2022 QCCA 1262, 2022 QCCA 1262

Droit de la famille — 221575 2022 QCCA 1262 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029655-214 ( 500-04-077032-218 ) 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 (arts. 15 and 16 C.C.P .). DATE: September 14, 2022 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A.

CHRISTINE BAUDOUIN, J.A. APPELLANT COUNSEL V. C. ( V. CH.) Mtre ANNE-FRANCE GOLDWATER Mtre ANA MARIA ZULUAGA ( Goldwater, Dubé ) By videoconference RESPONDENT COUNSEL C. P. Mtre IVAN CAIREAC 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 .

NATURE OF THE APPEAL: Family – Grandmother's rights of access and contact with respect to grandchildren. Amended application for permission to present indispensable new evidence (Article 380 C.C.P. ). Application to suspend provisional execution and for case management – Case management referred (Articles 367 and 660 C.C.P. ). Appellant’s application for permission to present indispensable new evidence (Article 380 C.C.P. ). Respondent’s Application for permission to present indispensable new evidence (Article 380 C.C.P. ).

Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault HEARING 9:30 Commencement of the hearing. Identification of counsel. 9:32 Discussion between the Court and Mtre Goldwater. 9:34 Submissions by Mtre Goldwater. 9:36 Question by the Court and response by Mtre Goldwater. 9:38 Mtre Golwater resumes her submisisons. 9:48 Comment by the Court. 9:49 Discussion between the Court and Mtre Goldwater. 9:50 Submissions by Mtre Caireac. 9:52 Questions by the Court and responses by Mtre Caireac. 10:00 Reply by Mtre Goldwater. 10:07 Recess of the hearing. 10:35 Resumption of the hearing.

On the merit of the appeal: Submissions by Mtre Goldwater Questions by the Court and responses by Mtre Goldwater. 11:01 Submission by Mtre Caireac. 11:13 Recess of the hearing. 11:20 Resumption of the hearing. BY THE COURT: Judgment – see page 4. 11:22 Conclusion of the hearing. Lesly Ramos, 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 (arts. 15 and 16 C.C.P .). [ 1 ] We are of the view, and it is unanimous, that the judgment of August 12, 2021, by Justice Breault was well-founded in light of the record as it then stood before her. For this reason, the appeal must be dismissed.

Reasons will be given in writing and to that effect later this week. [ 2 ] We are also unanimously of the view that the events subsequent to the judgment of first instance may justify a motion to vary the orders that were rendered on August 12 last. This is a matter, however, which can only be dealt with in the Superior Court as this Court is in no position to adequately examine and weigh contradictory expert opinions by experts who have not yet testified in court. [ 3 ] The motion to adduce new evidence which was granted by the Court on February 4, 2022, will be addressed in the written reasons to follow.

The motions to adduce new evidence of September 1 and 9 last are dismissed. [ 4 ] This being a family matter, there will be no costs. THE COURT: [ 5 ] DISMISSES the motions to adduce new evidence of September 1 and 9, without costs given its nature. [ 6 ] DISMISSES the appeal.

REASONS IN SUPPORT OF THE JUDGMENT RENDERED IN COURT ON SEPTEMBER 14, 2022 [ 7 ] This is an appeal from a judgment of the Superior Court, District of Montreal (the Honourable Justice Annie Breault), dated August 12, 2021, that granted Respondent various forms of contact with her two grandchildren aged 8 and 2, and dismissed the request of the parents (Appellant and Impleaded party) to keep their address confidential from Respondent. [1] [ 8 ] The Court heard the parties’ arguments on September 14, 2022 and, on that same day, rendered an oral judgment in which it dismissed with reasons the parties’ respective motions to adduce new evidence (the reports of two psychological experts) as well as dismissed the appeal without costs but with reasons to follow.

Here are those reasons. [ 9 ] The trial judge’s decision is comprehensive and demonstrates a correct understanding of the relevant legal principles. She correctly noted that

article 611 C.C.Q . creates a legal presumption that it is in the children’s best interests to maintain personal relations with their grandparents. [2] She further added, and correctly so, that this presumption may be rebutted by the parents if they demonstrate grave reasons for opposing those personal relations. [3] Lastly, and perhaps most importantly, the trial judge rightly underscored the paramountcy of the children’s interests over those of the parents or grandparents, a principle which is codified in

article 33 C.C.Q. [ 10 ] While acknowledging the existence of a conflict between the parties, the judge concluded that the evidence before her did not establish real and objective harmful effects of that conflict on the children, and, as such, held that there were no grave reasons to deny the children their right to a personal relationship with Respondent.

This factual determination [4] was largely based on the close relationship between Respondent and the older child (a fact which was undisputed), the limited probative value of the psychotherapeutic report on record (its content relating to Appellant’s personal needs only) [5] as well as on a number of credibility assessments, most notably that Appellant lacked objectivity and rationality, whereas Respondent offered a nuanced and sincere testimony [6] .

These findings are entitled to deference on appeal absent palpable and overriding error. [7] The Court is satisfied that the judge made no such error, despite Appellant’s claim to the contrary. [ 11 ] On February 4, 2022, this Court granted in part Appellant’s Application for Permission to Present Indispensable New evidence. The following conclusions were rendered: [8] [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;

[ 12 ] In our view, this new evidence does not change the matter in a material way. [ 13 ] First, the redacted reports of the Director of Youth Protection (and even the unredacted reports, with respect to which we are seized with the question of their admissibility) do not support Appellant’s allegation that Respondent falsely reported her to the DYP [9] . In fact, they tend to show the opposite. Respondent provided written authorisation so that Appellant may compel the DYP to reveal whether she is the author of the complaints in issue. [10] The DYP has since provided this Court with the unredacted reports and, in conformity with

article 44 of the Youth Protection Act , [11] has advised that it is not in a position to reveal the identity of the person who made the complaints. The only logical inference that may be drawn from this is that Respondent is, in fact, not the author of the complaints. In the circumstances, the question of the admissibility (or inadmissibility) of the unredacted DYP reports becomes moot and need not to be decided insofar as their content as no bearing on the outcome of the appeal [12] . [ 14 ] Second, the revised translation of Respondent’s testimony is nothing short of a reiteration of the simultaneous

interpretation that was before the trial judge, save a few minor linguistic discrepancies, and does little to substantiate Appellant’s bold claim that Respondent “has a pathological belief that she is the actual mother of the children” [13] . [ 15 ] Third, the judgment granting the homologation of a consent to judgment between the parties has no bearing on the outcome of the appeal.

Although this judgment mentions difficulties in the execution of the impugned judgment and homologates the parties’ agreement to proceed with two psychological reports, its relevance with respect to the issues before this Court remains, at best, questionable. Difficulties in the execution of a judgment do not translate into a reviewable error on part of the trial judge. [ 16 ] Lastly, the Court finds no error or improper exercise of discretion in the dismissal of the parents’ request to keep their address confidential from Respondent.

This decision fell well within the scope of the judge’s discretion [14] , and she carefully explained her reasons for dismissing it. The Court adds that contrary to what Appellant seems to imply in her written submissions, [15] the disclosure of her address to Respondent is indeed necessary for the proper execution of the judgment, if only because Respondent was granted the right to write letters to the children. [16] [ 17 ] The foregoing are the reasons for the judgment, rendered at the hearing, by which the Court dismissed the appeal without costs. YVES-MARIE MORISSETTE, J.A. STEPHEN W. HAMILTON, J.A.

CHRISTINE BAUDOUIN, J.A. 44. No person shall reveal or be compelled to reveal the identity of a person who has acted in accordance with

section 39, 40 or 42, without his consent. 44. Nul ne peut dévoiler ou être contraint de dévoiler l’identité d’une personne qui a agi conformément aux articles 39, 40 ou 42, sans son consentement.