2019 QCCA 768, 2019 QCCA 768

Protection de la jeunesse — 192090 2019 QCCA 768 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-08-000532-194 (500-24-000316-181, 525-41-027734-136, 525-41-027735-133) MINUTES OF THE HEARING DATE: April 30, 2019 CORAM: THE HONOURABLE NICHOLAS KASIRER , J.A. JOCELYN F. RANCOURT , J.A. STEPHANE SANSFAÇON , J.A. APPELLANT A IN PERSON RE SPONDENTS COUNSEL DIRECTRICE DE LA PROTECTION DE LA JEUNESSE DU CIUSSS A Mtre LAURA BROCHU (Des Marchais Leclerc Dandavino Avocats) B Mtre SUZY-ANNE BOUVERET (Turbide Lefebvre Parizeau Avocats) IMPLEADED PARTIES X Y Mtre CLAUDINE DU SABLON (absent) (Astell Lachance Du Sablon De Sua)

On appeal from a judgment rendered on January 31, 2019 by the Honourable Justice Karen Kear-Jodoin of the Superior Court, District A DESCRIPTION : Application to dismiss the appeal (Article 365 C.C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING The hearing of the motion took place on April 29, 2019. JUDGMENT – SEE PAGE 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] A has filed a notice of appeal of a judgment of the Superior Court, District A (the Honourable Karen Kear-Jodoin), rendered on January 31, 2019, which dismissed summarily his appeal from a judgment of the Court of Québec, Youth Division (the Honourable Carole Brosseau), the latter rendered on June 14, 2018 after a seven-day trial. [ 2 ] Appellant A has chosen to represent himself without the assistance of counsel. [ 3 ] The 201-paragraph trial judgment in the Court of Québec was rendered following proceedings taken under the Youth Protection Act , CQLR, c.

P-34.1 relating to the security and development of the two minor children of the appellant and his former spouse, the respondent B. [ 4 ] Brosseau J. concluded that the security and development of the two children remained compromised and she revised existing orders of her Court rendered on January 13, 2014.

She decided, inter alia , that the children should be confided to foster care families with which they were already living; she withdrew the exercise of certain attributes of parental authority from the appellant; she ordered that the modalities of contact between the appellant and the children, on the one hand, and between the respondent and the children, on the other hand, be determined by the Directrice de la protection de la jeunesse (the “DPJ”); and she rendered other orders as well relating to the well-being of the children, the whole for a period of 18 months and susceptible of execution notwithstanding appeal. [ 5 ] Brosseau J. also declared the appellant’s proceeding for the reopening of the hearing to be abusive and declared him to be a vexatious litigant before the Court of Québec. ***

[ 6 ] The notice of appeal proposes that the judge of the Court of Québec made multiples errors at trial relating to her measure of the children’s well-being and the terms for their interaction with the appellant. [ 7 ] The petitioner’s principal complaint is that “the trial judge took away all of my parental rights without any proof and I never did anything wrong to my daughters”.

It was a further error to confide the children to the care of the DPJ and then to place them in separate foster homes where they are not being attended to correctly and they risk losing contact with their cultural heritage. [ 8 ] Sitting in appeal, the Superior Court is said to have erred by confirming the trial judge on this matter, thereby rendering a decision “that is not in the best interest of my daughters, today [aged] nine and seven”. [ 9 ] The appellant further asserts that the trial judge “erred in law” by deciding that he was a vexatious and quarrelsome litigant.

He states that he had previously been represented by three separate lawyers but, for financial reasons, was required to represent himself in the more recent proceedings, including in first instance and on appeal in the Superior Court. [ 10 ] The judge of the Superior Court also supposedly erred in law in dismissing his appeal on this point. *** [ 11 ] In a motion to dismiss the appeal, the respondent DPJ argues that the appeal from the judgment of the Superior Court was improperly initiated and that, in any event, it has no reasonable prospect of success. [ 12 ] The appeal as it relates to (

I) the security and development of the children and accessory matters under the Youth Protection Act ; and (II) the declaration that the appellant is a vexatious litigant shall be considered separately. I Matters relating to the security and development of the children under the Youth Protection Act . [ 13 ] Was the appeal properly initiated in this regard? [ 14 ] The judgment of the Superior Court sitting in appeal from the trial decision of the Court of Québec is susceptible of appeal only with leave and only in the limited circumstances set forth in

section 115 of the Youth Protection Act which provides: 115. Il peut être interjeté appel à la Cour d'appel, avec la permission de l'un de ses juges, d'un jugement de la Cour supérieure rendu sous l'autorité de la présente loi, si la

partie qui présente la demande démontre un intérêt suffisant à faire décider d'une question de droit seulement. 115. An appeal lies to the Court of Appeal, with leave of a judge of that Court, from any judgment of the Superior Court rendered under the authority of this Act, if the party making the application shows a sufficient interest to warrant decision on a question of law only. [ 15 ] In respect of the grounds of appeal pertaining directly to the circumstances of the children pursuant to the Youth Protection Act , leave to appeal is unquestionably required. [ 16 ] Mr. A has failed to seek leave.

As such, the appeal as it relates to these grounds is “improperly initiated / irrégulièrement formé ” within the meaning of

article 365 C.C.P. and should be dismissed on this basis alone. [ 17 ] Even if he had sought leave on the grounds relating to the Youth Protection Act , the Court would have declined to grant it. [ 18 ]

Section 115 is categorical: leave is only granted where a petitioner shows sufficient interest in a question of law alone: see, e.g ., Protection de la jeunesse – 183660 , 2018 QCCA 1119 ( per St-Pierre, J.A., in chambers); Protection de la jeunesse – 122 , 2012 QCCA 15 ( per Bich, J.A., in chambers); Protection de la jeunesse – 114147 , 2011 QCCA 1572 ( per Morissette, J.A., in chambers). [ 19 ] Moreover, it is insufficient to raise just any question of law. A petitioner, in his or her motion for leave, must show a “sufficient interest to warrant decision on a question of law only / intérêt suffisant à faire décider d’une question de droit seulement ”, according to

section 115. This reference to a “sufficient interest” is a plain direction that the question should be, as a general rule, one that has a resonance for the administration of justice in youth protection matters beyond the narrow compass of the interests of the parties to the dispute. An analogy may be made, notwithstanding the difference in context, to the requirement for leave as stated in

article 291 of the Code of Penal Procedure which requires “sufficient interest in a question of law alone / intérêt suffisant pour faire décider d’une question de droit seulement” as interpreted in, e.g ., Morin v. R ., 2009 QCCA 109 , paras [4] and [5] ( per Chamberland, J.A., in chambers). [ 20 ] No such question is raised here. [ 21 ] As it relates to the children, the notice for leave alludes to a range of “questions of law” relating to the decision to confide the children to foster care and limit the petitioner’s contact with them. None of these constitutes a question of law.

They all bear on the supposedly erroneous findings of fact by Brosseau J. who found that the children’s security and development was compromised, that their best interest required that they remain in foster care and that contact with their father be limited. This is true as well for the measure of whether the appellant’s conduct justifies the various orders, including the withdrawal of the exercise of certain attributes of parental authority, and the choice to leave the two children in their current foster homes.

These are findings of fact or, at best, findings relating to mixed questions of law and fact, but not questions of law. [ 22 ] In any event, s. 115 of the Youth Protection Act recalls that the appeal is from the intermediate appeal judgment of the Superior Court. No question of law of sufficient interest is raised in respect of that judgment in the notice of appeal. II The Declaration that the Appellant is a Vexatious Litigant

[ 23 ] The trial judge, after a long analysis of the applicable law and the facts at hand, concluded that the appellant’s conduct before the Court of Québec was such that he should be declared a vexatious litigant. [ 24 ] The appeal judge in the Superior Court concluded, in paragraph [22] of her reasons, that the judge in the Court of Québec had correctly set forth the applicable law relating to vexatious litigants and had provided “a meticulous analysis of the evidence, giving numerous examples of Father’s conduct to justify her conclusion”. (It may be noted that the Superior Court judge herself declined to find that the “declaration of appeal” was abusive and made no finding of vexatious or quarrelsome conduct on appeal). [ 25 ] In his notice of appeal, the appellant states that the trial judge erred in deciding that he is a vexatious litigant, but raises no question of law in his complaint.

He adds that the Superior Court committed an “error of law” in dismissing the appeal but makes no particularized argument of law in respect of the decision to confirm the finding at trial that his conduct was vexatious. [ 26 ] Is the alleged error of law in respect of the decision to declare the appellant a vexatious and quarrelsome litigant susceptible of appeal as of right or does it require leave? [ 27 ] Even if an appeal from a judgment is to be considered an appeal of right as a general matter, there is good reason to think that in the present case, leave was required. [ 28 ] First, it should be noted that the judgment under appeal – that of the Superior Court – did not make such a declaration, but merely confirmed the judgment of the Court of Québec on this point. [ 29 ] Second, the judgment of the Superior Court was, to refer to s. 115 of the Youth Protection Act , “rendered under the authority of this Act / rendu sous l’autorité de la présente loi ”.

The trial judge declared the appellant to be a vexatious litigant pursuant to articles 51 and 55 C.C.P ., which provisions apply, as the judge of the Court of Québec duly noted in paragraphs [156] and [157] of her judgment, by reason of

section 85 of the Youth Protection Act . [ 30 ] From this point of view, the declaration that the appellant was a vexatious litigant, confirmed on appeal, is subject to the leave requirement in s. 115 of the Youth Protection Act . [ 31 ] That being the case, the appeal is improperly instituted: the appellant has raised no question of law in this regard, and certainly none having sufficient interest as required by s. 115 . [ 32 ] That said, even if one were to suppose that the second appeal of the declaration that the appellant is a vexatious litigant is susceptible of appeal as of right, the respondent DPJ has convinced us that the appeal on this point should be dismissed summarily. [ 33 ] Given the absence of any question of law, and the highly factual character of this aspect of the dispute – already confirmed before the Superior Court – a second appeal of the decision of the Superior Court appeal judge on this point would have no reasonable chance of success. [ 34 ] The family circumstances of this dispute are such that no costs shall be awarded.

FOR THE FOREGOING REASONS , the Court: [ 35 ] GRANTS the motion to dismiss the appeal, without legal costs; [ 36 ] DISMISSES the appeal, without legal costs. NICHOLAS KASIRER, J.A. JOCELYN F. RANCOURT, J .A. STEPHANE SANSFAÇON, J.A.