2022 QCCA 755, 2022 QCCA 755

Droit de la famille — 22860 2022 QCCA 755 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029655-214 (500-04-077032-218) DATE: May 24, 2022 BEFORE THE HONOURABLE GUY COURNOYER, J.A. V. C. (V. CH.) APPELLANT – Defendant v. C. P. RESPONDENT – Plaintiff and VI. CH.

IMPLEADED PARTY – Intervener 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 (arts. 15 and 16 C.C.P .) . [ 1 ] The Appellant, the mother of two children aged respectively 8 and 3 years, is seeking to suspend the provisional execution of a judgment rendered by the Superior Court on August 12, 2021, [1] which granted the Respondent, the children’s maternal grandmother, certain access rights. [ 2 ] The Appellant also seeks appeal management measures or directives with respect to the filing of additional written arguments about the indispensable new evidence and the allegedly impermissible allegations in the Respondent’s memorandum. [ 3 ] The Appellant presented an Application to suspend the provisional execution of the judgment of first instance regarding the rights granted to the Respondent, which Application was denied on August 31, 2021. [2] [ 4 ] On December 10, 2021, the parties recognized that “serious difficulties have arisen with respect to the exercise of the access rights stipulated in the judgment of first instance”. [ 5 ] They agreed “to conduct two psycholegal expertises to better understand the family dynamic, the reasons for the children’s refusal to communicate with [their grandmother] and to determine the best way to proceed going forward [for the grandmother]’s access and relationship with the children”. [ 6 ] Therefore, the parties signed a consent to judgment for a psychological assessment of the children and the consent was homologated on December 20, 2021. [ 7 ] On January 25, 2022, the grandmother's motion to dismiss the Appellant’s appeal was dismissed. [3] [ 8 ] On February 4, 2022, the Court granted in part an Application to Amend the Notice of Appeal and granted in part an Application for Permission to Present Indispensable New Evidence. [4] The Appellant was authorized to file:

(1) Redacted Reports from the Director of Youth Protection; (2) the Transcription of Respondent’s Testimony and its Translation of Her Answers from Spanish to French; and (3) a Judgment dated December 23, 2021, Granting the Motion to Homologate a Consent to Judgment Signed by the Parties on December 10 and 14, 2021 for a psychological assessment. [ 9 ] On April 29, 2022, the Respondent applied ex parte for an order to force the parents of the children to appear on contempt of court charges. The Application was granted the same day.

A hearing on the charges has not yet been held. [ 10 ] The situation created by the contempt proceedings is hardly conducive to a constructive atmosphere between the parties and does not facilitate the ongoing assessment process.

[ 11 ] There have been considerable delays in the completion of the psychological assessment. [ 12 ] The Appellant argues that the children refuse to contact the Respondent or to engage with the Respondent when there are contacts. [ 13 ] On the other hand, the Respondent argues that both children have had positive interactions with her during some of the calls and visits, particularly when the parents did not intervene during those contacts. [ 14 ] The contrasting perspectives of the parties can hardly be resolved in the context of an Application to suspend the provisional execution of a judgment of first instance, such Application having already been denied. [ 15 ] Nonetheless, as my colleague Schrager, J.A. noted, “[s]hould anything occur during any period of access which might be harmful to the child, the possibility of further orders of this Court or the court of first instance could be open as a redress depending on the circumstances”. [5] [ 16 ] Beyond an obviously acrimonious relationship between the parties, which is a very worrisome situation, there is no clear evidence pointing towards demonstrated prejudice to the children in the material before me.

FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 17 ] DISMISSES the Application to suspend the provisional execution of a judgment of first instance; [ 18 ] RECOMMENDS that the parties avail themselves as soon as possible of the mediation service offered by the Court of Appeal; [ 19 ] TAKES NOTICE of the parties’ agreement to file an additional two pages of written arguments with respect to the indispensable new evidence and to refer the debate about the impermissible allegations contained in the Respondent’s memorandum [6] to the panel that will hear the appeal. [ 20 ] The whole without costs given the nature of the matter.

GUY COURNOYER, J.A. Mtre Anne-France Goldwater GOLDWATER, DUBÉ For the Appellant Mtre Ivan Caireac For the Respondent Date of hearing: May 13, 2022