2021 QCCA 490, 2021 QCCA 490

Droit de la famille — 21387 2021 QCCA 490 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029362-217 ( 760-12-026187-199 ) MINUTES OF HEARING DATE: March 10, 2021 THE HONOURABLE STÉPHANE SANSFAÇON, J.A. APPELLANT COUNSEL J. R. Unrepresented By videoconference RESPONDENT COUNSEL H. B. Mtre NICOLAS LAPIERRE ( Brigitte Brunet avocats ) By videoconference DESCRIPTION: Application to suspend provisional execution (Art. 660 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 9:28 Commencement of the hearing. Identification of parties. 9:29 Submissions by Mr R.. 9:40 Submissions by Mtre Lapierre. 9:47 Reply by Mr R..

9:53 BY THE JUDGE: Judgment will be rendered during the day and will be sent to the parties. Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] On January 20, 2021, the Superior Court (the Honourable Mr. Justice Martin Castonguay) rendered a final judgment of divorce that, among other conclusions, granted the custody of the parties’ minor child to the respondent and ordered the following: [15] GRANTS the [appellant] access rights toward his minor child X by mutual agreement between the parties; [ 2 ] The appellant appealed from that conclusion.

He now asks me to suspend its execution pending the appeal. [ 3 ] According to art. 660 C.C.P ., provisional execution in matters of child or spousal support, child custody (including access rights) and parental authority is the rule. A stay may be ordered, but remains an exceptional measure. It will be granted with caution, only when the following cumulative conditions are met: (1) apparent weaknesses in the judgment appealed from or a serious question of law to be discussed, (2) risk of serious and irreparable prejudice that must be avoided, and (3) balance of inconvenience in favour of the stay.

In family matters, due to the vast discretionary powers of the trial judge, provisional execution will be stayed only in the most exceptional circumstances. The interests of the child will be primary in assessing these conditions. [1] [ 4 ] In her Introductory Demand in Divorce filed in October 2019, the respondent asked that access rights be granted to the appellant according to a proposed schedule. However, on the day of the trial, the case proceeded in the absence of the appellant who, the day before, had informed the judge and the respondent that he would not attend the hearing.

The judge heard the evidence and the testimony of the respondent and granted her verbal application that the access rights be granted as requested. [ 5 ] The appellant alleges that in doing so, the judge breached the fundamental principle of natural justice as he failed to observe the rules expressed by the maxim audi alteram partem and due process. He adds that he was precluded from adducing any evidence and his legal right to a fair and equitable hearing was entirely disregarded. [ 6 ] On January 20, 2021, the appellant chose, for personal reasons, not to attend his trial after having been duly convened.

The judge was therefore authorized, after having heard the evidence then presented, to grant the respondent’s verbal application to amend her original demand and grant the appellant access rights that differed from those that had initially been requested and granted at the interim stages with the consent of both parties “without prejudice to their respective rights that they will be able to argue in front of this Court on January 23, 2020”.

The judge was not bound by the terms of the interim judgments. [ 7 ] Therefore, the appellant shows no apparent weakness in the judgment under appeal nor a serious question of law to be discussed at this stage of the proceedings, nor does he show a risk of serious and irreparable prejudice that must be avoided. [ 8 ] One final note. The judge did not prohibit the appellant from seeing his child. He indicated that his access to him would occur upon agreement between the parties.

If the appellant believes that the respondent is refusing such access without valid reason, he is not precluded from presenting an application to the Superior Court to have the mother’s position reviewed. FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the appellant’s Application to suspend provisional execution; [ 10 ] Legal costs to be borne by each party pursuant to art. 340 C.C.P. STÉPHANE SANSFAÇON, J.A.