2022 QCCA 1002, 2022 QCCA 1002

Droit de la famille — 221258 2022 QCCA 1002 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029954-229 ( 500-12-343760-199 ) MINUTES OF HEARING WARNIN G : 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 .). DATE: July 12, 2022 THE HONOURABLE STÉPHANE SANSFAÇON, J.A. APPELLANT COUNSEL B. A.

Mtre ALAIN LANCRY Mtre FADY GIRGIS ( Devine Schachter Polak ) Absent RESPONDENT COUNSEL A. M. Mtre FARSHAD SADAFI CHAGHOOSHI ( Farshad Sadafi Chaghooshi, avocat ) Absent DESCRIPTION: Application of the respondent for a suretyship (Art. 364 C.C.P. ). Clerk at the hearing : Lesly Ramos Courtroom: RC-18 HEARING

Continuation of the hearing held on July 7, 2022. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3.

Lesly Ramos, 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 (arts. 15 and 16 C.C.P .). [ 1 ] The respondent, who is the appellant’s former wife, asks that the appellant be ordered to provide a suretyship in the amount of $30,000.00 to guarantee payment of her appeal costs and a suretyship in the amount of $47,000.00 to guarantee payment of the trial judgment plus $9,200.00 to cover the trial judge’s order condemning the appellant to pay $100.00 for each day during which he refuses to remove the barriers to religious remarriage. [ 2 ]

Section 364 C.C.P. provides: 364. The Court of Appeal or an appellate judge, on their own initiative or on an application by the respondent, may, for good cause, subject an appeal to the provision of a suretyship to guarantee payment of the appeal costs and of the judgment amount if the judgment is affirmed. 364. La Cour d’appel ou un juge d’appel, d’office ou sur demande de l’intimé, peut, pour un motif qui le justifie, assujettir un appel à un cautionnement afin de garantir le paiement des frais de l’appel et du montant de la condamnation si le jugement est confirmé.

The Court or the judge determines the amount of the suretyship and the time limit within which the appellant is required to furnish the surety. La cour ou le juge fixe le montant du cautionnement et le délai à l’intérieur duquel l’appelant est tenu de fournir une caution. [ 3 ] The trial judge concluded that the appellant refused for many years, and still refuses, to remove the barriers to his former wife’s religious remarriage.

For that reason, among others, she then dismissed his application for the restitution of an alleged unduly paid sum of $48,707.57 in favour of the respondent, using to that end the power granted to her in such circumstances by

section 21.1(3) (

c) of the Divorce Act . [ 4 ] The trial judge further found that the appellant’s behavior is ill-founded and abusive, that his decisions are unjustified, unreasonable and malicious and that he is knowingly subjecting the respondent to his authority. Furthermore, she found that the appellant’s refusal to agree to a religious divorce, in the particular context of this case, also amounts to an unlawful interference with the respondent’s rights to freedom, to dignity, to equality, and to not be harassed on the basis of her gender under the Quebec Charter of Human Rights and Freedoms . [ 5 ] In Richer c.

Sirois , [1] my colleague Mainville, J.A., set out the criteria that apply to the respondent’s application: [30] Le cautionnement en appel est une mesure exceptionnelle.

Il ne peut être accordé que pour un motif qui le justifie soit, notamment, une preuve convaincante que sans celui-ci, les droits reconnus par le jugement de première instance seront effectivement mis en péril - ce n’est manifestement pas le cas en l’espèce - ou s’il est nécessaire pour garantir les frais d’appel. [References omitted] [ 6 ] In her sworn statement presented in support of her application for a suretyship, the respondent sets out the appellant’s behaviour over the course of the proceedings in first instance, which convinces me that the probability that she will recover the amount of the judgment on assets in Canada has been rendered very slim because the appellant transferred most, if not all of his substantial assets, to Iran. [ 7 ] The appellant replies that his assets were so transferred legally before he was served with the proceedings and that in the event he loses his appeal, the respondent will be able to execute the judgment in Iran. [ 8 ] I do not agree.

Firstly, I see no apparent weakness in Justice Paquette’s reasons. Secondly, the judgment appealed from applies the laws of Canada, which are fundamentally different from the laws of Iran in matrimonial matters, the latter being based on Sharia law. The probability that Iran’s tribunals will accept Justice Paquette’s reasoning based on the Quebec Charter of Human Rights and Freedoms appears weak, if not nonexistent. [ 9 ] I will therefore grant the respondent’s application in part. For these reasons, the undersigned:

[ 10 ] Grants in part the application to provide suretyship; [ 11 ] Order S the appellant to provide within 30 days a suretyship in the amount of $5,000 to guarantee the appeal costs; [ 12 ] Orders the appellant to provide within 30 days a suretyship in the amount of $40,000 to guarantee the payment of the trial judgment amount if the judgment is affirmed; [ 13 ] COSTS to follow. STÉPHANE SANSFAÇON, J.A.