY THE COURT JUDGMENT

[ 1 ] The appeal concerns the custody of the parties’ child, aged 5 and a half, the parties having ceased to live together in the fall of 2010. [ 2 ] Pending trial, the mother, Appellant, had custody of the child, and the Respondent exercised visiting rights in accordance with an agreement on interim measures dated December 17, 2010.

The child’s time spent with each parent was split on a 65%/35% basis. [ 3 ] In a detailed and careful judgment, the first judge considered the whole of the evidence and came to the conclusion that shared custody, on a 50%/50% of time basis, was in the child’s best interest. [ 4 ] The Appellant raises four grounds of appeal: that the trial judge would have erred in evaluating the Respondent’s parenting capacities, that she would have underestimated the level of conflict between the parties and overestimated their capacity to communicate, that she would have accepted the conclusions of an expert report despite the major flaws affecting it and that she would have misinterpreted the cause of the child’s distress (including separation anxiety at the time of exchange and sleeplessness when at the mother’s). [ 5 ] The appeal cannot succeed. [ 6 ] The norm for intervention by an appellate court in such matters is stringent.

First instance decisions in custody and access cases are intrinsically discretionary, which calls for a high degree of deference. An appeal court may intervene only in the presence of an error of law or of a manifest and determining error on facts. Neither is present here. [ 7 ] The appeal raises issues that relate solely to the

interpretation of the evidence by the first judge. 1. Parental capacity [ 8 ] It is clear from the judgment that the trial judge took into account the global family situation of the child. She observed that the mother had been the dominant parental figure for the child, but that the father had taken his responsibilities as such to heart since the separation. She evaluated both parents’ strengths and weaknesses, before and since the separation. [ 9 ] The first judge concluded that both parties were capable parents.

Her conclusion regarding the parental capacity of the father is based not only on the mother’s testimony in this respect, but on the evidence as whole. The Appellant fails to demonstrate any error in the judge’s appreciation of this aspect of the case. 2. Communications [ 10 ] The judge had the opportunity to observe the parties’ behaviour and attitude during a three day hearing. From that and from the rest of the evidence, she concluded that they were communicating well enough with one another to allow shared custody. Her reasons in this respect are sound. 3.

The expert report [ 11 ] The evidence has shown that the expert’s report, which is not contradicted in several aspects, did suffer from some methodological flaws. Thus, the judge did not consider the result of tests administered by the expert, but accepted that part of her professional opinion which was based on 30 hours of clinical observation. While expressing appropriate reserves, she rightly considered such opinion. 4. The cause of the child’s distress

[ 12 ] The fourth and final ground of appeal must also be dismissed. The trial judge took several elements into account in concluding that shared custody should be imposed. The capacity of the child to adapt to each parent’s life environment and the development of the child are no doubt relevant. Despite some chronic health problems, his development was superior to the norm. He was described as calm and mature, to the point of being able to attend kindergarten despite being underage. His parents no doubt have met his needs in a most positive fashion.

While the evidence shows that there have been differences in the level of their respective involvement with the child, the judgment clearly shows that the judge was aware of that factor and nevertheless concluded that it would be in the child’s interest to benefit from the equal presence of each.

In the circumstances, shared custody would favour an optimal developmental outcome for the child. [ 13 ] To sum up, the judge felt that the child had an excellent relation with both parents and benefited from their complementary qualities. [ 14 ] One cannot reproach the judge for not having analyzed separately each individual instance of conflict about which the parties testified. The judge considered the whole of the evidence and appreciated the situation fully without getting bogged down in details. [ 15 ] Absent any error that could give rise to the Court’s intervention, the appeal must be dismissed.

FOR THESE REASONS, THE COURT: [ 16 ] DISMISSES the appeal, without costs, seeing the nature of the case. NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. JACQUES A. LÉGER, J.A.