2021 QCCA 118, 2021 QCCA 118

Droit de la famille — 2165 2021 QCCA 118 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-700010-200 ( 550-12-034461-185 ) MINUTES OF HEARING DATE: January 21, 2021 THE HONOURABLE MARK SCHRAGER, J.A. APPELLANT COUNSEL J. M. Mtre Denise Boivin By videoconference RESPONDENT COUNSEL C. V. Mtre Karine Papikyan By videoconference DESCRIPTION: Appellant’s motion for safeguard order, return of child and sole custody (Art. 379 C.p.c. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:15 Commencement of the hearing. Identification of counsel. Submissions by Mtre Boivin. 10:23 Submissions by Mtre Papikyan. 10:36 Reply by Mtre Boivin.

10:39 The judge addresses to counsel. 10:40 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The appeal of the judgment rendered on July 14, 2020 by the Superior Court, District of Gatineau (the Honourable Suzanne Tessier), is pending before the Court. The hearing is fixed for June 17, 2021.

Following a three-day hearing, the judge granted custody of the parties’ minor child to the Respondent (the mother) with access rights to the Appellant (the father) principally every second week- end with one sleepover during the alternate week. [ 2 ] Alleging that the mother has moved from the City A area to City B, [Province A], the Appellant now seeks by way of a safeguard order, the exclusive custody of the minor child until the hearing before this Court in June. [ 3 ] The allegations of the motion describe a couple with poor relations; the trial judge described the breakup as acrimonious.

While the Appellant is perturbed by the move which will make the exercise of his access rights more complicated, the only allegation directed at the child’s best interest is at paragraph 20 where he alleges that the grandmother, who operates a hair salon, sometimes babysits the child, which may potentially increase the child’s exposure to Covid-19. Such potential, indeed hypothetical, prejudice is insufficient for the undersigned to issue a safeguard order.

In any event, the Respondent states in an affidavit (filed over the Appellant’s objection) that she intends to return to City A and stay at her mother’s house at the appropriate times for the Appellant to exercise his access rights. However, at worst, the exercise of access rights will necessitate travel for the child in the presence of one of the parents.

Such situation does not in the circumstances constitute sufficient prejudice justifying issuance of the safeguard order sought. [ 4 ] The best interest of the child is the primary, if not, the only concern in custody matters ( Section 16 (8) of the Divorce Act and

Article 33 C.C.Q. ). I see no justification in the motion to issue a safeguard order. The judge of the Superior Court heard the parties and considered the matter in depth. After a three-day hearing, the judge rendered a reasoned judgment granting custody to the Respondent. There is, as I have stated, no prejudice and indeed no apparent right to a safeguard. Moreover, the parties will be heard on the appeal in due course and I see no urgency that could justify the granting of a safeguard order, effectively changing the custody order pronounced in first instance.

FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 5 ] DISMISSES the motion for safeguard order, without legal costs, given the nature of the proceedings. MARK SCHRAGER, J.A.