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Droit de la famille — 161621, 2016 QCCS 3146 (CanLII)

July 6, 2016

Issue: How should the custody and access rights to the children be established?  Complete Decision.

The Facts: The parties were married September 16, 2006. Four children were born from their union.  On January 9, 2014 the parties separated. Under their July 2014 agreement, the mother has custody of the children and the father has access rights every second weekend. Since June 2015, the father resides close to the school that the children attend.  The father asks for shared custody.  The mother contests.

Decision: The Court must evaluate the modalities of child custody to be awarded in function of the criteria established by the Court of Appeal, some of which are: the stability of the child; the capacity of the parents to communicate and the absence of conflicts.

The proof demonstrates that since the separation the father has had little involvement in the educational and medical matters of the children. The mother continues to assume alone the required follow-up in this regard. The mother keeps the father informed at the opportune time, however to date, the father has not organized himself to be present at the medical appointments of the children.

The father has great difficulty in accepting that he has the responsibility to assume his obligation of support towards the children.  He threatens to quit his employment to avoid paying support for the children.  The shared custody that the father asks for is directly linked to his desire to reduce his support payments for the children.

At this time, the communications between the parties are not constructive and do not favour establishing shared custody which requires a minimum degree of openness and communication focused on the needs of the children.  The Court maintains custody with the mother and grants the father access rights every second weekend.