2021 QCCA 1622, 2021 QCCA 1622

Droit de la famille — 212080 2021 QCCA 1622 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029719-218 (500-04-069436-161) DATE: October 26, 2021 BEFORE THE HONOURABLE FRÉDÉRIC BACHAND, J.A. J. D. APPLICANT – Plaintiff v. F. N. RESPONDENT – Defendant JUDGMENT [ 1 ] The applicant seeks leave to appeal from a judgment of the Superior Court, district of Montreal (the Honourable Madam Justice Chantal Corriveau), refusing to renew a safeguard order directing the respondent to take steps to allow the parties’ son, X, to become a permanent Canadian resident.

The applicant, who lives in the United Arab Emirates, had sought that order on the ground that the uncertainty surrounding X’s immigration status was preventing him from exercising access rights granted to him in a judgment rendered in January 2020. * * * [ 2 ] The safeguard order in question was issued on June 28, 2021. The applicant subsequently claimed that the respondent had failed to comply with the order, and he commenced contempt of court proceedings on August 23, 2021.

Then, on September 3, 2021, the respondent filed a sworn statement indicating that she was considering moving to France with X within the following two years and that she no longer saw the point in seeking permanent Canadian resident status for him. [ 3 ] Four days later, the parties appeared before the Superior Court.

The judge refused to renew the order in a judgment that reads as follows: ORDONNANCE DE SAUVEGARDE CONSIDÉRANT la demande de renouveler le jugement de la juge Conte daté du 23 août 2021 [sic] ordonnant à Madame de : « faire les démarches pour que son fils X obtienne le statut de résident canadien, et ce dans les 10 jours du présent jugement »; CONSIDÉRANT que les parties ont établies [sic] au 14 octobre 2021, la date de présentation d’une demande de citation à comparaître pour outrage au Tribunal; LE TRIBUNAL : Est d’avis qu’il ne convient pas de renouveler par ordonnance de sauvegarde les termes du jugement précité; Un débat doit être engagé sur la résidence de l’enfant d’autant plus que par jugement, la garde de l’enfant est actuellement confiée à Madame; POUR CES MOTIFS, LE TRIBUNAL : REFUSE de renouveler l’ordonnance de sauvegarde du 23 août 2021 [sic]. [ 4 ] I understand from observations made by the applicant’s lawyer that the trial on the contempt of court charge was held on October 14, 2021, and that the Superior Court judge reserved judgment until the completion of the present appellate proceeding. * * * [ 5 ] The applicant contends that the impugned judgment is deeply flawed, because it shows that the judge did not understand the file and the special circumstances preventing him from exercising his access rights.

He adds that the judge’s statement regarding the necessity of a debate on X’s residence makes no sense given that X has been residing and studying in Town A since September 2016. [ 6 ] I am not convinced that the judge misunderstood the file and rendered an unreasonable judgment. It seems to me plausible, at

the very least, that her comment regarding X’s residence had less to do with his current situation than with the respondent’s plan to move to France, which was unknown — at least to the applicant — on June 28, 2021, when the safeguard order was issued. The judge seems to have considered that, because of this change in circumstances as well as the upcoming contempt of court hearing, it was preferable not to renew the safeguard order.

Viewed in this light, her judgment does not strike me as deeply flawed and unreasonable. [ 7 ] It should also be noted that nothing in that judgment will prevent the Superior Court from revisiting the issue of X’s immigration status at a later stage of the proceeding, should the need arise. [ 8 ] Lastly, I fail to see how the proposed appeal would — even if successful — bring much benefit to the applicant, because his application indicates that, if granted leave to appeal, he would ask the Court to renew the safeguard order until the completion of the contempt of court proceeding.

However, given how the matter has proceeded before the Superior Court, the contempt proceeding would in all likelihood be completed soon after the Court’s judgment.

In these circumstances, granting leave to appeal would be contrary to both the principle of proportionality and the interests of justice. * * * [ 9 ] In sum, this is not one of those highly exceptional cases where leave to appeal from a judgment issuing a safeguard order in family matters ought to be granted. [1] FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application for leave to appeal, without legal costs given the nature of the dispute. FRÉDÉRIC BACHAND, J.A. Mtre Raphaël Levy LEVY TSOTSIS AVOCATS For the Appellant F. N. Unrepresented Date of hearing: October 21, 2021