2018 QCCA 806, 2018 QCCA 806

Droit de la famille — 181055 2018 QCCA 806 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027465-186 (500-12-305449-104) DATE: May 15, 2018 IN THE PRESENCE OF THE HONOURABLE ROBERT M. MAINVILLE, J.A. J. L. APPELLANT — Plaintiff v. C. A. RESPONDENT — Defendant and THE CHILD IMPLEADED PARTY — Impleaded party JUDGMENT [ 1 ] The appellant father appeals from a judgment rendered at a hearing held March 28, 2018, presided by the Honourable Kirkland Casgrain of the Superior Court, District of Montreal, which (

a) granted full custody of the parties’ minor child Y (born [...], 2006) to the respondent mother; (

b) prohibited any and all contact between the appellant father and the child unless the child so wishes; and (

c) canceled the child support payments the respondent mother had been paying to the appellant father. [ 2 ] The appellant father applies for a stay of the provisional execution of this judgment. [ 3 ] The application for a stay was heard on May 3, 2018, but judgment was reserved until May 15, 2018 to allow the parties to reach a mutually satisfactory agreement. However, on May 7, 2018 the attorney representing the respondent mother wrote to inform the Court that the respondent would not be party to such an agreement. Consequently, since the delay to reach a settlement has now expired, I must now render judgment on the application. * * * * * [ 4 ]

Article 660 of the Code of Civil Procedure provides for provisional execution as of right of a judgment determining child custody arrangements. Although stays may be ordered pursuant to the final paragraph of

article 660, they remain exceptional.

A stay is to be applied restrictively and with caution, in light of the presumption of validity benefiting first instance judgments and also considering that granting stays too liberally would frustrate the very purpose for which the law provides for provisional execution in such matters: Droit de la famille — 172786 , 2016 QCCA 1853 , para. 3 . [ 5 ] A stay will therefore be granted only when the following criteria are satisfied: (1) there is an apparent weakness in the judgment under appeal or a serious question of law is at issue; (2) a serious and irreparable prejudice must be avoided; and (3) the balance of inconvenience favours granting the stay.

Due to the sweeping discretionary powers of trial judges and the exacting standard of appellate review in custody matters, provisional execution will be stayed in the most exceptional of circumstances only: Droit de la famille — 17607 , 2017 QCCA 482 , para. 2 ; Droit de la famille — 172786 , 2016 QCCA 1853 , para. 3 . In custody and access matters, the interest of the child will be the primary consideration in assessing these criteria, as

article 33 of the Civil Code of Quebec specifically provides: Droit de la famille — 161548 , 2016 QCCA 1101 , para. 3 . * * * * * [ 6 ] These criteria are met in this case. [ 7 ] The minutes of the hearing before the Superior Court indicate that a trial initially scheduled for a two-day hearing was conducted in less than 30 minutes, during which a single witness – the minor child Y – was heard in camera and outside the presence of the parties before judgment was rendered from the bench.

The effect of that judgment was to nullify a previous custody order rendered by Justice Carol Cohen on May 14, 2015 following five days of hearings involving multiple witnesses, including experts. [ 8 ] The grounds of appeal raised by the appellant father concern breaches of principles of natural justice, including infringement of his right to be heard ( audi alteram partem ); the refusal to hear witnesses and evidence; unfair conduct of the trial and the improper use of judicial discretion. These are all serious grounds which satisfy the first criteria for granting a stay and which, if retained, would justify

reversing the judgment under appeal and potentially ordering a new hearing: Droit de la famille — 16784 , 2016 QCCA 582 , paras. 12- 13 ; Droit de la famille — 12272 , 2012 QCCA 322 , paras. 28-35 . [ 9 ] As noted by both Justice Cohen in her May 14, 2015 judgment and by Justice Senécal in his November 15, 2011 judgment, there has been intense and acrimonious litigation between the parties since their separation in 2010 respecting custody and access to their two children, X (born [...], 1999 and now 18 years old) and Y (born [...], 2006 and now 12 years old).

There is no doubt that the relationship between the parties has been both toxic and troubling. There have been numerous judgments in this file and many experts have been involved in preparing lengthy reports. There have also been numerous interventions by Youth Protection and the police – largely at the request of the respondent mother – all of which have concluded that the complaints made against the appellant father were unfounded. [ 10 ] In his lengthy judgment of September 2, 2011 (written reasons dated November 15, 2011), rendered after three days of hearings, Justice Senécal roundly criticized both parents.

He nevertheless concluded that a joint custody arrangement was in the best interests of the children. He also ruled that should the joint custody arrangement fail, sole custody of the children should be granted to the appellant father: [73] Pourquoi confier la garde au père si la garde partagée n’est pas possible? [74] Parce que les enfants lui sont très attachés. L’âge de X est particulièrement important. Par ailleurs il ne faut pas séparer les enfants. [75] Le père a la capacité de s’occuper des enfants. La Cour a été frappée par la façon dont il a parlé d’eux lorsqu’il a témoigné.

Il démontre qu’il les connaît bien et connaît leurs besoins. Il est très pratique et très terre-à-terre. […] [76] La Cour ne peut pas non plus ignorer les attitudes de la mère, pas pour la punir ou la récompenser, mais parce que ses attitudes ont une incidence sur les enfants actuellement. Couper les ponts avec monsieur. Couper les enfants de leur père, ne pas informer monsieur, tout cela a des conséquences pour les enfants. Au contraire, monsieur a davantage de capacités à ces niveaux. Il ne cherche pas à exclure madame de la vie des enfants.

Le fait qu’il insiste pour que la garde soit partagée plutôt qu’exclusive en sa faveur est un bon exemple. [77] Many reactions of the mother towards the father were in the past inappropriate. I don’t know if she acted in good faith. Mr. Avellino says in his assessment that the mother tried consciously or unconsciously to put the father in a bad situation in front of the Court. It is written that “ Mrs. A. may be attempting to place Mr. L. in an unfavourable light ”. I don’t know.

But it was inappropriate for sure. […] […] [80] Madame a montré une certaine insouciance à certains moments pour différentes choses matérielles, mais également concernant les enfants. [82] S’il devait y avoir garde exclusive, ce devrait être en faveur de monsieur. Mais on n’en est pas là, je l’espère. [83] Je crois que la formule une semaine/une semaine est la formule appropriée. C’est la formule qui sera retenue parce que c’est la plus susceptible de répondre aux besoins des enfants. Le va-et-vient actuel ne me semble pas adéquat.

Il n’est pas non plus approprié que les enfants soient tous les week-ends avec un parent et la semaine avec l’autre. Il ne faut pas que ce soit toujours le même qui s’occupe du soin quotidien des enfants et de faire la discipline, ou au contraire d’avoir des loisirs avec les enfants. […] [ 11 ] This judgment did not, however, slow the progress of litigation, as both parties continued to resort to legal proceedings. Nevertheless, in February 2012 and March 2013, the parties signed two consent agreements homologated by Justice Roy.

This judgment and the consent agreements confirmed Justice Senécal’s joint custody order. The parties also gave a joint mandate to psychologist Linda Greenberg to prepare a report regarding custody of and access to both children. [ 12 ] In the meantime, X, the parties’ eldest son, continued to be in conflict with the respondent mother and, as of November 2013, ended up living exclusively with the appellant father. The joint custody arrangement continued on an alternating weekly basis for Y. [ 13 ] Psychologist Greenberg’s 139-page report, based on interviews concluded in January 2014, was filed in March 2014.

The expert recommended that sole custody of both children be given to the appellant father, leading to additional custody litigation and the involvement of other experts. This gave rise to Justice Cohen’s 34-page judgment, rendered on May 14, 2015 after five days of hearings. This judgment granted the appellant father sole custody of X and continued the joint custody arrangement on an alternating weekly basis for Y. It is useful to reproduce certain excerpts from Justice Cohen’s judgment: [108] There is no doubt that the situation between the parents is toxic and troubling.

The father uses language in his emails which is unfortunate, to say the least, whereas the mother takes unilateral actions involving third parties and makes threats which are harmful to the children.

Both seem more preoccupied with their “conflicting custody battle”, namely with this never-ending litigation, than with the best interests of the children who, as noted above, are nevertheless thriving, doing well in school and managing to get on with their lives, something their parents cannot seem to do so. [109] It is the opinion of the undersigned that the only thing that will end this toxic situation is an end to the present litigation, with a clear sanction against any further proceedings in which past events can be dredged up once again, as well as an interdiction against communicating the content of these proceedings, judgments, reports, to the children or to any third party, including medical personnel. (…)

[111] As a result of all of the foregoing, as well as the balance of the evidence heard over 5 days and the hundreds of exhibits and reports produced, the Court has reached the following conclusions as to custody. [112] It is obvious to the undersigned that it is the status quo which has been shown to be in the children’s best interests, namely joint custody of Y and custody of X with the father, provided of course that the parents learn to communicate more effectively with respect to Y’s sporting activities and medical treatments, and provided that the father encourages contact between X and his mother, assuming as well that the end of the litigation and the present judgment will convince her to refrain from any further discussions with the child as to custody, access or her opinions of his father. [113] It is equally obvious that X must immediately commence seeing his mother, with a view to possibly reinstating access, at least every other weekend when she has Y.

The undersigned is confident that this will be possible once this protracted litigation comes to an end, with the encouragement of both parents, namely with the father urging X to see his mother and even driving him there and with the mother reaching out to her son without recriminations or anger. [114] There appears to be no need for either child to see any psychologist or other expert of that nature, unless a child expresses a need to do so, which should be expressed to his attorney and not to either of the parents.

The attorneys for the children will be the only ones to explain the present judgment to them and will indicate that it is best that they also not discuss this file with either of their parents or with any third parties. [115] The Court reiterates that this custody arrangement — joint custody of Y and sole custody of X to the father — is precisely what was contemplated by Justice Senécal 3 ½ years ago in his judgment cited above. [116] The undersigned sees nothing whatsoever in this file which justifies the mother’s claim for sole custody of both children and supervised access by the father, especially given her consent to joint custody in March 2013, weeks or even days following the filing of several complaints on her behalf to the DYP, all of which were rejected.

Nor does the undersigned agree with Mrs. Greenberg, that sole custody of both children to the father is the best course of action at this time, in the interests of the children. [ 14 ] On June 17, 2017, the respondent mother filed an application in the Superior Court, again seeking to change custody over Y and alleging that the child had expressed a desire to live exclusively with her. The appellant father responded with his own application for sole custody of the child.

As mentioned above, the matter was to be dealt with in a two-day hearing before Justice Casgrain, but the latter rendered judgment in less than 30 minutes, after hearing Y in camera . His reasons for granting sole custody of the child to the respondent mother and for denying any access rights to the appellant father are very brief and are reproduced here in full: The Court has just met with the child who is presently 12 years old. He is afraid of the father. Whether this is true or not, he said that the father has been physically abusive with him. His older brother does not really live with him.

His older brother is in Malone, U.S.A., where he goes to school. In fact, Y is alone in Town A. He wants to live with his mother. Both parents agree that he is old enough to choose. He has chosen to live with his mother. He also wants to take a pause as far as seeing his father. His wish will be granted. This litigation had been going on forever. It is more than time that it ends. It solely concerns the children. They have been pawns in this litigation. [ 15 ] It should be noted that this is not the first time that Y has alleged physical abuse by his father.

All past similar claims have been dismissed by Youth Protection as unfounded and presumably resulting from prompting by the respondent mother. Justice Cohen dealt specifically with this issue in her May 14, 2015 judgment: [57] However, it must be mentioned that there were several occasions during that period of time when the Director of Youth Protection (“DYP”) and the police were involved.

As noted above, no charges were ever laid nor were any “ signalements ” to the DYP ever retained. [58] In particular, it should be noted that several complaints were filed by the mother during the period leading up to the divorce judgment on March 7 th , 2013. [59] One complaint concerning X was filed by the mother on January 15 th , 2013, which was not retained, as appears from the DYP report (R-33). [60] Two complaints also in early 2013 concerned alleged physical abuse of Y by the father – these complaints were also not retained, as appears from the DYP two reports of February 28 th , 2013 (P-44) and March 1 st , 2013 (P-43). [61] It is worth underlining that in both DYP reports P-43 and P-44, the child Y never provided any information “ such as details, context, timeframe or chronicity ” making it very difficult to substantiate his claims that his father had “ kicked him resulting in the bruise ” (page 9, P-43).

Furthermore, X had reported to the DYP that “ he and Y were roughhousing on February 6 th or 7 th , resulting in Y falling off a bed and landing upon his buttocks ”, explaining the bruise which had led to the complaint (page 10, P-43). [62] Moreover, in P-44, the DYP notes that “ both parents do not comprehend the extent and ramifications that their issues have upon their children ”. Y further reported that he did not “ feel fearful of his father.

The undersigned provided Y with an option of ending his stay with his father, and Y responded that he did not want to do so and felt comfortable with being with his father ” (P-44, page 9). [63] Thus, despite the fact that the mother “ believes that Mr. L. has been and continues to be physically abusive towards Y and would like for DYP to prevent contact between Y and his father ” (page 10, P-44), the DYP found that the “ security and development of Y was

not compromised ” (page 11). [64] The undersigned takes good note of the fact that Y reported this physical abuse, but expressed no fear whatsoever of his father, nor could he give any details or timing with respect to the alleged abuse. [65] In all, the father alleges that the mother filed 5 complaints with the DYP, all of which were refused.

During her cross- examination, the mother could not answer the question as to how many times the children were the object of DYP complaints. [ 16 ] These unfounded complaints were part of the reason why Justice Cohen took the rather extraordinary measure of barring the parties from instituting any further proceedings concerning custody or access with respect to past events: [145] BARS both parents from taking any further proceedings concerning custody or access with respect to events which took place up to and including the date of the present judgment. [ 17 ] Nevertheless, shortly after Justice Cohen’s judgment was rendered, another complaint was filed with Youth Protection on September 22, 2015.

After a rather thorough investigation, this complaint was also determined to be unfounded. The conclusions of the November 2015 evaluation report respecting this complaint are illuminating: CONCLUSION: The L. family came to the attention of the Department of Youth Protection for concerns regarding psychological maltreatment on the part of both parents, and physical abuse on the part of the father. Although Y initially confirmed the allegations and said that he was scared of his father and wished to cease contact, his story, details, demeanour changed throughout multiple interviews.

As was the case in 2013 during a previous evaluation, Y reported incidents in which his father was mean, possibly abusive towards him or inappropriately disciplined him, however did not consistently provide information such as to details, context, timeframe or chronicity. Furthermore, his brother X was able to clearly give context, a more accurate timeframe, and greater detail. Those specifics were discussed with Y, and that is when his story began to change therefore, making it very difficult to substantiate his claims.

In addition, Y reported initially to be scared of his father, however after a meeting with his father present, was not afraid of his father and even went so far as to say that his father could remain his hockey assistant coach for the 2015-2016 season. The undersigned did not observe any fear or anxiety from Y after the initial visit with him at school. Y began to tear when speaking of his father, in the presence of his mother; however, that was not the case when the undersigned met with him alone, or in the presence of his father. Mr.

L. remained adamant that he has never used physical force or physical means to discipline his children, and believes that Y is being influenced by others to feel the way he does. Also of concern is the information obtained from some of the collaterals the undersigned spoke with throughout the course of the evaluation. It was clear that Ms. A. still speaks with Dr. Katz, a medical professional that was restricted from seeing Y or taking

part in the family structure, and also with Dr. Bergeron. Both professionals believe as Ms. A. does, that Y should not be in the care of his father, Mr. L. for reasons of parental alienation and physical abuse. It should be noted that neither of these professional have been involved for a lengthy time period with the child, their information is third hand from the mother, which raises serious questions about their bias, and the validity of the information provided. In addition, although Ms.

A. and these two professionals present that Y is being alienated by this father against his mother, Y does not present any information or behaviour to suggest this, nor does he seem to have ill-will towards his mother as an alienated child might. In fact, quite the opposite is true, raising question as to his mother’s influence for his feelings towards his father. Despite the above mentioned concerns, Y is doing well academically, has friends his age, and is actively participating in extra curricular activities outside of his family structure.

Although he feels conflicted for whatever reason to live with both parents, it is clear that he is attached to both parents and his developmental needs are being met. The conflict between his parents is on-going, however is being dealt with through Superior Court, where it should be. Y has his own lawyer who can represent his best interest and wishes, and his emotional needs can be best met through community services outside the influence or structure of his family.

At the current time, there is insufficient evidence to indicate Y is a victim of physical ill-treatment or that his parent’s conflictual relationship has a significant impact on his emotional and developmental needs. Both parents have been advised that if Y continues to be placed in the middle of their conflict, it could result in the DYP becoming re-involved yet again, and more significant measures may need to be taken, should Y be traumatized or negatively influenced by the conflict.

DECISION: In light of the above, we consider the facts not founded and believe the security and development of Y not compromised under Articles 38E 1 and 38C of the Youth Protection Act. [ 18 ] This is not the first time Y has indicated that he wishes to live with his mother, though the record shows that he has changed his mind about this time and time again.

Justice Cohen discussed this situation at length in her judgment, concluding that very little weight should be given to these statements: [78] As for Y, his attorney M e Molpeceres, filed two reports which are contradictory. [79] The first report, dated April 24 th , 2015, filed as Exhibit A-1, is a report of 3 pages indicating that the child wanted to remain in joint custody. Me Molpeceres, in this report, notes that he had met the child three times – October 20 th , 2014, accompanied by his mother; October 30 th , 2014, brought by his father, and on April 14 th , 2014.

He notes that Y wants to continue in joint custody, among other reasons, in order to continue to see his brother and it reads as follows: Ville A, le 24 avril 2015

Madame la Juge, Pour faire suite à notre conférence téléphonique de ce matin, voici mon rapport concernant le mandat que m'a confié l'enfant Y. J'ai rencontré Y à trois reprises, soit le 20 octobre 2014, alors qu'il est venu à mon bureau accompagné de sa mère, le 30 octobre 2014 alors qu'il est venu à mon bureau accompagné de son père et aujourd'hui, le 14 avril 2015, alors qu'il y est venu accompagné de son père. Évidemment, en ces trois occasions, je l'ai rencontré seul. Y, qui est âgé de 9 ans, en aura 10 le […] 2016. Il est intelligent, articulé et paraît avoir la capacité de me donner mandat.

Il vit en garde partagée à raison d'une semaine - une semaine en alternance. L'échange se fait le vendredi. D'ailleurs, c'est aujourd'hui qu'il s'en va chez sa mère y passer la semaine. Il a un frère X qui vit avec son père et qu'il voit durant la semaine qu'il passe avec ce dernier. Lorsque je lui demande de me décrire sa relation avec X, l'enfant me dit : « I get along pretty well with my brother even if sometimes we fight like regular brother ». Il fréquente l'école A et il est en troisième année. Chez son père et chez sa mère, il a sa propre chambre.

L'enfant m'informe que ses parents n'habitent pas très loin l'un de l'autre. La mère habite à Ville B alors que le père habite à Ville C. L'enfant veut continuer à vivre en garde partagée comme il le fait présentement. « It is going good », me dit Y et il ajoute, à cet effet : « / just want to see both parents ». Lorsque je lui demande pourquoi, il me répond : « Because I love them both ». Également, parce que l'enfant est sous l'impression que, s'il vit avec un parent, il ne pourra pas voir l'autre, même si je le rassure en lui disant que ce n’est pas nécessairement le cas.

Une autre raison pour laquelle l'enfant veut continuer à voir ses parents comme il le fait présentement est qu'il veut continuer à voir son frère. D'après ce qu'il me dit, il ne pense pas que son frère X voit sa mère. J'ai tenté d'évaluer l'importance que l'enfant accorde au conflit entre ses deux parents, en lui demandant de jouer au jeu des trois souhaits. Pour ce faire, je lui demande quel film il préfère, soit Pinocchio, soit Aladin. L'enfant choisit Pinocchio qu'il connaît. Après lui avoir dit que trois de ses plus grands souhaits pourraient être exaucés, je lui demande lesquels.

Le premier est d'être plus grand que son frère car, me dit-il, « he gets to go out with his friends and I don't ». Le deuxième est d'être un joueur de hockey professionnel quand il sera plus grand; et Le troisième est d'avoir des chiens toute sa vie. De fait, l'enfant m'informe que, chez son père, il en a deux, soit un grand danois et un mastiff qu'il a depuis deux ans et un an respectivement. Également, j'invite Y à participer à un autre jeu où je lui demande de donner une note à ses parents sur 100 %. Ce jeu me permet de questionner l'enfant s'il leur donne des notes différentes.

Dans le cas de Y, il me dit que, sur 100 %, il donne 95 % à son père et la même note à sa mère. II ajoute : « / don't give 100% because they don't buy me toys or video games all the time ». L'enfant m'informe que ses parents ne lui parlent pas des procédures et qu'ils ne le questionnent pas sur son choix ou tentent de l'influencer. « They just tell me to say the truth ». Finalement, l'enfant me dit qu'il ne veut pas parler au tribunal car il ne veut pas être impliqué dans les procédures judiciaires. « I don't want to get involved with court ». Le désir de Y semble être réfléchi.

Ce n'est pas le produit d'un caprice. À son âge, les parents devraient y accorder de l'importance. Veuillez agréer, Madame la Juge, l'expression de mes sentiments distingués Valentin Molpeceres [80] However Y, 9 years old, has changed his opinion several times. [81] Prior to this report of Friday April 24 th , 2015, Y had expressed the wish to live with his mother in meetings with his lawyer. As appears above, this changed. [82] Then, on April 28 th , 2015, M e Molpeceres advised the Court that Y had changed his mind once again, and now wanted to be in the custody of his mother.

In a second report A-2, Y also raised allegations of physical abuse by the father which are identical to those dealt with by DYP and which did not appear in the previous report A-1. [83] This second report A-2, dated April 28 th , 2015, reads as follows:

Ville A, le 28 avril 2015 Madame la Juge, Tel que convenu, je vous informe avoir rencontré à mon bureau l'enfant Y hier soir, le 27 avril 2015. L'enfant y est venu accompagné d'une amie de sa mère, même si sa mère s'est présentée en début de rencontre. Évidemment, je l'ai rencontré seul. L'enfant m'informe avoir rencontré le Dr Bergeron dimanche passé, le 26 avril 2015. Il m'informe qu'il lui a dit qu'il voulait vivre avec sa mère. Lorsque je lui demande pourquoi, il me dit : « cause I was afraid of my dad because he hits me » .

L'enfant m'informe m'avoir dit, lors de ma rencontre avec lui du 14 avril 2015, qu'il voulait la garde partagée à raison d'une semaine - une semaine « cause my dad told me that you told him that I wanted to live with my mom and he was mad and he hit me once around my » et l'enfant m'indique son torse. L'enfant ajoute : « If I told you that I wanted to live with my mom you would of told him and he would of hit me again ». Lorsque je demande à l'enfant de me décrire comment son père se fâche, il me dit : « Sometimes he trows things and sometimes he hits me and my brother ».

L'enfant m'informe que, s'il va vivre avec sa mère, il voudrait voir son père quand il sera âgé de 30 ans. Lorsque je lui demande pourquoi 30 ans, il me répond : « when I am stronger and he wont hit me ». De plus, l'enfant m'informe qu'il n'a aucun ami chez son père. II me dit également qu'à l'occasion, son père travaille en semaine le soir et que c'est son frère qui s'occupe de lui ou, à défaut, qu’il demeure au service de garderie de l'école. Je questionne l'enfant sur sa relation avec son frère et sur le fait que, s'il va vivre avec sa mère, il y a de grands risques qu’il ne le voit pas.

Voici ce que me dit l'enfant à cet effet : « If I live with mom I wont see him but he can always come to our house after school ». Je lui demande alors s'il pense que son frère va venir chez lui après l'école, ce à quoi il me répond : « Maybe, I don't know ». Pour ce qui est de ses activités, il désire continuer à jouer au hockey au club A. L'enfant m'informe que, l'année passée, il a joué pour [le club B] mais que, s'il va vivre avec sa mère et vu sa nouvelle adresse, il devra changer de club, ce qui ne semble pas le déranger. L'enfant ne veut pas jouer au base-ball cette année.

II préférerait jouer au soccer et décider ensuite lequel des deux sports il veut pratiquer. Finalement, il m'informe que son nom est Y L... « that is what I usual[l]y say » et l’enfant ajoute « I used to say Y A. L. but I just choose L. because it sounds better than Y A. L. or Y A. ». L'enfant craint la réaction de son père lorsqu'il apprendra qu'il désire vivre avec sa mère. Voici ce qu'il me dit à cet effet : « If I see him he will hit me cause he will be mad that I am living with my mom » . Et il conclut en me disant : "That is what I want".

Je demeure évidemment à votre entière disposition quant à tout supplément d'information. Veuillez agréer, Madame la Juge, l'expression de mes sentiments distingués. Valentin Molpeceres [84] It should be noted that between the two reports by Y’s attorney on April 24 th and April 28 th , 2015, the child was seen by the mother’s expert Éric Bergeron. Dr. Bergeron visited with the child on Sunday April 26 th , 2015, without the knowledge of the attorneys, including the child’s own attorney, the other expert Mrs.

Greenberg, nor of the Court. [85] On the issue of these contradictory reports, the Court underlines not only the young age of the child Y (9 years old), but also the fact that, following meetings with DYP representatives, he declined the offer to not return to his father’s residence, as noted above.

Moreover, the Court notes that M e Molpeceres did not feel that the accusations of physical abuse reported in A-2 merited a new “ signalement ” to the DYP. [86] Given the contradictions and given that actions speak louder than words – the child has willingly returned to his father’s every other week since the joint custody arrangement was put into place in 2011 – very little importance shall be given to the two reports made by Y’s attorney to the Court. * * * * * [ 19 ] Following lengthy hearings, Justice Senécal and Justice Cohen concluded that it was in Y’s best interests to maintain a relationship with both his parents by way of a joint custody arrangement.

I give significant weight to these reasoned findings. [ 20 ] Consequently, I conclude that the appellant father has established that a serious and irreparable prejudice will result from Y being removed from his father and that the balance of inconvenience favours granting the stay and thus maintaining the status quo resulting from the judgment of Justice Cohen: Droit de la famille — 143293 , 2014 QCCA 2373 . The effect of the stay will be to re- establish the joint custody arrangements ordered by both Justice Senécal and Justice Cohen until the appeal is finally determined.

[ 21 ] At the hearing pertaining to the stay application, appeal management measures were taken to expedite the appeal, including setting a hearing date for August 7, 2018. It is useful to confirm these management measures through formal orders. [ 22 ] The parties are nevertheless encouraged to pursue out of court settlement discussions to resolve this matter before the appeal hearing.

FOR THESE REASONS, THE UNDERSIGNED: [ 23 ] GRANTS the application; [ 24 ] STAYS the provisional execution of the judgment rendered March 28, 2018 by the Honourable Kirkland Casgrain of the Superior Court, District of Montreal, effective immediately and until such time as the appeal from that judgment has been finally determined; [ 25 ] REINSTATES the judgment rendered by the Honourable Carol Cohen on May 14, 2015 with respect to custody and child support and all other matters provided therein; [ 26 ] ORDERS that the appeal on the merits be heard on August 7, 2018 in room Pierre-Basile-Mignault , at 9:30 am for a maximum duration of 90 minutes (45 minutes for the appellant, 25 minutes for the respondent and 20 minutes for the attorney appointed to represent the child); [ 27 ] ORDERS that the appeal proceed by way of memoranda; [ 28 ] ORDERS that the appellant prepare a memorandum with an argument not exceeding 15 pages and that he file it with the Court and notify it to the respondent and the attorney appointed to represent the child at the latest June 7, 2018 ; [ 29 ] ORDERS that the respondent prepare a memorandum with an argument not exceeding 15 pages and that she file it with the Court and notify it to the appellant and the attorney appointed to represent the child at the latest July 12, 2018 ; [ 30 ] ORDERS that the attorney appointed to represent the child prepare a memorandum with an argument not exceeding 10 pages and that he file it with the Court and notify it to the appellant and the respondent at the latest July 12, 2018 ; [ 31 ] There shall be no order as to costs.

ROBERT M. MAINVILLE, J.A. M tre Aline Kordzian DEVINE SCHACHTER POLAK For the appellant M tre Gabriel Larose For the respondent Mtre Valentin Molpeceres For the child Date of hearing: May 3, 2018