2011 QCCA 99, 2011 QCCA 99

Droit de la famille — 1155 2011 QCCA 99 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021332-119 ( 500-12-307143-101 ) MINUTES OF THE HEARING DATE: January 19, 2011 THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PETITIONER ATTORNEY(

S) N. M. Mtre May Sau Mei, Chiu Ouellet Nadon et Associées Me Kimon Kling RESPONDENT(

S) ATTORNEY(

S) P. C. Mtre Caroline Daniel De Bargis & Daniel

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT RENDERED ON JANUARY 6, 2011 BY THE HON. MADAM JUSTICE CHRISTIANE ALARY. Clerk: Marcelle Desmarais Courtroom: RC.18 HEARING 14 h 07 Submission by Mtre May Chiu. 14 h 14 Submission by Mtre Kimon Kling 14 h 22 Submission by Mtre Caroline Daniel 14 h 33 Reply by Mtre Kimon Kling. 14 h 37 Ends of arguments. 14 h 37 Suspension 15 h 53 Resumption. BY THE JUDGE: Judgment – see page 3.

Marcelle Desmarais Clerk JUDGMENT [ 1 ] The petitioner seeks leave to appeal from a judgment of the Superior Court which on January 6 th last, and in the context of divorce proceedings begun in Quebec, granted to the respondent a safeguard order valid until the 7 th of February. This order gives to the parties the joint custody of their children and, while it stands, forbids them to leave the jurisdiction.

[2] The petitioner is essentially correct in asserting that, when a declinatory exception pertaining to the jurisdiction in personamof the Court is raised in proceedings pending before a court in Quebec, it is incumbent on the party claiming that the court is competentto establish with sufficient evidence – that is to say, on a balance of probabilities - the factual basis upon which jurisdiction isexercisable. [3] This is a trite proposition, which is illustrated inter alia by the case of Baird v.

Matol Botanical International Ltd., (QC CA), [1994] R.D.J. 282 (C.A.), and which was reiterated in several subsequent judgments of this Court and of theSuperior Court. In Baird, this Court reversed a judgment dismissing a declinatory exception and returned the file to the Superior for it toproceed anew on the exception, to hear evidence and rule on the jurisdictional issue. [4] In the case now before me, petitioner did not append to the motion for leave to appeal the motion for a safeguard order onwhich the judge ruled in the Superior Court.

I am led to understand, however, that the purpose of this motion was to prevent thepetitioner from leaving the jurisdiction with the parties’ children and travelling to another residence in either Haiti or France. Themotions judge, perforce, rendered a judgment on the basis of prima facie evidence in the form of affidavits – which again were notappended to the motion for leave to appeal.

Although she acknowledged that a jurisdictional issue arose in the case, the fact that sheexplicitly dismissed the declinatory exception in her reasons (rendered orally from the bench) indicates that she was prepared to assumeprima facie jurisdiction, at a stage in the case where the paucity of actual evidence, one way or the other, was glaringly apparent. Thisconclusion, in support of a safeguard order valid for a little over a fortnight, appears consistent with

article 3140 .C.c.Q., particularlysince the interest of the children was at stake and had to be taken into account, as the judge did indeed do in her reasons. [5] Granting leave would suspend the effect of the safeguard order, which might or might not be affirmed on appeal – but verylikely would be affirmed given the content of the file as it now stands: it is practically empty. [6] Dismissing the motion for leave to appeal, on the other hand, will allow the order to run its course, until the 7th of February,at which point the parties will have a better opportunity to make their positions known on the jurisdictional issue.

If petitioner thenwishes to appeal an adverse interlocutory judgment, should that be the outcome of the proceedings, the Court of Appeal will be in amuch better position to evaluate the actual merit of the parties’ claims in this regard, as opposed to taking a shot in the dark some eight weeks from now (at the earliest), which would inevitably be the case if the judgment of January 6th were submitted on appeal to a panelof the Court. FOR THESE REASONS, the motions is dismissed, without costs. THE HONOURABLE YVES-MARIEMORISSETTE, J.A.