2021 QCCA 356, 2021 QCCA 356

Droit de la famille — 21229 2021 QCCA 356 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029328-218 ( 550-12-035459-196 ) MINUTES OF HEARING DATE: February 26, 2021 THE HONOURABLE CHRISTINE BAUDOUIN, J.A. APPELLANT L. S. Unrepresented By videoconference RESPONDENT E. P. Unrepresented By videoconference DESCRIPTION: Application to suspend the provisional execution (Art. 660 C.P.P. ). Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING

12:03 Commencement of the hearing. Identification of counsel. Preliminary comments. 12:04 Submissions by Mrs S.. 12:18 Submissions by Mr P.. 12:26 Reply by Mrs S.. 12:29 BY THE JUDGE: Judgment will be rendered today and will be sent to the parties. 12:30 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] By judgment dated January 11, 2021, the Superior Court, district of Gatineau (the Honorable Mr.

Justice Pierre Dallaire), granted the parties’ divorce and issued various orders related to child custody, child support and partition of the family patrimony. [ 2 ] The parties are in the midst of a bitter dispute in which their three children are unfortunately involved. On February 4, 2021, the appellant filed a notice of appeal and is now seeking a stay of the judgment’s provisional execution. [ 3 ]

Article 660 of the Code of Civil Procedure states that a judgment is provisionally executed as of right if it concerns support payments or a support provision, determines arrangements regarding the custody of children or adjudicates on parental authority. [ 4 ] The applicable rules were summarized as follows by Bich, J.A. in Droit de la famille – 161548 , 2016 QCCA 1101 : [2] According to art. 660, first para., sub-para. 1, C.C.P. , provisional execution in matters of child or spousal support, child custody (including access rights) and parental authority is the rule.

A stay may be ordered, according to the last paragraph of art. 660, but remains exceptional.

The Court will indeed apply this provision strictly, with caution, considering the presumption of validity that judgments of a court of first instance enjoy and considering also that granting stays too liberally would thwart the very purpose of the first paragraph of art. 660 C.C.P . [3] Stay will therefore be granted only when the following cumulative conditions are met: 1° apparent weaknesses in the judgment appealed from or a serious question of law to be discussed, 2° risk of a serious and irreparable prejudice that must urgently be avoided, and 3° balance of inconvenience in favour of the stay.

In family matters, due to the vast discretionary powers of the trial judge and the exacti ng standard of appellate review , provisional execution will be stayed in the most exceptional of circumstances only.

In custody and access rights matters, the interest of the child will be primary in assessing the above-mentioned conditions. [4] Such were the rules and principles established by the Court under art. 547 and 550 of the former Code of Civil Procedure and which are applicable to the similar regime created by art. 660 and 661 C.C.P. [ 5 ] The appellant’s application does not fulfill the conditions under which the provisional execution of the judgment could be stayed. [ 6 ] The appellant argues that ‘’the trial judge erred in his judgment [by commiting] many errors of law and palpable and overriding errors in findings of facts. (…) On top of the many errors, the trial recordings related to the custody of Maxim were falsified (…)‘’. [ 7 ] Moreover, according to the appellant, the judge erred in his assessment of the evidence and failed to take into consideration much of the respondent’s very negative behaviour and the impact on their youngest child’s well-being. [ 8 ] The appellant was severely criticized by the trial judge for her unreasonable and ill-informed positions on various aspects of the case, particularly regarding child custody: ‘’ Based on all the evidence heard, the Court is concerned that the mother is doing everything she can to keep Maxim with her at the cost of alienating him from his father and his two brothers, who remain close to their father ‘’. [1] [ 9 ] The judge carefully reviewed the custodial situation, determined that it was in the youngest son’s best interest to establish shared custody since both parents have sufficient parenting abilities and since it will give him a chance to re-establish his relationship with his brothers. [ 10 ] There are no apparent flaws or weaknesses in the judgment insofar as custody is concerned, nor is there a serious question of law to be discussed.

I have no proof of any falsification of the trial recordings related to the child’s custody. [ 11 ] The appellant has not established that she will suffer irreparable prejudice should the judgment be provisionally executed. Besides a general allegation, the Motion and affidavit are silent in this regard. I cannot conclude that the child will suffer serious prejudice because of the decision regarding shared custody.

[ 12 ] Finally, the balance of inconvenience clearly weighs in favour of the respondent. FOR THE FOREGOING REASONS, THE UNDERSIGNED : [ 13 ] DISMISSES the Application to suspend the provisional execution, without costs. CHRISTINE BAUDOUIN, J.A.