2011 QCCA 1390, 2011 QCCA 1390

M.B. c. D.B. 2011 QCCA 1390 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021856-117 ( 505-14-007092-116 ) MINUTES OF THE HEARING DATE: July 20, 2011 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. PETITIONER /APPELLANT ATTORNEY M.B. Mtre Jacqueline Sanderson RESPONDENT ATTORNEY D.B. Mtre Isabelle Demers UNPLEADED PARTY ATTORNEY PUBLIC CURATOR J.B. Mtre Alexandre Leroux Personally

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT RENDERED ON JULY 13 th BY THE HONOURABLE MR. JUSTICE PAUL MAYER, DISTRICT OF LONGUEUIL. ( MOTION REFERRED TO A PANEL OF THE APPEAL COURT JULY 20, 2011, BY THE HONOURABLE MADAME JUSTICE MARIE-FRANCE BICH, J.A.) MOTION FOR SAFEGUARD ORDER.

Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 10 h 03 Submission by Mtre Jacqueline Sanderson on the motion for leave to appeal. 10 h 09 Argument of Mtre Isabelle Demers on the motion for leave to appeal and the motion for safeguard order. 10 h 33 Argument of Mtre Alexandre Leroux. 10 h 38 Reply by Mtre Jacqueline Sanderson, on the motion for leave to appeal and submission on the motion for safeguard order. 10 h 52 Reply by Mtre Isabelle Demers on the motion for safeguard order. 10 h 59 No reply by Mtre Alexandre Leroux. 10 h 59 Suspension of the hearing. 12 h 09 Resumption.

BY THE COURT : Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT

JUDGMENT [ 1 ] Petitioner seeks leave to appeal from an interlocutory judgment of July 13th, 2011, which granted a safeguard order and ordered petitioner to take care of the person of her father, the co-respondent, while he resides in Town A pending a hearing on the merits of the case currently before the Superior Court. [ 2 ] In due course, when such a hearing takes place in November of 2011, the Superior Court will determine whether the mandate in anticipation of the mandator’s incapacity given by the co-respondent to the respondent is to be homologated.

Meanwhile, however, the situation of the co-respondent is what is of foremost concern to the Court. [ 3 ] Petitioner’s position is perplexing, if not to say self-contradictory, for she informs this Court that she has no intention of complying with the order of July 13 th , 2011 – an order rendered after she had attorned to the jurisdiction of the Superior Court – but that she will agree to do so if leave is granted and if at least one, or perhaps several, of the conditions set out in the order are varied or lifted. [ 4 ] The central consideration in interlocutory proceedings of this nature usually is, and in this instance can only be, how to best protect the person who gave the mandate in anticipation of his own incapacity, namely here the co-respondent.

It is apparent from the record that this factor, in and of itself, weighs heavily in favour of modifying the terms of the safeguard order, so as to ensure that all appropriate steps are diligently taken to protect the co-respondent’s rights and his well-being. As this factor, perhaps for understandable reasons in light of the petitioner’s present attitude, appears not to have been given its due weight by the judge who granted the order, leave to appeal ought to be granted in part, and the safeguard order sought by the respondent ought also to be granted in the terms which follow.

FOR THESE REASONS , the Court: [ 5 ] GRANTS the petitioner’s motion for leave to appeal, but only in respect of the third, fourth, sixth and seventh paragraphs of the order appealed from, which read: ORDERS D.B. to return her father J.B. to his Old Age Home at [...], in Town A; ORDERS M.B. to immediately return to that said apartment all of Mr.

B.’s personal belongings and furniture; […] ORDERS that M.B. take care of the person of her father while he resides in Town A; AUTHORISES D.B. to make medical arrangements and appointments for her father and orders M.B. to respect, facilitate and abide with such appointments; all other paragraphs of the order below remaining in force pending the outcome of the appeal; [ 6 ] GRANTS in part the respondent’s motion for a safeguard order; [ 7 ] REPLACES the petitioner M.B. by the respondent D.B. as the party who is ordered to take care of the person of her father while he resides in Town A; [ 8 ] ORDERS the return of the co-respondent J.B. in apartment [...] of the [...], Town A, or to any other apartment in the same establishment where a similar level of care is provided to residents; [ 9 ] ORDERS the respondent D.B. to take all appropriate measures to ensure full compliance with the preceding two orders; [ 10 ] ORDERS pursuant to

article 550 C.C.P. the provisional execution of the following conclusion of the judgment of the Superior Court: AUTHORISES D.B. to make medical arrangements and appointments for her father and orders M.B. to respect, facilitate and abide with such appointments; [ 11 ] ORDERS the continuation of the proceedings in the Superior Court; [ 12 ] THE WHOLE with costs to follow the outcome of the appeal.

YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A.