2023 QCCA 1060, 2023 QCCA 1060

Droit de la famille — 231460 2023 QCCA 1060 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030654-230 ( 500-12-352503-217 ) 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 (art. 16 C.C.P .). DATE: August 17, 2023 THE HONOURABLE PATRICK HEALY, J.A. APPELLANT/INCIDENTAL RESPONDENT COUNSEL M. B.

Mtre NICOLAS LAPIERRE ( Brigitte Brunet Avocats ) Absent RESPONDENT/INCIDENTAL APPELLANT COUNSEL S. M. Mtre CATHERINE BRISEBOIS ( Pringle et Associé

s) Absent DESCRIPTION: Application by the appellant to suspend the provisional execution (Article 660 C.C.P. ). Application by the appellant to extend the expiration of the time fixed for instituting an appeal ( Article 21(4) of the Divorce Act ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING Continuation of the hearing held on August 15, 2023. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 3.

Anne Dumont, 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 (art. 16 C.C.P .). [ 1 ] The petitioner seeks an order to suspend pending appeal against a judgment of divorce in which, among various conclusions, the Superior Court authorised the respondent to move permanently to the United Kingdom with the child of the parties who is now eight. [1] [ 2 ] The suspension of such a judgment is a discretionary order that may be granted by a single judge sparingly as an exception to the statutory rule of provisional execution only if the petitioner satisfies three cumulative conditions: (1) that the judgment is apparently unsound; (2) that provisional execution of the judgment will cause serious prejudice to the petitioner; and (3) that the balance of inconvenience favours an exception to the rule of provisional execution. [2] The burden to meet these conditions is substantial. [3] Further, as the parties acknowledge that the judge observed the applicable principles, [4] the standard of review in this matter compels substantial deference to the appreciation of those principles by the Superior Court. [5] [ 3 ] The difficulty in a case such as this is apparent, as may be seen in the reasons of the Superior Court that include this statement: “I have weighed the considerations – the ‘pros’ and the ‘cons’ of the proposed relocation – and conclude that the balance tips slightly in favour of authorizing the move.” [6] The difficulty lies in the word “slightly.” It connotes but does not measure the strength of competing considerations.

Nevertheless, before the binary alternative presented in the circumstances, it marks clearly a conclusion in favour of the proposed relocation. [ 4 ] First, there is no indication that the trial judge failed to consider the best interests of the child and for this reason there is no apparent error of principle in the judgment of the Superior Court. [7] [ 5 ] Second, it is inherent in the nature of these proceedings that one or both parties will be displeased in some measure by the result but disappointment is not synonymous with prejudice that will justify an exception to the rule of provisional execution. [8] [ 6 ] Third, it is also inherently inevitable in the nature of these proceedings that both parties and their child will endure inconvenience and even hardship but, again, there is no reason to suspend provisional execution required by the legislature if the order of the Superior Court minimises the distribution of inconvenience in accordance with the best interests of the child. [9] [ 7 ] In short, the petitioner has not advanced a sufficient reason to displace the rule of provisional execution under

Article 660 C.C.P . and has not established any palpable and overriding error of principle or any such error in the application of appropriate principles. [ 8 ] The parties have agreed that the delay for appeal should be extended and for this reason the motion to that effect will be granted according to its conclusions. FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the application to suspend the provisional execution and given the nature of these proceedings, without the costs of justice; [ 10 ] GRANTS the motion for extension of the delay to appeal without the costs of justice. PATRICK HEALY, J.A.