2011 QCCA 2403, 2011 QCCA 2403

Droit de la famille — 114128 2011 QCCA 2403 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021978-119 (700-12-038262-077) DATE: DECEMBER 22, 2011 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARC BEAUREGARD, J.A. FRANÇOIS DOYON, J.A. D. L. APPELLANT – Plaintiff v. L. B. RESPONDENT – Defendant JUDGMENT [ 1 ] The Court, on appeal from a judgment of the Superior Court rendered on August 23, 2011 by the Honourable Jacques R.

Fournier, District of Terrebonne, which granted Respondent's Motion entitled Interim Order which specifically dealt with school issue of the minor child; [ 2 ] For the reasons of Chief Justice Nicole Duval Hesler and for the reasons of Mr. Justice Beauregard with which Mr. Justice Doyon concurs; [ 3 ] DISMISSES the appeal, without costs. NICOLE DUVAL HESLER, C.J.Q. MARC BEAUREGARD, J.A. FRANÇOIS DOYON, J.A. Mtre Anne-France Goldwater GOLDWATER, DUBÉ For Appellant Mtre Jacques Trudeau GAUTHIER PAQUETTE TRUDEAU BÉLANGER Mtre Suzanne H. Pringle and Mtre François J. Poirier SUZANNE H.

PRINGLE, AVOCATS For Respondent Date of hearing: November 30, 2011

REASONS OF DUVAL HESLER, C.J.Q. [ 4 ] Appellant's contention is that the parties went before the first judge to obtain a determination on a provision for costs.

The Respondent would have piggybacked the issues of school, custody and access rights on that hearing, with the first judge's consent. [ 5 ] In effect, Appellant argues that the first judge ordered a change of custody under the guise of issuing an Interim Order ; [ 6 ] The judgment under appeal is entitled Interim Order and dated August 23, 2011; [ 7 ] The Motion before the first judge was entitled: Requête du défendeur pour gestion particulière de l'instance, pour remise et pour ordonnance de sauvegarde ; it specifically dealt with the school issue; [ 8 ] Until July 1, 2011, Appellant lived in the former family residence in the proximity of Town A.

She still owns that residence. Respondent lived, and still does, in Town B, a locality close to Town A; [ 9 ] Expert reports which were to be filed at a later date were not available to the first judge. He heard fairly brief evidence from both parties and, of course, argument; [ 10 ] Paragraphs 9 to 15 of the Interim Order read as follows: [9] After seeing the affidavits, the exhibits and hearing viva voce evidence and argument for counsel, the Court for obvious reasons decided that it could only issue an interim order.

Doing otherwise would amount to deciding the custody issue without hearing the proper evidence and argument. [10] Plaintiff argues that there is no urgency to modify the status quo and that without urgency, there can be no interim order. [11] The Court obviously agrees with Plaintiff's position in law. Status quo has to be maintained and Plaintiff had no right to change it without seeking the Court's permission that would have been denied at any rate. [12] The question of custody is still pending since custody has never been decided otherwise than in a provisional way.

If Plaintiff is allowed at this point in time to move to Town C and to enrol the child in public school, she is on her own will modifying the status quo and creating a situation of fact that would put shared custody beyond the reach of the Defendant. [13] The move to Town C was not urgent and could have easily waited until such time the custody issue had been decided. [14] Therefore, there is urgency in intervening to re-establish the situation that existed before the move and Plaintiff will suffer little inconvenience since she still owns the house. [15] Whether the move was part of a strategy or not it cannot be condoned and the Court will not accept to be placed before a "fait accompli". [ 11 ] It is to be noted that in the parties' Consent to judgment, dated October 19, 2010 and homologated by the Court, it was agreed that the parties would jointly decide all issues regarding their child, including residence and choice of school.

However, it is not contested that Appellant acted unilaterally in deciding to move to Town C and in inscribing the child to a school there. Nor is it contested that the hearing of Respondent's Amended Motion for Custody, originally scheduled for June 2011, was postponed because Appellant's Expert Report was not ready; [ 12 ] The Order below was made binding "until such time the issue of custody is decided", which falls well within the purview of the first judge's discretion.

In addition, it would make little sense to have to revisit the issue of a choice of school every thirty days; [ 13 ] Appellant fails to convince the Court that the judge below improperly exercised his discretion in the matter at hand; [ 14 ] For these reasons, I would therefore dismiss the appeal, without costs in view of the nature of the case. NICOLE DUVAL HESLER, C.J.Q. REASONS OF BEAUREGARD, J.A. [ 15 ] Although Respondent's motion was entitled "Requête pour … ordonnance de sauvegarde" and that, under

article 813.3 C.C.P. , such a safeguard order lapses 30 days after it is issued, the parties pleaded the motion as if it were more or less a motion for an interlocutory injunction, so that Appellant's may not now argue that the first judge could not make his order valid until the question of the custody of the child was finally decided. Had appellant been successful, she would take the opposite stand.

[ 16 ] Even if an appeal may lie as of right from such an order, Appellant's counsel was ill advised in filing an appeal as the Court will intervene against such an interlocutory order only if it was patently wrong. [ 17 ] Given the agreement concerning the accessory measures, particularly the stipulation entitled "Autorité parentale et garde", Appellant did not show that she had a clear right to decide by herself alone which school the child would attend, and, consequently, she does not show that the interim order is manifestly wrong and should be overturned. [ 18 ] It is a pity that the question of the custody of the child cannot be decided otherwise than after a long and costly battle and the supposed necessity of hiring psychologists. [ 19 ] Inasmuch as Appellant has to move to Town C to earn her living and inasmuch as a joint custody is therefore not possible, one cannot see why a judge cannot swiftly decide, with no heavy costs to the parties, who, in the best interest of the child will be the guardian. [ 20 ] Counsel have the obligation to try to avoid these long and costly battles over the custody of a child or of children and to do their utmost to convince their clients to come to an amicable settlement. [ 21 ] I therefore agree with my colleagues to dismiss the appeal, without costs.

MARC BEAUREGARD, J.A.