2022 QCCA 169, 2022 QCCA 169

Droit de la famille — 22171 2022 QCCA 169 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029655-214 ( 500-04-077032-218 ) MINUTES OF HEARING DATE: February 4, 2022 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A. APPELLANT COUNSEL V. C. (V. CH. ) Mtre ANNE-FRANCE GOLDWATER (absent) Mtre ANA MARIA ZULUAGA (ABSENT) ( Goldwater, Dubé ) RESPONDENT COUNSEL C. P. Mtre IVAN CAI reac (ABSENT) IMPLEADED PARTY VI. CH.

ABSENT AND UNREPRESENTED On appeal from a judgment rendered on August 12, 2021 by the Honourable Annie Breault of the Superior Court , District of Montreal . DESCRIPTION: Application for permission to amend the Notice of Appeal. (Articles 206, 377 and 378 C.C.P .). Amended application for permission to present indispensable new evidence . (Article 380 C.C.P .). Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault

HEARING 9:33 Continuation of the hearing held on January 31, 2022. The parties were excused from appearing in Court. Judgment – see page 3. 9:35 Conclusion of the hearing. René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] The Appellant instituted an appeal from the Superior Court judgment, rendered on August 12, 2021, granting to Respondent, certain forms of contact with her grandchildren, Appellant’s two children, aged 8 and 2. [ 2 ] The Appellant seeks permission to present indispensable new evidence and to amend the Notice of Appeal if new evidence is permitted. The Respondent objects to both requests.

a) Documents from the Director of Youth Protection: [ 3 ] The Court is of the view that the reports from the Director of Youth Protection related to the “signalements” made on May 4, 2020 and July 28, 2020 (Schedule 7-

A) are relevant and capable of shaping the debate on appeal. These two “signalements” were discussed during the trial and referred to by the trial judge in her judgment. Despite making reasonable efforts, the Appellant was not able to obtain copies of these reports before the trial. She continued her efforts to obtain these reports after the trial, and she acted diligently after she obtained the redacted versions of them. At the hearing, the parties informed the Court that the Director of Youth Protection agreed to send the unredacted versions of these reports confidentially to the judges who will hear the appeal.

[ 4 ] Permission to file the report from the Director of Youth Protection regarding a “signalement” made on September 7, 2021 (Schedule 7-B), which was after the trial, and the “suivi des activités” (Schedule 7-

C) is not granted because they are neither relevant nor necessary for the purposes of this appeal.

b) The Transcription and Translation of the Respondent’s Testimony [ 5 ] The Respondent withdrew her objection to the filing of this document (Schedule 8) after she received information (at the hearing before the Court) about the qualifications of the translator who prepared the translation of her testimony. She informed the Court of her intention to request leave to file a revised translation should she feel it necessary to do so.

c) Judgment Dated December 23, 2021 granting the Motion to Homologate a Consent to Judgment Signed by the Parties on December 10 and 14, 2021 [ 6 ] The Respondent agrees to the filing of this judgment (Schedule 10). Therefore, the Court will allow its filling without taking any position as to whether it could qualify as new evidence under

article 380 of the Code of Civil Procedure. [ 7 ] Finally, the Court notes that, at the hearing, the Appellant withdrew her request to file letters exchanged between the parties’ lawyers after the judgment under appeal was rendered. [ 8 ] In light of our decision to allow new evidence, we will allow the Notice of Appeal to be amended so that it can take account of the new evidence. The Notice of Appeal, as amended on November 26, 2021, is allowed except for paragraph 36.2.

FOR THESE REASONS, THE COURT : [ 9 ] GRANTS in part the Application to Amend the Notice of Appeal; [ 10 ] ALLOWS the filing of the Amended Notice of Appeal on November 26, 2021, except for paragraph 36.2; [ 11 ] GRANTS in part the Application for Permission to Present Indispensable New Evidence; [ 12 ] AUTHORIZES the Appellant to file in support of her factum the following documents:

a) Redacted Reports from the Director of Youth Protection of the “signalements” made on May 4, 2020 and July 28, 2020 (Schedule 7- A);

b) Transcription of Respondent’s Testimony and its Translation of Her Answers from Spanish to French (Schedule 8);

c) Judgement dated December 23 2021, Granting the Motion to Homologate a Consent to Judgment Signed by the Parties on December 10 and 14, 2021 (Schedule 10); [ 13 ] AUTHORIZES the Director of Youth Protection, upon the written consent of the parties, to file as confidential documents, the unredacted version of the reports of the “signalements” made on May 4, 2020 and July 28, 2020; [ 14 ] REFERS the question as to the admissibility of this new evidence, and should it be judged admissible, the probative weight that should be attributed thereto to the panel that will hear the appeal on the merits; [ 15 ] Without judicial costs, given the nature of the file.

MANON SAVARD, C.J.Q. ROBERT M. MAINVILLE, J.A. PETER KALICHMAN, J.A.