2018 QCCA 1869, 2018 QCCA 1869

Droit de la famille — 182347 2018 QCCA 1869 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027888-189 (760-12-024346-151) MINUTES OF THE HEARING DATE: November 9, 2018 THE HONOURABLE geneviève marcotte, J.A. PETITIONER COUNSEL j. j. Mtre PAMELA O'REILLY RESPONDENT COUNSEL je. h. Mtre daniel cooper ( Marcil & Cooper) Ms. ALICE FLORIAN (Articling student) DESCRIPTION: Motion for leave to appeal on interim judgment rendered on October 18, 2018 by the Honourable Nicole- M. Gibeau of the Superior Court, District of Beauharnois and for suspension of its execution. Clerk: Mihary Andrianaivo Courtroom: RC.18 HEARING

Continuation of the November 8, 2018 hearing. The Parties’ attendance is not required, today. BY THE JUDGE: Judgment – See page 3. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] The Petitioner is seeking leave to appeal an interim judgment rendered on October 18, 2018, by the Superior Court, District of Beauharnois (the Honourable Nicole M.

Gibeau), which granted the Respondent supervised access rights to his two children, respectively aged 5 and 7, for a 3 month period, until January 17, 2019. [ 2 ] The context is the following: the Respondent pleaded guilty to an accusation of sexual assault on his own son committed in November 2015 (on a single occasion), when the boy was 4 years old.

He was sentenced to jail and has now served his sentence. [ 3 ] A judgment was rendered on […], by the Cour du Québec, Chambre de la jeunesse (Youth Court), declaring that the security and development of the two children were in danger due to sexual abuse (in the case of the son) and serious risk of sexual abuse (in the case of the daughter).

Justice Jean Gravel refused to allow contact between the Respondent and his son prior to the completion of his jail sentence but stipulated that contacts be resumed after his release from jail (within a maximum of 4 weeks) and that they be supervised by a person designated by the Director of Youth Protection.

The judge also provided for the reintroduction of visits with the daughter, shortly after those with the son, according to an agreement between the parties as to the modalities, the frequency, duration and supervision by a person designated by the Director of Youth Protection. [ 4 ] In September 2017, the parties signed an agreement on accessory measures and consent to judgment which provided that the Respondent would have the access rights as determined by the above-mentioned Youth Court decision and for as long as the Youth Court measures were in place, subject to the right to appeal or to seek revision. [ 5 ] These supervised access rights were exercised between September 2017 to June 14, 2018, following the Respondent’s release from jail.

The Director of Youth Protection closed his file in early July 2018 and, on July 14, 2018, the Petitioner introduced an Application seeking to deprive the Father of parental authority and to request an interim safeguard order. [ 6 ] The Application, which was presentable on August 3, 2018, was postponed twice, at the request of the Respondent’s lawyer: first, because that he was not available on the selected date and second, on August 23, 2018, because the lawyer’s mother had passed away two days prior.

None of the reasons for postponement involve the Respondent directly or indirectly or a lack of interest on his part. No visits occurred since as a result. [ 7 ] The hearing took place on October 18, 2018. [ 8 ] The Superior Court determined that there was no urgency to suspend the Respondent’s access rights and awarded him supervised access rights to his two children on a monthly basis, for a period of 2 hours per month, to be exercised out under [Center A]’s supervision.

In doing so, the judge gave consideration to the fact that the father had similar supervised access rights from September 2017 until June 14, 2018, in accordance with the Youth Court decision, which was referenced in the Divorce agreement signed by the parties, and that the reports made by the supervisor at [Center A] did not indicate “any bad behaviour from the father nor any anxiety or discomfort for the children.” [ 9 ] However, the Superior Court judge also granted the Petitioner’s request to have the children evaluated by Dr.

Abe Worenklein, psychologist, to assess the impact of the father’s presence in their life. As well, she authorized the father to obtain a complimentary expert report from Mr.

Raymond David, psychologist, which would not, however, involve the children. [ 10 ] The Petitioner seeks leave to appeal this interim judgment and asks that its conclusions be suspended until judgment is rendered in appeal. [ 11 ] She argues that the judgment determines in large part the dispute on the merits by confirming an aspect of parental authority (i.e. access), of an abuser whose parental authority the Petitioner is seeking to strike. This causes irreparable prejudice to the Petitioner herself but more importantly is contrary to the children’s best interest.

She claims that the Superior Court judge failed to consider the best

interest of a small, vulnerable and abused child, by compelling the boy to face his abuser on a regular basis. [ 12 ] The Petitioner also argues that the Superior Court judge committed a serious error by indicating that the Youth Protection reports show no issues during the supervised access between the Respondent and his son. On the contrary, the Petitioner states that the reports refer on many occasions to the son’s agitation, his nervous ticks and discomfort, his refusal to hug his father or maintain eye contact with him, or to talk about the incident (of sexual abuse).

In addition, the reports further indicate that the Respondent fails to “read” his son and recommends, as a result, that he seek adequate support. [ 13 ] Leave to appeal of an interim judgment is subject to the criteria set out at

article 31 C.p.c. In order to obtain leave, the Petitioner must demonstrate not only that the judgment decides the litigation in part but also that serious and irreparable prejudice is likely to be suffered if leave to appeal is not granted. [ 14 ] Such leave is only granted exceptionally, given the limited duration of the judgment and that, as stated by my colleague Bélanger, J.A., in Droit de la famille — 17358 [1] , the interim judgment is subject to modification and is rarely definitive [2] .

Indeed, it may well be modified at the time of its potential renewal or simply not be renewed at all. [ 15 ] In my view, the interim judgment cannot be said to decide the dispute on the merits which relates to the Respondent’s parental authority. The judge hearing the Application to deprive Respondent of parental authority will not be bound by the interim access rights granted to him. He cannot be said to be put before any “ fait accompli ” nor be bound by the “status quo”, given the temporary nature of the interim judgment.

Moreover, there is nothing precluding the Petitioner from contesting its renewal or seeking its modification in January 2019. [ 16 ] As far as serious prejudice is concerned, the arguments raised by the Petitioner may not be completely devoid of merit, in that there was discomfort observed on the part of the boy during his father’s initial visits at [Center A] (which were not mentioned by the Superior Court judge in the interim judgment).

However, the situation appears to have improved with time, according to the subsequent reports, especially during the months of April, May and June 2018, before the visits were interrupted. They refer to the boy looking “happy” and expressing it by the end of the meeting (in April 2018) and “looking great” (in June 2018). The fact that these visits will continue to be supervised by [Center A] also serves to ensure the childrens’ safety allowing for their immediate intervention, should any problem occur. [ 17 ] This, along with the fact that the children will be assessed by Dr.

Worenklein regarding the impact of their father’s presence in their life, serves to dissipate the fear of the children suffering real and serious harm by allowing the interim supervised access rights to continue until next January. Dr. Worenklein’s involvement will allow the possibility of raising a flag should there be any serious and damaging consequence arising from the two single meetings that will take place between now and January 17, 2019. If anything, these contacts may prove useful to Dr.

Worenklein in completing his assessment. [ 18 ] Failing the demonstration of the required criteria, I will not grant leave to appeal the interim judgment. Given my conclusion on leave, there is no need to address the suspension of execution of the judgment. FOR ALL OF THE ABOVE REASONS, THE UNDERSIGNED: [ 19 ] DISMISSES the Motion for leave to appeal an interim judgment and to suspend its execution; [ 20 ] WITHOUT legal costs, given the nature of the proceedings. GENEVIÈVE MARCOTTE, J.A.