2023 QCCA 1378, 2023 QCCA 1378

Unofficial English Translation of the Judgment of the Court Droit de la famille — 231881 2023 QCCA 1378 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-700179-237 ( 550-04-022146-225 ) MINUTES OF HEARING WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P. ”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (article 16 C.C.P .).

DATE: November 3, 2023 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. JOCELYN F. RANCOURT, J.A. GENEVIÈVE COTNAM, J.A. APPELLANT COUNSEL A. L. Mtre VÉRONIQUE ALLAIRE ( Les Associés Avocats ) ( by videoconference) RESPONDENT T. S. PRESENT AND UNREPRESENTED On appeal from a judgment rendered on August 3, 2023, by the Honourable Pierre Dallaire of the Superior Court, District of Gatineau.

NATURE OF THE APPEAL: Judgment rendered in the course of a proceeding ─ Custody. Appellant’s motion to strike allegations, withdraw exhibits and for an order correcting the respondent’s memorandum (ss. 377 et seq. C.C.P .) Clerk at the hearing: Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING 10:47 Commencement of the hearing. Identification of the file and parties. Preliminary remarks by the Court, addressing the parties. 10:50 Submissions by Mr. S. given Mtre Allaire’s intention to plead in French. Discussion between the Court and Mr. S., regarding the presence of Mr. B., who is present in the courtroom.

Mr. S. wishes for Mr. B. to help him understand what will be said in French. To this end, the Court authorizes Mr. B. to sit next to Mr. S.. Mtre Allaire confirms that her submissions will be in French. 10:51 Discussion between the Court and Mtre Allaire, regarding the motion to strike allegations, withdraw exhibits and for an order correcting the respondent’s memorandum.

The Court will decide whether the motion should be granted at the same time that it will dispose of the appeal. 10:52 Submissions by Mtre Allaire regarding the motion to strike allegations, withdraw exhibits and for an order correcting the respondent’s memorandum. 10:54 Comments by the Court, regarding the suspension of the provisional execution of the judgment in first instance, granted by Healy, J.A. on August 22, 2023.

Response by Mtre Allaire and resumption of her submissions. 10:56 Submissions by Mtre Allaire regarding the appeal. 11:09 Intervention by the Court and response by Mtre Allaire, regarding the no-contact order between the appellant and the respondent.

Mtre Allaire resumes her submissions. 11:13 Discussion between the Court and Mtre Allaire, regarding the improper installation of the alcohol-ignition interlock device. 11:24 Mtre Allaire resumes her submissions. 11:26 Question by the Court and response by Mtre Allaire, regarding the trial judge’s assessment of the respondent’s credibility. 11:29 Mtre Allaire resumes her submissions. 11:39 Observation by the Court regarding the next hearing on the merits, before the Superior Court.

Response by Mtre Allaire and resumption of her submissions. 11:42 Discussion between the Court and Mtre Allaire, regarding the terms of the access rights. 11:43 Mtre Allaire resumes her submissions. 11:44 Verbal request by Mtre Allaire so that her client may obtain legal costs, should the appeal be allowed. 11:46 Question by the Court and response by Mtre Allaire, regarding access rights should the appeal be dismissed. 11:49 Recess of the hearing. 12:08 Resumption of the hearing. Intervention by the Court informing Mr.

S. that it will not be necessary to hear him further other than in order to determine when he would be ready to exercise his access rights should the appeal be dismissed.

12:09 Response by Mr. S.. 12:11 Question from the Court addressed to Mtre Allaire, in order to know when Mr. S.’s access rights could be exercised again should the appeal be dismissed. Response by Mtre Allaire. 12:12 The Court proceeds to read the reasons of the judgment. 12:17 BY THE COURT : Judgment rendered from the bench – see page 5. 12:19 Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT WARNING : Disclosure and circulation prohibited: The Code of Civil Procedure (“ C.C.P. ”) provides that, except as authorized by the court, no person shall disclose or circulate any information that would allow a party or a child whose interests are at stake in a proceeding in a family matter to be identified (article 16 C.C.P .). [ 1 ] The standard to which our Court is held in family law matters is well known, notably when child custody or support is involved.

Hickey and Van de Perre require appellate courts to show great deference to the findings and conclusions of trial judges, who moreover enjoy, in such matters, a very wide discretion. The Supreme Court recently noted that deference in F. v. N. , [1] in which Kasirer, J., writing for the majority, underscored “the vital importance of appellate deference in family law matters, following the approach articulated in Hickey and Van de Perre ”. [2] To the same effect, see also Barendregt v.

Grebliunas . [3] [ 2 ] Our Court has always followed that teaching of the Supreme Court and it will intervene only in the presence of an error of law that determines the outcome of the appeal or a palpable and overriding error (i.e. one that is obvious and significant) in the assessment of the evidence (including that of the witnesses’ credibility) or in the exercise of the trial court’s discretion. In Droit de la famille — 211027 , [4] the Court noted: [ translation ] [15] On appeal from a decision regarding the terms of custody and access rights, the appellate standard of review is stringent.

Intervention must be confined to cases where the decision is tainted by a material error [reference omitted]. Moreover, custody orders fall within the discretion of the trial judge and deference is owed on appeal. The Court cannot intervene for the sole reason that it would have rendered a different decision [reference omitted].

It must “refrain from repeating the balancing exercise engaged in by the trial judge” [reference omitted]. [ 3 ] Thus, the party appealing a custody judgment cannot simply argue that it disagrees with the trial judge nor ask for a retrial or the re-weighing of the evidence: it must establish that the judgement is tainted by an error of law that could directly affect the outcome of the case or that it is tainted by a material error in the assessment of the facts and in the exercise of the discretion. [ 4 ] That appellate standard of review must apply with equal force, if not more so, in cases where the Court is deciding an appeal from a safeguard order or other form of temporary, interim or interlocutory judgment.

In fact, such judgments, which are generally rendered on the basis of

summary evidence, as in the case at bar, leave little room for an appellate intervention. * * [ 5 ] In the present case, the appellant, whose concerns are certainly real, has not discharged her burden of demonstrating the reviewable error that purportedly tainted the judgment. [ 6 ] First, contrary to what the appellant argues in her memorandum of appeal, the trial judge cannot be blamed for having acted expeditiously, to the detriment of the appellant’s right to be fully heard. Safeguard applications are inherently

summary and expeditious proceedings, the lawyer representing the appellant did not request that her client testify and, moreover, her oral submissions took up the greatest part of the hearing time that the trial judge devoted to the case. The appellant was thus fully heard, in the procedural context inherent to the safeguard application. [ 7 ] On the merits, for one thing, and contrary to what the appellant asserts, the judge correctly relied on the child’s best interests test (art. 33 C.C.Q. ). Further, his analysis of evidence that was both

summary and conflicting justifies his findings. He was alive to all of the facts alleged and stated by the parties and he did not ignore them, but rather balanced them. The conditions imposed upon the respondent for the exercise of his access rights were proper and reasonable under the circumstances. [ 8 ] This appeal has no other purpose than to invite the Court to repeat the weighing exercise engaged in by the trial judge. That is not the role of an appellate court. [ 9 ] It should be noted, finally, that the trial on the merits of the parties’ respective applications, will be held before the Superior

Court next month, from December 4 to 8. The parties will then have the opportunity to submit complete evidence and more firmly establish the factual basis of their respective positions. * * [ 10 ] The Court will therefore dismiss the appeal. Since, by doing so, it will be restoring Dallaire, J.’s judgment whose effects had been suspended last August by a judge of this Court, [5] the parties, as well as the child, should be given the opportunity to prepare for the resumption of the respondent’s rights of access to the child.

Consequently, the exercise of those rights can resume as of this Friday, November 10. * * [ 11 ] Considering the substance of this judgment, the motion to strike presented this morning by the appellant is moot and will be denied for that sole reason. * * FOR THESE REASONS, THE COURT: [ 12 ] DENIES the motion to strike, which is now moot; [ 13 ] DISMISSES the appeal; [ 14 ] RESTORES the judgment in first instance of August 3, 2023; [ 15 ] DECLARES that the respondent can resume the exercise of his rights of access to the parties’ child as of Friday, November 10, 2023, under the terms and conditions set by the judgment in first instance of August 3, 2023 (which judgment itself refers to the terms and conditions of the judgement delivered by Justice Marie-Josée Bédard on July 20, 2023); [ 16 ] THE WHOLE , without legal costs.

Marie-France Bich, J.A. Jocelyn F. Rancourt, j.a. geneviève cotnam, J.A.