2024 QCCS 409, 2024 QCCS 409

Droit de la famille — 24159 2024 QCCS 409 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-12-357387-236 DATE: February 6, 2024 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE CAROL COHEN, J.S.C. ______________________________________________________________________ S.C. Plaintiff v. V. S.

Defendant ______________________________________________________________________ TRANSCRIPTION [1] AND REASONS FOR JUDGMENT RENDERED VERBALLY ON FEBRUARY 5 TH , 2024; RECTIFIED ON FEBRUARY 6 TH 2024 ______________________________________________________________________ [ 1 ] The Defendant V. S. (the “Father”) has presented a 176 paragraph application for accessory measures and safeguard order (the “Application”) signed by him today, February 5 th , 2024. It was served upon Plaintiff S.

C. (the “Mother”) by email care of her attorney today at 12:03 pm, presentable at 2pm today in room 2.17, alleging extreme urgency. [ 2 ] The Application was referred to the undersigned for adjudication as a result of the urgency alleged by the Father, even though the Mother has not had the opportunity to respond by way of a sworn declaration.

The Father is asking, inter alia, for exclusive custody of the three minor children and exclusive use of the former family residence located on [Address 1] in Town A (the “Property A”). [ 3 ] The parties are the parents of 3 children, X, aged 7 and born on [...], 2016; Y, aged 6 and born on [...], 2017 and Z, aged 3 months and born on [...], 2023. [ 4 ] The present proceedings in divorce were instituted by Plaintiff on June 8 th , 2023, in the context of a highly conflictual relationship between the parents.

At the time of the institution of the divorce proceedings, the Mother listed her domicile as the Property A, while the Father’s address is listed at [Address 2], also in Town A (the “property B”), where his mother also resides. [ 5 ] On June 20 th , 2023, prior to the birth of Z, Justice Guylaine Duplessis refused an urgent request by the Mother to relocate on an interim basis to Town B, where her family resides, along with the two older children (the “Girls”), noting that the Court of Quebec, Youth division, had on February [...], 2023, granted joint parental time of the Girls to both parents, on the condition that they not be exposed to conjugal violence or conflicts between the parents and also that the parents reside in separate residences. [ 6 ] Justice Duplessis also noted the following with respect to the use of the property A, the former family residence: “ CONSIDÉRANT l’offre du défendeur de laisser l’usage de la residence familiale à la demanderesse pour exercer son temps parental avec les enfants pendant la période estivale et son engagement de ne pas s’y présenter…..ACCORDE à la demanderesse l’usage exclusif pour cette période de vacances de la résidence familiale ”. [ 7 ] The Mother moved to Town B in 2023, leaving the Girls with their Father pursuant to the judgment rendered by Justice Duplessis, and Z was born in Town B. [ 8 ] The Father’s Application alleges conflicts between the parties dating back to 2016, and the involvement of Youth Protection as of 2020.

Both parties have pressed criminal charges against the other party. However, as set out in the Father’s Application, the parties consistently reconciled following these altercations, and Youth Protection was no longer involved. [ 9 ] In December 2023, the parties signed a Final Consent to Judgment on Accessory Measures (the “Final Consent”), in anticipation of their divorce. This Final Consent was signed by the Mother in Town B on December 15 th , 2023, and by the Father in Town A, on December 18 th , 2023.

Each signed an affidavit for judgment on the divorce – the Mother’s affidavit dated December 18 th , 2023, listed her domicile and residence on [Address 3] in Town B. The Father’s affidavit, dated January 30 th , 2024, namely last week, commences as follows: “ I, the undersigned, V. S., domiciled and residing at [Address 2], Town A ..” The Father goes on to state at

paragraph 9 of his affidavit that the parties separated on April 5 th , 2023 and then at paragraph 10, he states the following: “ I reside at [Address 2], Town A, in the judicial district of Montreal, Province of Quebec, [...], and I have been doing for well over a year ”. [ 10 ] The Father’s Application dated February 5 th , 2024, supported by an affidavit in which he again states that he is domiciled and residing at [Address 2], alleges that the Mother is now “entrenched” in the home of the Father on [Address 1](paragraph 161) and that the Father and the Girls have been “enjoying exclusive use of the family home at [Address 1] since March of 2023” (paragraph 163). [ 11 ] He uses these allegations in support of his claim of extreme urgency and asks the Court, “on an urgent basis as a safeguard measure” to award him exclusive custody of the minor children X and Y to be exercised in the family home at [Address 1]” and to grant to him “exclusive use of the family home located at [Address 1]”, with an order that the Mother shall stay “100 meters away from the home of the Girls located at [Address 1]”.

He also asks for exclusive custody of the baby Z. [ 12 ] The undersigned granted the request by the Mother’s attorney for a delay in order to prepare an affidavit in response to the Father’s application, on the understanding that the Father would not produce any further affidavits or proceedings. [ 13 ] The Court will also appoint Me Isabel Brault attorney to the Girls, although Me Brault could not be contacted at this late hour. [ 14 ] On February 6 th , Me Brault came before the undersigned indicating that she accepted the mandate, although not on Legal Aid.

The Court therefore agreed to rectify its judgment based on the undertaking by the Father to pay her fees . [ 15 ] GIVEN that the Father’s Application was filed with a delay of only 2 hours, alleging urgency, and therefore that the Court file could not be located; [ 16 ] GIVEN that Mother alleges that she was raped by the Father, leading to the pregnancy and the birth of Z; [ 17 ] GIVEN when the parties were together, they resided in the residence located on [Address 1], in Town A; [ 18 ] GIVEN that the Father filed several affidavits in which he declared that he was domiciled and residing at [Address 2], in Town A, and not on [Address 1]; [ 19 ] GIVEN that the Father served his Application upon the Mother’s attorney today at 12:03 pm, presentable at 2pm; [ 20 ] GIVEN that in his Application, the Father alleges that the Mother arrived in Town A from Town B and that she is residing at the [Address 1] residence, which he claims is his property; [ 21 ] GIVEN that in his Application, the Father alleges that he and the Girls have been “enjoying exclusive use of the family home at [Address 1] since March of 2023” (paragraph 163), although in several proceedings, the Father claims that he has been domiciled and residing on [Address 2] for at least a year; [ 22 ] GIVEN that the Father is asking that the Mother stay away from the property A; [ 23 ] GIVEN that the Father has requested the appointment of an attorney for the Girls, and it is in the interests of the children and of justice, that an attorney be appointed to represent the Girls X and Y; [ 24 ] GIVEN that is it essential that the parties not discuss these proceedings in the presence of the minor children; [ 25 ] GIVEN that it is the interests of justice that the Mother be granted a delay in order to respond by affidavit to the Father’s Application; FOR THESE REASONS, THE COURT : [ 26 ] GRANTS to the mother S.

C. a delay until 6pm tomorrow, February 6 th , 2024, in order to prepare a sworn declaration in response to the Father’s Application, which shall be served upon the Father’s attorney by email, sent to the Court and the original brought to the Court on February 7 th , 2024; [ 27 ] DECLARES that the Father shall not have the right to file a sworn declaration in response to the Mother’s affidavait, without the permission of a judge of the Superior Court; [ 28 ] APPOINTS Mtre Isabelle Brault attorney to X and Y, with her fees to be paid by the Father in accordance with his undertaking ; [ 29 ] ORDERS the parties not to discuss this matter with or in the presence of the minor children and not to denigrate the other party in the presence or the earshot of the children; [ 30 ] ORDERS that Mtre Brault shall be the only person to speak to X and Y about these matters, judgments and the present file; [ 31 ] TAKES ACTE of the undertaking of Mtre Daniel Romano to send all of the proceedings and exhibits by noon tomorrow by e- mail to Me Brault, and to provide copies of the proceedings to the Court at the next hearing date should the file not be located; [ 32 ] FIXES the Father’s Application pro-forma in room 2.17 on February 7 2024 at 9h; [ 33 ] THE WHOLE without costs.

__________________________________ CAROL COHEN, J.S.C. Mtre Maurice Oiknine Attorney for the Plaintiff Mtre Muhammed Emre Barak Mtre Daniel Romano Mrs Rachel Aoun GOLDWATER, DUBÉ Attorneys for the Defendant Mtre Isabel Brault Attorney for children X and Y Dates of hearing : February 5 th and 6 th , 2024