2017 QCCA 697, 2017 QCCA 697

Droit de la famille — 17938 2017 QCCA 697 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026760-173 (500-04-068491-167) MINUTES OF THE HEARING DATE: April 28, 2017 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. APPELLANT COUNSEL SA. M. Mtre Pamela O'Reilly RESPONDENT COUNSEL S. D. Mtre Sonia Heyeur ( Heyeur Jessop ) DESCRIPTION: Amended application of the appellant to suspend the provisional execution and request for case management. (Article 660 C.C.P. ) Clerk: Elisabeth Lanctôt Courtroom: RC-18 HEARING

9:39 Commencement of the hearing. Identification of counsel. The judge addresses Mtre Pamela O’Reilly. 9:41 Filing of authorities by Mtre O’Reilly. Argumentation by Mtre O’Reilly. 9:59 Filing of authorities by Mtre Sonia Heyeur. Argumentation by Mtre Heyeur. 10:03 Filing of authorities by Mtre Heyeur. 10:07 Rebuttal by Mtre O’Reilly. 10:18 BY THE JUDGE : The hearing is suspended until 2:00. Judgment will be rendered at that time. 10:19 Suspension. 10:38 Resumption. Exchanges between the judge and the parties regarding the parties’ availabilities.

The parties’ attendance will not be required at 2:00. 10:44 Suspension. 2:00 Resumption. BY THE JUDGE : Judgment – see page 3. Conclusion of the hearing. (

s) Elisabeth Lanctôt Clerk BY THE JUDGE JUDGMENT [ 1 ] I am asked to adjudicate an application to suspend the provisional execution of a judgment rendered by the Superior Court, District of Montreal (the Honourable Karen Kear-Jodoin), which granted the parties “shared custody” of their 16 month old child in a progressive fashion.

It also established travelling periods and determined child support in accordance with the custody awarded. [ 2 ] The relevant conclusions of the judgment are as follows: [52] GRANTS shared custody of X to the parties as follows: • X shall reside with Mother save and except as hereinafter provided; • From April 21, 2017, until June 30, 2017, X shall reside with his Father every Tuesday and Thursday from after daycare until the following day at daycare and every Saturday from 5 PM until Sunday at 6 PM; • From June 30, 2017, until January 1, 2018, X shall reside with his Father from Tuesday and Thursday from after daycare until the following day at the daycare and every second Friday from 5 PM until Sunday at 6 PM; • Commencing January 1, 2018, X’s residential

schedule shall be determined on a 2-2-3 basis as follows : Monday Tuesday Wednesday Thrusday Friday Saturday Sunday Week 1 F F M M F F F Week 2 M M F F M M M [53] ORDERS that the exchange of X take place at the child’s daycare or at the parties’ respective residences if there is no daycare. [ 3 ] As a result, until June 30, 2017, if the execution is not suspended, the child will reside with the Respondent (Father) every Tuesday and Thursday evening (after daycare with a sleepover until the next morning), and Saturdays, from 5 pm until Sunday 6 pm (again with a sleepover).

Beginning on June 30, 2017 and until January 1, 2018, the weekend access will take place every second weekend, from Friday 5 pm to Sunday 6 pm.

[ 4 ]

Article 660 C.C.P provides for provisional execution notwithstanding appeal of the judgment determining arrangements regarding the custody of children. It does however also provide for the possibility for a judge of this Court to grant the suspension of the execution of a judgment under appeal. [ 5 ] In this regard,

article 660 C.P.P. in fine follows the previous case law developed under articles 550 and 760 of the former C.C.P . , in that it requires that three cumulative conditions be met in order for the suspension to be granted.

The applicant must demonstrate that: 1. the judgment under attack is seriously flawed, in that it contains major and apparent weaknesses; 2. its provisional execution is of such a nature as to cause serious or irreparable harm to the applicant; and, 3. the balance of inconvenience favours granting the suspension [1] . [ 6 ] In the case at hand, t he Appellant (Mother) asserts that in granting the custody arrangements, the trial judge erred in law and also committed several overriding and palpable errors of fact.

The errors of law raised in appeal are essentially the following: the judge failed to properly apply the criteria set out in Gordon c. Goertz [2] , in failing to consider the child’s current relationship with the Mother as primary caregiver and the young age of the child and the fact that he has never been separated from the Mother for more than 6 consecutive hours. She also raises the judge’s error in overemphasizing the need to maximize contact between the child and both parents at the cost of prohibiting the Mother from returning to France without legitimate grounds.

She asserts that the judge failed to outline the relevant criteria to implement shared custody and in so doing, failed to consider the best interest of an infant along with the right of the Mother to pursue her own path of life.

As far as the findings of fact are concerned, she raises a number of errors or inconsistencies (19 in total), including the judge’s statement that the “child continued to be breastfed until recently”, whereas the proof adduced demonstrated that breastfeeding was never discontinued. [ 7 ] Regarding the prejudice to be suffered if the conclusions regarding custody are not suspended until judgment is rendered in appeal, the Mother asserts that she will not be able to maintain proper breastfeeding and breastmilk supply without regularly nursing the child which will necessarily occur if the latter has 3 sleepovers per week with the Father as determined by the judgment.

She also claims that the child will irreparably suffer emotionally from the drastic change of

schedule and separation from the Mother with whom he has a primary bond. [ 8 ] In that regard, the Father underlines that the child already spends 5 days a week in daycare from 9 am to 3 pm and that the Mother pumps her breastmilk to provide the daycare with bottles of breastmilk. There is no demonstration on the part of the Mother that similar arrangements cannot be made when the child is with the Father to ensure that the child continues to be fed breastmilk.

Leaving breastfeeding aside, there is no demonstrated risk of leaving the 16 month old child in the care of his Father from the end of the day at daycare until the next morning (twice a week) and spending a full day per weekend (until June 30 th , 2017), thereby allowing the child to have contact with the Father and enjoy an overnight stay with him, or even two full days every second weekend commencing July 1 st , 2017. [ 9 ] As a result, the Mother fails to convince me that the three conditions required to allow me to grant the suspension are met. [ 10 ] For one, notwithstanding the number of issues raised, she does not demonstrate that the judgment contains important weaknesses.

She also fails to convince me that there is a serious prejudice likely to be caused to the child by the above detailed custody arrangement awaiting a hearing in appeal. I emphasize that the custody order was rendered after a three day hearing. The trial judge underlines at paragraph 29 of the judgment that the parties are “two exceptional, loving and devoted parents”.

The Mother fails to demonstrate that the risk invoked (with respect to the pursuit of breastfeeding and the emotional sufferings of the child) would outweigh the risk likely to be suffered if the child is prevented from developing proper ties with his father in the interval. [ 11 ] That being said, I will grant the request for case management and proceed to manage the appeal and fix a date for the hearing; THEREFORE, THE UNDERSIGNED: [ 12 ] DISMISSES the amended application to suspend provisional execution of the judgment rendered on April 24, 2017 by the Superior Court of the Montreal District (the honourable Karen-Kear Jodoin). [ 13 ] PLACES the case on the role of August 10, 2017 in room Pierre-Basile Mignault at 9:30am, for a 135 minutes hearing (75 minutes for the appellant and 60 minutes for the respondent); [ 14 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the Office of the Court, no later than June 16, 2017, five copies of a written argument not exceeding 20 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 15 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the Office of the Court, no later than July 10, 2017 , five copies of a written argument not exceeding 20 pages and of his supplementary documents; [ 16 ] DIRECTS the parties’ attention to

section 376 C.C.P . and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 17 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted ; [ 18 ] THE WHOLE , without legal costs, given the nature of the proceedings. GENEVIÈVE MARCOTTE, J.A.