2019 QCCA 2181, 2019 QCCA 2181

Droit de la famille — 192609 2019 QCCA 2181 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028725-190 (500-04-074839-193) DATE: December 17, 2019 BEFORE THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. K. S. APPLICANT – Plaintiff v. M. SA. RESPONDENT – Defendant JUDGMENT [ 1 ] The Appellant, K.

S., is seeking leave to appeal from a judgment of the Superior Court rendered in the course of a proceeding and the suspension of the execution of that judgment pending the appeal. *** [ 2 ] The parties were in a relationship for 11 years and cohabited in Town A from 2011 until their separation in July 2019. [ 3 ] In […] 2016, twins were born from this relationship. [ 4 ] Since their birth, the children were at home with their mother while the Respondent, Mr. Sa., was at work three to four days a week, spending the rest of the week with the children and Ms.

S.. [ 5 ] The parties went to mediation in September 2019, but no agreement was reached. [ 6 ] On October 7, 2019, Ms. S. filed an “ Application for permission to relocate to the [Country A] with the minor children on the merits, interim custody, child support, provision for costs and for a safeguard order ” in which she asked, among other things, for the custody of the children, offering Mr. Sa. access rights every weekend. [ 7 ] She supported her request with a long and detailed affidavit in which she explained the reasons why she should be granted custody and why shared custody should not be ordered.

Basically, she explained that she had been the primary caregiver since the children’s birth and expressed the view that Mr. Sa. was not responsible enough and that the children would be at risk with him. [ 8 ] Mr. Sa. answered by instituting an “ Application for joint custody, child support and interim order”. He also filed a detailed affidavit in which he explained his own view of the situation and suggested that although Ms.

S. was a very good mother, she was simply overprotective of the children. [ 9 ] A hearing took place on November 6, 2019. [ 10 ] On the same day, the Superior Court (the Honourable Justice Christian J. Brossard) issued a safeguard order, valid until February 21, 2020, in which he ordered and implemented gradually shared custody [on a 2-2-5-5 rotation basis]. [ 11 ] Both parties have respected that judgment since it was issued and, as such, joint custody has been in place since last week. [ 12 ] It is from this safeguard order that Ms. S. is now seeking leave to appeal and a suspension of execution.

In short, she argues that the judge, contrary to the children’s best interest, changed the status quo and ordered joint custody without even considering the applicable criteria. She adds that he did so without giving her a fair and equitable opportunity to argue her position, since he did not look at the exhibits and did not allow counsel to present their arguments. He awarded joint custody “on the fly” she says. *** On the motion for leave to appeal [ 13 ] The judgment having been rendered in the course of the proceeding, both parties agree that the motion for leave is governed by

article 31 C.C.P .:

31. Le jugement de la Cour supérieure ou de la Cour du Québec rendu en cours d’instance, y compris pendant l’instruction, peut faire l’objet d’un appel de plein droit s’il rejette une objection à la preuve fondée sur le devoir de discrétion du fonctionnaire de l’État, sur le respect du secret professionnel ou sur la protection de la confidentialité d’une source journalistique. Il peut également faire l’objet d’un appel sur permission d’un juge de la Cour d’appel, si ce dernier estime que ce jugement décide en

partie du litige ou cause un préjudice irrémédiable à une partie, y compris s’il accueille une objection à la preuve. Le jugement doit être porté en appel sans délai. L’appel ne suspend pas l’instance à moins qu’un juge d’appel ne l’ordonne; cependant, si le jugement est rendu en cours d’instruction, l’appel ne suspend pas celle- ci; le jugement au fond ne peut toutefois être rendu ou, le cas échéant, la preuve concernée entendue avant la décision de la cour.

Tout autre jugement rendu en cours d’instruction, à l’exception de celui qui accueille une objection à la preuve, ne peut être mis en question que sur l’appel du jugement au fond. 31. A judgment of the Superior Court or the Court of Québec rendered in the course of a proceeding, including during a trial, is appealable as of right if it disallows an objection to evidence based on the duty of discretion of public servants, on professional secrecy or on the protection of the confidentiality of a journalistic source.

Such a judgment may be appealed with leave of a judge of the Court of Appeal if the judge considers that it determines part of the dispute or causes irremediable injury to a party, including if it allows an objection to evidence. The judgment must be appealed without delay. The appeal does not stay the proceeding unless a judge of the Court of Appeal so orders. If the judgment was rendered in the course of the trial, the appeal does not stay the trial; however, judgment on the merits cannot be rendered nor, if applicable, the evidence concerned heard until the decision on the appeal is rendered.

Any other judgment rendered in the course of a trial, except one that allows an objection to evidence, may only be challenged on an appeal against the judgment on the merits. [ 14 ] As such, leave can be granted if the judgment determines part of the dispute or causes irremediable injury to a party.

I also have to consider the interests of justice (art. 9 C.C.P .) and the principle of proportionality (art. 18 C.C.P. ) before granting leave. [1] [ 15 ] It is well established that leave to appeal safeguard orders is rarely granted, even if an error of fact or of law has been made, since they are discretionary, issued for a limited period of time and can be revised. [2] Furthermore, a safeguard order does not bind the judge who will decide the matter on the merits (nor the judge who may be seized of an application to renew it): [11] The jurisprudence of this Court is plain that it will only intervene to disturb safeguard order in exceptional circumstances.

Because of the advantage that a motions judge has in hearing the safeguard order first hand, appellate courts should show deference in respect of the exercise of motion judge’s discretionary powers to respond to the urgent problem of meeting on-going family needs during the proceedings. [3] [ 16 ] As such, these orders are generally said not to decide the dispute in part or cause irremediable injury to a party and it is only under exceptional circumstances that leave will be granted. [4] [ 17 ] It is also a well-known principle that trial judges have a great deal of discretion in deciding custody matters and that, as such, it is also only in exceptional circumstances that the Court will intervene in such judgments. [5] [ 18 ] Given that the judgment the Appellant seeks to appeal is a safeguard order in a matter of child custody, her burden is incontestably a heavy one. *** [ 19 ] For the reasons mentioned hereafter, I am of the view that the circumstances here are not exceptional enough to justify granting leave. [ 20 ] While it is true that the judge should have permitted the attorneys to present oral arguments, it is insufficient, in the circumstances, to conclude that Ms.

S. was not given a fair and equitable opportunity to argue her position. [ 21 ] The minutes of the hearing show that the parties were before the Court from 12:29 p.m. until 1 p.m. and from 3:17 p.m. to 4:30 p.m. No witnesses were heard but, as I said, lengthy affidavits were already in the Court record.

[ 22 ] In his reasons, the trial judge made it clear that he had taken cognizance of both applications and had read the affidavits at length. He also had discussions with counsel during a hearing that lasted almost 2 hours. [ 23 ] Ms. S.’s affidavit contains more than 60 paragraphs in which she described, with details, various events that, in her opinion, justified her request for sole custody. Various exhibits were also attached to this affidavit and reviewed by the judge.

Those that he refused to review were notified to the opposing party and filed into the record at 4:30 on the eve of the hearing. [ 24 ] In that context, and keeping in mind that the time that one judge can devote to an application for a safeguard order is limited, I am of the view that she had a fair opportunity to present her case. [ 25 ] That being said, may the safeguard order cause irremediable injury to the children? [ 26 ] I do not think so. [ 27 ] Mrs.

S. argues that they are at risk with their father, who is not responsible enough. [ 28 ] In that context, I have reviewed the affidavits as well as the exhibits and, even if I take for granted the facts alleged by her, I do not accept her proposition. [ 29 ] Those facts, in my opinion, do not give rise to serious concerns for the security and safety of the children. No parent is perfect and this is all these facts show: a lack of perfection. They do not suggest an irresponsible father, far from that. [ 30 ] Ms.

S.’s proposition in that respect is also very difficult to reconcile with the idea that she has offered to leave the children with their father every weekend, from Friday at 1 p.m. to Sunday at 2 p.m. [ 31 ] All in all, there is nothing to suggest that the judge’s decision is unreasonable and there are no exceptional circumstances that would justify the Court’s intervention. Leave, consequently, must be denied. [ 32 ] Since leave is refused, the motion to suspend the execution of the judgment has no object.

FOR THESE REASONS, THE UNDERSIGNED: [ 33 ] DISMISSES the Motion for Leave to Appeal; [ 34 ] DECLARES that the Motion to Suspend Execution of the Judgment Pending Appeal has no object; [ 35 ] WITHOUT COSTS given the nature of the file. MARIE-JOSÉE HOGUE, J.A. Mtre Linda Schachter Mtre Jonathan Shulak DEVINE SCHACHTER POLAK For the Applicant Mtre Lucilia Maria Da Silva Santos For the Respondent Date of hearing: December 13, 2019