2020 QCCA 367, 2020 QCCA 367

Droit de la famille — 20285 2020 QCCA 367 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-028376-192 (500-04-070734-174) DATE: March 3 rd , 2020 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. MICHEL BEAUPRÉ, J.A. BENOÎT MOORE, J.A. P. L. APPELLANT — Defendant v. F. K.

RESPONDENT — Plaintiff JUDGMENT [ 1 ] This is an appeal from a judgment rendered on May 16, 2019 by the Superior Court, District of Montreal (the Honourable Madam Justice Guylaine Duplessis). [ 2 ] That judgment dismissed the appellant’s application to vary custody of the parties’ minor child, X, who is 8 years old, and her subsidiary application, first, to have greater access rights and, second, to be able to exercise those rights within the territory of the [community A] of Town A, where she is domiciled. [1] [ 3 ] For the reasons which follow, the appeal will be allowed in

part in order to increase the appellant’s access rights and allow her to exercise some of them in Town A. [ 4 ] The judge first concluded that there had been no material change warranting a review of the terms of custody established in a judgment rendered by default on July 25, 2017 by another judge of the Superior Court (the Honourable Madam Justice Catherine Mandeville), which judgment awarded custody of the child to the respondent and did not provide for any access rights in favour of the appellant. [ 5 ] Her reasons in that regard are found in paragraphs 29, 30 and 33 to 37 of the judgment: [29] Dans le présent dossier, la preuve ne permet pas de conclure qu’un changement significatif est survenu depuis le prononcé du jugement confiant la garde de l’enfant au père.

En effet, la mère n’invoque aucun changement important dans la situation de l’enfant permettant l’intervention du Tribunal. [30] La mère explique qu’elle ne s’est pas présentée à la cour le 25 juillet 2017 pour contester la demande de garde présentée par le père puisque tous les documents juridiques reçus étaient en français l’empêchant de comprendre la portée des demandes du père. La preuve démontre par ailleurs que la mère a reçu une éducation en français et [dans la langue A].

Cet argument ne relève pas toutefois d’un changement requis pour modifier l’ordonnance de garde. […] [33] La mère soutient également que l’enfant étant sorti de son milieu il perdra sa langue, le cri, ainsi que l’héritage culturel dont il pourrait bénéficier s’il était avec sa mère, cette dernière étant la mieux placée pour perpétuer l’identité culturelle de son fils.

Elle soutient également que l’enfant s’ennuie d’elle et de sa famille maternelle. [34] Il ne s’agit pas d’une situation que le tribunal ne pouvait pas raisonnablement prévoir lorsqu’il a rendu la première ordonnance. [35] La mère soumet qu’elle comprend maintenant l’importance du respect des jugements. Il ne s’agit pas non plus d’un changement pouvant justifier la modification d’une ordonnance de garde. Le respect des jugements constitue une obligation à laquelle est soumise tout justiciable.

Le non-respect d’un jugement n’est pas sans conséquence. [36] Dans le présent dossier, la mère affirme avoir choisi de suivre les conseils de la chef de « bande » qui lui aurait suggéré de ne pas respecter les jugements de la Cour supérieure du Québec. Toutefois, aucune autre preuve que le témoignage de la mère concernant de telles consignes n’est soumise au Tribunal.

[37] Le Tribunal est donc d’avis que les faits soulevés par la mère ne constituent pas des changements importants ou significatifs dans la situation de l’enfant . Conséquemment, la mère n’a pas réussi à franchir le seuil de la première étape du test en deux volets afin que soit ordonnée une modification de la garde de l’enfant. (Emphasis added) [ 6 ] In paragraph 38, the judge added: [38] Mais il y a plus.

Même si le Tribunal avait conclu à l’existence d’un changement significatif lui permettant de passer à la deuxième étape afin d’examiner quelle modalité de garde serait compatible avec l’intérêt de l’enfant, le Tribunal ne modifierait pas l’ordonnance de garde actuellement en vigueur confiant la garde au père et ce, pour les motifs exposés ci-après. [ 7 ] In Van de Perre v.

Edwards , the Supreme Court established the standard of review applicable to appeals of child custody decisions: [2] 13 […] Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts . Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [Emphasis added] [ 8 ] The Court also added the following: 15 As indicated in both Gordon and Hickey , the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors.

In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence . This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (…), an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion.

Without this reasoned belief, the appellate court cannot reconsider the evidence. [Emphasis added; references omitted [ 9 ] In the present case, in maintaining the respondent’s custody of the child X, the judge did not err in law nor did she commit a palpable and overriding error in her appreciation of the facts.

The decision is supported by the evidence. [ 10 ] Given that the distance between the parents’ residences makes shared custody impossible, at least during the school year, the respondent effectively demonstrated at trial that, at least for now, he has a greater and more reliable ability to attend to his son’s academic, social, psychological, medical and dental needs.

The judge’s findings of fact in this regard are set out in paragraphs 39 to 51 of the judgment under appeal and are supported by the evidence. [ 11 ] Incidentally, notwithstanding that the judge concluded there had been no material change, she nevertheless ruled on and established the access rights. While this aspect of the judgment may at first glance seem perplexing, it is explained by the fact that Justice Mandeville did not rule on this issue in her judgment dated July 25, 2017, most likely because the judgment was rendered by default.

The trial judge was therefore well founded in adjudicating this issue. [ 12 ] That having been said, the judge’s decision to only grant the appellant access rights in person to be exercised every second weekend, without the child sleeping over, from Saturday at 10 a.m. to 7:30 p.m. and Sunday from 10 a.m. to 7:30 p.m., and only in Montreal, justifies this Court’s intervention. [ 13 ] First, given the circumstances, the very limited access rights granted to the appellant appear punitive as regards the mother— punishing her for her past conduct, namely, her refusal to comply with the judgment dated July 25, 2017—rather than reflecting a decision made solely in the best interests of the child, as is required.

In determining the conditions of custody of a child, a court should not seek to punish one parent or reward the other. [3] [ 14 ] These limited access rights appear all the more punitive and all the less supported by the evidence given that: - the appellant does not have a car or a driver’s licence and Town A is approximately a 17-hour drive from Town B; - the appellant’s net annual income is approximately $13,000 [4] and exercising her access rights in Town B 26 weekends a year would require transportation and lodging expenditures that are excessive given her financial means; - during the first six years of the child’s very young life, the appellant had sole custody of her son in Town A; - when testifying, the respondent acknowledged that the Town A community has its own culture and customs and that he has [ translation ] “no problem with that”; [5] - the respondent, who is of [origin A] descent and a Muslim, admitted that [ translation ] “the only thing I can do” to preserve his son’s Indigenous culture is to allow him to have contact with his extended Indigenous family; [6] - the respondent admitted that his son misses his grandparents and that he told him that [ translation ] “of course” he could go visit

them in Town A [ translation ] “every time” he had a school break if respondent and appellant agree; [7] - the respondent testified that his son could go to Town A [ translation ] “but not for two months”, [8] and that [ translation ] “X can go to P.’s in Town A, but for two months, there would be a risk that X, that the habits X gave up would all come back”. [9] - the respondent also testified that his son could [ translation ] “leave for three or four weeks on vacation, that’s ok”, [10] but that he was worried that if he returned to Town A on those occasions, he would not come back; [11] - during closing arguments at trial, respondent’s counsel confirmed to the judge that the judge should keep in mind [ translation ] “maintaining X’s Indigenous roots, the importance of maintaining that link, and, it’s totally true, it has to, it has to be that way.” [12] [ 15 ] In Van De Perre v.

Edwards, Bastarache, J., writing for the Court, stated that racial identity is but one factor that may be considered in determining personal identity, adding that the relevancy of this factor depends on the context. [13] Bastarache, J. further stated that race can be a factor in determining the best interests of the child in custody matters because it is connected to the culture, identity and emotional well-being of the child, [14] and he pointed out that biracial children should be encouraged to positively identify with “both racial heritages”. [15] Bastarache, J. concluded as follows: […], the significance of evidence relating to race in any given custody case must be carefully considered by the trial judge. [16] [ 16 ] Unlike the situation in Van De Perre , where Bastarache, J. noted, to the detriment of respondent Edwards, that there had been no evidence at trial indicating that race was an important consideration, nor evidence of the respondent’s racial awareness, [17] in the present case the evidence established that the child had attended kindergarten in Town A in [community A], that at an early age he had started to accompany his extended family into the forest for community hunting activities and that, all in all, he had been exposed in several respects to his [community A] cultural heritage during his first years of life with his mother and her community in Town A. [ 17 ] In paragraph 53 of her judgment, the judge noted the respondent’s desire that his son know about his mother’s culture, but she indicated that one must not be favoured to the detriment of the other. [ 18 ] That having been said, the limited access rights she granted the appellant, without the possibility for the child to continue spending time with his extended family and have contact, within the [community A], with his cultural heritage, with the language, the life style and the customs specific to this culture, are certainly not conducive to him maintaining his biracial heritage.

By obviously failing to consider those important factors, the judge rendered a decision regarding access that is not supported by the evidence and as such, erroneous. [ 19 ] It is therefore appropriate to intervene in order, first, to increase the mother’s access rights and, second, to allow some of those rights to be exercised in Town A. [ 20 ] In the circumstances, her access rights in Town B, however, will continue to be exercised without the child sleeping over, given that the appellant’s place of residence or lodging when she travels to Town B is unknown. [ 21 ] The Court also notes the significant distance between Town B and Town A and the 17-hour drive between the two, as the respondent testified.

Moreover, given that the conclusions of this judgment will state that, unless the parties agree otherwise, they must meet in Town C for purposes of the appellant’s exercise of her access rights in Town A, they shall be required to abide by their duty to cooperate, in the interests of their child, and ensure that the

schedule and conditions for the transportation of X on these occasions are the least disruptive possible under the circumstances, and that his safety is a priority at all times, particularly in winter. [ 22 ] Lastly, with respect to the issue of support, at the hearing neither party requested a modification of the conclusion in the judgment under appeal on that subject. However, given the conclusions of the appeal, for the duration of her 4 weeks summer access rights the appellant will not have to pay the 50 $ monthly support ordered by the judge in first instance.

FOR THESE REASONS, THE COURT: [ 23 ] ALLOWS the appeal in part; [ 24 ] STRIKES paragraph 73 of the Superior Court judgment dated May 16, 2019 as regards the appellant’s access rights; [ 25 ] GRANTS the appellant the following access rights, except as otherwise agreed between the parties: - Every second weekend, in Town B, without the child sleeping over, on Saturday from 10 a.m. to 7:30 p.m. and on Sunday from 10 a.m. to 7:30 p.m.; - When exercising those weekend access rights, the appellant shall pick up the child at the respondent’s home and bring him back there; - Four full weeks in the summer, from noon on the Saturday immediately following the end of classes in June, until the following fourth Saturday at noon, which access rights may be exercised in Town A; - For purposes of the exercise of those summer access rights, unless the parties agree otherwise, they shall meet in Town C at the start of the appellant’s period of access and at the end of her four weeks of access; - Seven consecutive days during the Holidays, in Town A, including Christmas Day, as agreed between the parties or, failing agreement, from December 23 at noon until December 30 at noon; - For purposes of the exercise of those access rights during the Holidays, unless the parties agree otherwise, they shall meet in Town C at the start of the appellant’s period of access and at the end of her week of access;

- During the weeks the appellant does not have access rights, she shall be entitled to have contact with the child through Skype, or if not through Skype, by telephone (at her expense), as agreed between the parties or, failing an agreement, twice a week, on Tuesdays and Fridays, outside school hours; - During the weeks the appellant exercises her access rights, the respondent shall be entitled to have contact with the child through Skype, or if not through Skype, by telephone (at his expense), as agreed between the parties or, failing an agreement, twice a week, on Tuesdays and Fridays; [ 26 ] MODIFIES paragraph 76 of the judgment of first instance to read as follows: [76] ORDONNE à la mère de payer une pension alimentaire de 50 $ par mois ( sauf pour le mois de juillet ) au père pour le bénéfice de l’enfant mineur X à compter du 11 décembre 2018, le tout payable suivant la Loi facilitant le paiement des pensions alimentaires . [ 27 ] The whole without legal costs given the nature of the case.

MARK SCHRAGER, J.A. MICHEL BEAUPRÉ, J.A. BENOÎT MOORE, J.A. Mtre Nicolas Perrault For the appellant Mtre Andréanne Beaudry BAJ Centre-Sud For the respondent Date of hearing: February 20, 2020