2023 QCCA 1092, 2023 QCCA 1092

Droit de la famille — 231526 2023 QCCA 1092 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030265-227 ( 500-12-339456-182 ) 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: September 1, 2023 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. STEPHEN W. HAMILTON, J.A. PETER KALICHMAN, J.A. APPELLANT COUNSEL K. Z. Mtre MICHAEL N. BERGMAN Mtre DONA OBEID ( Bergman & Associé

s) Absent RESPONDENT P. S. ABSENT AND UNREPRESENTED IMPLEADED PARTY COUNSEL DIRECTOR OF YOUTH PROTECTION Mtre HEIDI LECHTER ( CIUSSS de l'ouest de l'île de Montréal ) Absent On appeal from a judgment rendered on September 27, 2022 and rectified on October 11, 2022 by the Honourable Guylaine Duplessis of the Superior Court , District of Montreal .

NATURE OF THE APPEAL: Family – Child support – Declaratory judgment – Abuse of process. Clerk at the hearing : Chloé Côté-Sauvageau Courtroom: Pierre-Basile-Mignault HEARING 9:30 Continuation of the hearing held on August 31, 2023. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4.

Chloé Côté-Sauvageau, 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 ] This is an appeal from a judgment rendered on October 11, 2022, by the Superior Court (the Honourable Guylaine Duplessis), pronouncing the parties’ divorce, adjudicating certain issues of a financial nature, and declaring that the appellant had acted abusively in bringing certain proceedings before the Superior Court. *** [ 2 ] The couple were married in 2008, which is the year in which their daughter was born. [ 3 ] In December of 2017, following an application by the Director of Youth Protection (the DYP ), the child’s security and development were declared to be in danger by the Court of Quebec, Youth Division (the Honourable Paul Grzela).

The appellant (the Mother ) was granted custody of the child and the respondent (the Father ), was allowed supervised visits. [ 4 ] In June of 2018, the Father brought divorce proceedings in the Superior Court and sought shared custody. [ 5 ] In August of 2018, the Superior Court homologated a partial consent to judgment on accessory measures, which provided, among other things, for the Mother to have custody of the child and the Father’s access rights to continue to be determined by the DYP. [ 6 ] On [...], 2020, the Quebec Court, Youth Division, ordered that the child be placed with a foster family in light of her refusal to see the Father and allegations of parental alienation against the Mother.

On [...], 2020, a new order was issued that the child gradually be integrated into the Father’s home and later that month, she moved in with him. [ 7 ] These decisions led to a flurry of proceedings in the Superior Court by the Mother, including: ➢ In August, 2020, an application for judicial review of the [...] and [...], 2020, judgments of the Court of Quebec, Youth Division as well as notices of appeal of both decisions.

These applications were subsequently amended to add two additional orders of the Quebec Court, Youth Division. ➢ In December, 2020, an application for a safeguard order, alleging that the DYP is no longer competent to act since the security and development of the child are no longer in danger;

➢ In April, 2021, an application to “dismiss jurisdiction of DYP”, arguing that all decisions regarding the child should now be taken in Superior Court. [ 8 ] The Father presented applications to dismiss the Mother’s judicial review application and her appeal on the basis that they were legally unfounded.

He also brought an application to have the Mother’s proceedings declared abusive and to have her declared a quarrelsome litigant. [ 9 ] On August 27, 2021, the Superior Court (the Honourable Babak Barin), granted the Father’s applications to dismiss and dismissed the Mother’s application to declare that the DYP was no longer competent to act. The Father’s applications to have the Mother’s proceedings declared abusive were postponed by several weeks in order that they be heard by the judge seized of the merits of the divorce case. [ 10 ] The trial began as scheduled on September 13, 2021.

At the outset, there was a debate as to whether the judge would decide the issues of parental time and child support.

The judge rendered her decision on that issue the following day, September 14, 2021, declining jurisdiction in favour of the Court of Quebec, Youth Division. [ 11 ] After a reopening of the hearing in April, 2022, the judgment was rendered on October 11, 2022. [ 12 ] Regarding financial issues, the judge fixes the child support payments to be made by the Mother and orders the Father to pay a portion of the particular expenses claimed by the Mother. [ 13 ] On the issue of abuse, Justice Duplessis analyses in detail the four applications brought by the Mother which Justice Barin had dismissed, namely her appeal of the [...] and [...], 2020 decisions of the Court of Quebec, Youth Division, her application for judicial review of those same decisions, her application for a safeguard order and her application to declare that the DYP is no longer competent.

She concludes that they are manifestly unfounded and result from the Mother’s refusal to accept decisions rendered by the Court of Quebec regarding the child and her desire to ensure that this issue be dealt with instead by the Superior Court. The judge concludes that the Mother’s proceedings are abusive and orders her to pay the Father $5,000 in damages, which is far less than the $40,000 the Father claimed. She dismisses the Father’s application to have the Mother declared a quarrelsome litigant. *** [ 14 ] The appellant raises four grounds of appeal, namely that the judge erred: (

i) in declining jurisdiction in favour of the Quebec Court, Youth Division regarding custody and parental time; (ii) in calculating child support payments; (iii) in failing to grant her request for certain particular expenses; and (iv) in concluding that she had acted abusively. [ 15 ] For the reasons that follow, the appeal will be dismissed. [ 16 ] As far as the first question is concerned, the appeal, assuming it had been properly formed, is now academic since the Quebec Court, Youth Division is no longer seized of the matter, having accepted the discontinuance of the DYP.

To the extent that the issues of custody and parental time must still be adjudicated, they will have to be brought before the Superior Court, which is precisely the conclusion sought by the Mother. [ 17 ] The second and third questions are entirely factual in nature and the Mother has failed to demonstrate a palpable and overriding error in the judgment.

Furthermore, her argument that the judge erred in fixing child support payments because she failed to take account of the division of parental time, is based on evidence that is not in the record and cannot therefore be considered. [ 18 ] Finally, with respect to the question of abuse, the Mother maintains that the judge could not rule on the Father’s application because the proceedings at issue were not taken in the divorce file. [ 19 ] This argument is entirely without merit.

Justice Barin referred the Father’s application for a declaration of abuse to the trial judge, apparently because there was insufficient time in which to deal with it. The judgment clearly refers to the proceedings which were the subject of the application for abuse.

The fact that the judge does not reference the different court numbers in which those proceedings were brought is of no consequence. [ 20 ] As far as the merits of the judge’s determination of abuse is concerned, the Court is of the view that she was well within her discretion to declare at least some of the proceedings brought by the Mother were excessive, unreasonable and clearly unfounded. There is no reviewable error in her conclusion. FOR THESE REASONS, THE COURT: [ 21 ] DISMISSES the appeal without judicial costs, given the nature of the matter. MARTIN VAUCLAIR, J.A. STEPHEN W. HAMILTON, J.A.

PETER KALICHMAN, J.A.