2016 QCCA 1101, 2016 QCCA 1101

Droit de la famille — 161548 2016 QCCA 1101 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026152-165 (500-04-054646-105) DATE: JUNE 29, 2016 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. J. W. PETITIONER – Plaintiff v. C. L. RESPONDENT – Defendant JUDGMENT [ 1 ] The parties are the parents of a 6-year old child. They are in the midst of a protracted and bitter custodial dispute.

On May 27, 2016, the Superior Court, district of Montreal (the honourable Madam Justice Anne Jacob) granted, in part, the respondent's motion for unsupervised access rights to the child and decided other related issues. The appellant filed a notice of appeal on June 16, 2016 and she now seeks the suspension of the provisional execution of the judgment, insofar as access rights are concerned.

Subsidiarily, she seeks the following: ALTERNATIVELY , suspend overnight visits and fix the access rights every second weekend from Saturday 11h00 am until 17h00 until such time as this matter is heard by this Honourable Court on the merits; ORDER the supervised exchanges of the minor child be conducted at the A Centre and that Respondent be ordered to pay for same; * * [ 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. [1] [ 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 exacting standard of appellate review, [2] 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 [3] and which are applicable to the similar regime created by art. 660 and 661 C.C.P. [4] * * [ 5 ] The appellant's motion does not fulfill the conditions under which the provisional execution of the judgment may be stayed, as per the last para. of art. 660 C.C.P ., and it shall be dismissed. [ 6 ] The motion and notice of appeal indicate that the trial judge committed numerous overriding errors in both fact and law.

In my opinion, a careful reading of the reasons of the judge does not bear this out.

Her judgment explained at length why she decided that the respondent would, from now on, exercise his access rights to the child without supervision; she relied on the evidence showing all the efforts made and steps taken by the respondent over the years in order to improve his conduct and his relationship with the child, and she also relied on a recent, uncontested psychiatric report stating that the respondent does not suffer from any psychological pathology or condition that would prevent him from adequately taking care of the child.

This conclusion is also supported by the reports of the visits' supervisor. [ 7 ] Basically, the appellant disagrees with the judge. She would prefer that the respondent's access rights continue to be supervised, as they have been for the last three years, pursuant to an earlier judgment of the Superior Court. Her motion and notice of appeal reiterate and reformulate old grievances against the respondent, as evidenced by many of the exhibits filed in support of her proceedings, grievances which the judge took into account but ultimately dismissed. The appellant also disputes the weight (too much here, too little

there) that the judge attached to the testimonial and documentary evidence. She also claims that the judge completely ignored the fact that the respondent, who admitted to using marijuana on a daily basis, might thus be a danger to the child. [ 8 ] Indeed, the judgement does not mention the respondent's regular use of marijuana. According to the respondent's lawyer, this is not an error, since his client testified that he never used marijuana in the presence of his child [5] and intends not to use it while exercising his access rights.

The appellant's lawyer indicates that this is not her understanding of the respondent's testimony. The controversy can hardly be solved at this stage, but it is worth noting that the respondent's use of marijuana was disclosed to the psychiatric expert, who apparently did not see it as a threat to the child's safety or as an indication of inadequate parental abilities. [ 9 ] The rest of the judgment is devoid as well of any apparent weakness, i.e. of palpable flaws that would most likely lead to its reversal. [ 10 ] Furthermore, the appeal raises no important or serious question of law.

None of the grounds put forward in support of the application is indeed sufficient to justify a stay, as they relate to questions of fact and evaluation of evidence, which are the privileged domain of the trial judge. At best, it involves the application of well-known rules to a specific set of facts. This Court has repeatedly held that it owes significant deference to such decisions by trial judges.

I am not saying that the appeal has no chance of success but simply that, considering the limited information I have at hand, I cannot conclude that the judgment is palpably flawed in that respect, nor any other. [ 11 ] Neither can I conclude that the child will suffer a serious prejudice if she is allowed to see the respondent according to the modalities and progressive

schedule set out by the trial judge. On the contrary, she will now be allowed to develop a closer, more normal relationship with her father, which, as decided by the trial judge, is in her best interest. I understand that the appellant is worried, and particularly so because of the respondent's marijuana habit.

This, however, cannot, in the circumstances, justify that the respondent's rights of access be suspended or curtailed during the appeal. * * [ 12 ] Two points remain to be discussed. [ 13 ] The appellant draws my attention to the fact that the respondent is now reluctant to use the services of the A Centre, where the child is brought by one parent in order to be picked up by the other, and vice versa.

The respondent, through counsel, does not deny this fact, although he blames the appellant for not cooperating in finding a solution that would ease the exchange of the child between her parents. [ 14 ] Having heard the parties, I am of the view that the exchange of the child should continue to take place at the A Centre. Considering the restrictive no-contact orders imposed upon the respondent by the Court of Quebec, Criminal and Penal Division, this appears to be the best solution for the moment.

In view of this situation and the reasons thereof, and since the respondent pays no child support to the appellant, he should also continue paying all fees charged by the A Centre for its supervised exchange services.

An order will be rendered to that effect pursuant to art. 379 C.C.P. [ 15 ] Finally, considering that, according to his lawyer, the respondent is willing to abstain from using marijuana in the presence of the child or at any time when exercising his access rights, I will also order him to honour this commitment. * * [ 16 ] With the parties' consent and the appellate clerk having been apprised of the matter, I will set the date and time of the hearing and establish a calendar for the filing of the memorandums (art. 367 C.C.P. ) FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 17 ] Acknowledges the respondent's commitment to abstain from using marijuana in the presence of the child or at any time while exercising his access rights to the child; [ 18 ] ORDERS that the exchange of the child should continue to take place at the A Centre, the costs of which shall be assumed entirely by the respondent; [ 19 ] DISMISSES the appellant's application to suspend provisional execution; [ 20 ] PLACES the case on the roll of December 15, 2016, in room Pierre-Basile-Mignault, at 9:30 a.m. , for a 75-minute hearing (45 min for the appellant, 30 min for the respondent); [ 21 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the office of the Court, no later than September 16, 2016 , five copies of a written argument not exceeding 25 pages .

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, depositions, etc.) shall be attached; [ 22 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the office of the Court, no later than October 31, 2016 , five copies of a written argument not exceeding 25 pages and of his supplementary documents; [ 23 ] DIRECTS the parties’ attention to art. 376 C.C.P . and s. 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. Format. 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. [ 24 ] DIRECTS the parties’ attention to the Practice Direction G-3 of May 20, 2016, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search and stored on a CD/DVD ROM or USB- key; [ 25 ] Legal costs to be borne by each party pursuant to art. 340 C.C.P. MARIE-FRANCE BICH, J.A.

Mtre Muriel Librati TEITELBAUM LIBRATI For the petitioner Mtre Massimo Patrizio De Simone MASSIMO PATRIZIO DE SIMONE, AVOCAT For the respondent Date of hearing: June 22, 2016