2023 QCCA 1149, 2023 QCCA 1149

Droit de la famille — 231578 2023 QCCA 1149 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030355-234 ( 540-12-024701-211 ) 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 14, 2023 CORAM: THE HONOURABLE GUY GAGNON, J.A. GENEVIÈVE COTNAM, J.A. FRÉDÉRIC BACHAND, J.A.

APPELLANT COUNSEL M. A. Mtre MIRAY ZAHAB ( Zahab Legal ) By videoconference RESPONDENT COUNSEL T. E. Mtre MICHELINE PARIZEAU ( Me Micheline Parizeau, Avocate ) By conference call On appeal from a judgment rendered on December 14, 2022 by the Honourable Martin F. Sheehan of the Superior Court , District of Laval . NATURE OF THE APPEAL: Contempt of court. Clerk at the hearing : Lesly Ramos Courtroom: Antonio-Lamer HEARING

11:16 Commencement of the hearing. Identification of counsel. Preliminary remark by the Court. 11:17 Submissions by Mtre Zahab. Interruption of Mtre Zahab’s submissions due to technical problem. 11:22 Mtre Zahab resumes her submissions. 11:34 Question by the Court and response by Mtre Zahab. 11:36 Mtre Zahab resumes her submissions. 11:39 Recess of the hearing. 11:44 Resumption of the hearing. The Court announces that it will not be necessary to hear Mtre Parizeau’s submissions. BY THE COURT : Judgment – see page 3. Conclusion of the hearing.

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 (art. 16 C.C.P .). [ 1 ] This is an appeal from an unreported judgment of the Superior Court, district of Laval (the honourable Martin F.

Sheehan), declaring the appellant to be in contempt of court for failing to comply with a December 2021 interim judgment ordering him to pay to the respondent spousal support in the amount of $6,000 per month, as well as an additional sum of $10,000. [ 2 ] While the appellant was also ordered to pay a punitive amount of $10,000, his submissions on appeal focus on the finding of contempt, more particularly on the Superior Court’s holding that the respondent proved beyond a reasonable doubt that he had disobeyed the December 2021 interim judgment intentionally and without a legitimate excuse. * * * [ 3 ] The parties were married in Town A in October 2015.

They later moved into a house which they purchased jointly and where they were still living when the respondent filed for divorce on December 4, 2021. [ 4 ] The interim judgment which the appellant was held to have disobeyed was rendered on December 21, 2021. [1] He subsequently made three payments of $2,000 to the respondent before

i) emptying his Canadian bank accounts, ii) using his Canadian credit cards up to their available limit and iii) leaving for Egypt, from where he conducts most of his professional activities and where the bulk of his extensive assets are located. [ 5 ] Shortly after leaving Québec, the appellant sent a number of vile, demeaning and threatening messages to the respondent. Those messages went so far as expressing his hope that the respondent would one day die by fire in the family residence.

They also indicated that he could not care less about the laws in force in Québec. [ 6 ] In February 2022, the respondent instituted a contempt proceeding based on the appellant’s alleged failure to fully comply with the December 2021 interim judgment. That proceeding led to a judgment rendered in July 2022 in which the Superior Court ruled in the respondent’s favour and ordered the appellant to pay a punitive amount of $10,000. [2] Among other things, the Superior Court noted the appellant’s firm intention not to comply with any court order until such time as the divorce proceeding is completed.

The judge had harsh words for the appellant, both with respect to his attitude towards the judicial system and his overall credibility: [28] Defendant unequivocally admits that he does not intend to respect the Court’s orders until the end of the trial. It is clear therefore that Defendant has decided to deliberately disobey the Court’s orders and only pay the sums ordered when it suits him, namely once the divorce case is finished in three to five years from now. The element of mens rea has therefore also been demonstrated beyond a reasonable doubt.

[29] Defendant’s refusal to obey the Court’s orders is simply unacceptable and constitutes behavior of the kind that undermines the administration of justice and the authority of the courts in this province. The Court’s orders are not for selective respect. They must be honored and complied with, period.

Defendant certainly has the means to comply with the orders in question, but refuses to do so deliberately. [30] Defendant’s testimony before the Court, which lacked in credibility on many aspects, his refusal to respect the Court’s orders while stating that he respects the Court, his behavior over the course of the last few months, the content of the messages filed with the Court which demonstrate that he does not respect Canada’s laws, his willingness to disregard the Court’s order with regards to the undertaking he has signed not to contact Defendant, his ability to present contradictory facts including before the Canadian authorities and before this Court, all lend justification to a finding of Defendant in contempt of court in this case. [31] Defendant, who testified extensively at the hearing, contends that he cannot transfer money out of Egypt, that he is unable to purchase US dollars, and that he has no other way of paying for the alimony.

He contends that the majority of his investments are locked in certificates that are frozen for three years and that he cannot retrieve any amounts.

He says he lives from a salary his sons give him. [32] Considering the documentation and other probative evidence available, this testimony is simply not credible. [Emphasis in the original; footnotes omitted] [ 7 ] The appellant did not appeal that judgment and has yet to pay the punitive amount of $10,000. [ 8 ] In light of the appellant’s continued failure to pay spousal support as per the December 2021 interim judgment, the respondent instituted a second contempt proceeding in October 2022. [ 9 ] In the judgment under appeal, rendered on December 14, 2022, the Superior Court again found the appellant to be in contempt and ordered him to pay a further punitive amount of $10,000.

On the key disputed issue, which concerns the required mens rea , the judge dismissed two arguments made by the appellant: one to the effect that banking restrictions in place in Egypt limited the amount of funds he was allowed to transfer to Canada; the other to the effect that his precarious financial situation prevented him from meeting his spousal support obligations. [ 10 ] With respect to the first argument, the judge found that the appellant had never even attempted to transfer to the respondent sums that were within the banking restrictions allegedly in place in Egypt.

Moreover, the judge noted the appellant’s concession to the effect that nothing prevented him from fully satisfying the December 2021 interim judgment by transferring Egyptian pounds to the respondent’s Egyptian bank account. [ 11 ] On the second issue, the judge found that the appellant’s explanations lacked credibility, notably in light of the extensive evidence regarding his substantial financial means.

His relevant findings are worth quoting at length: [36] ln December 2021, Plaintiff recognises that he had assets of 41 262 785 Egyptian pounds (approximately $2 287 294,06 CAD). [37] ln his Form Ill dated April 13, 2022, Defendant admits that he has assets totalling $3,587,587.62, including assets of $3,004,704.27 at Bank A. [38] Plaintiff has filed several deposit certificates that were purchased by the Defendant after the court's judgment of December 2021. The total value of these certificates as of May 31, 2022, was over 44 431 424 Egyptian pounds (approximately $2 462 939 CAD).

As an example, on April 5, 2022, Defendant bought a deposit certificate of 6 600 000 Egyptian pounds (approximately $366 667 CAD) which guaranteed him 18% interest. [39] On August 19, 2022, a 3,000,000 Egyptian pound (approximately $166,297 CAD) certificate came to maturity. Defendant had no valid explanation for what happened to this money. [40] Between November 2021 and January 2022, Plaintiff withdrew over 800,000 Egyptian pounds (approximately $44,000 CAD) from one of his bank accounts and over $46,000 US from another account.

During his testimony, Defendant ridiculed questions with regard to these withdrawals stating that he had either lost the funds at gambling or had given them to his girlfriend to go shopping.

This only confirms that Defendant does not take his legal obligations seriously and that his disregard for them is intentional. [Footnotes omitted] * * * [ 12 ] The central issue in this appeal is whether the judge committed a reversible error in holding that the evidence proved beyond a reasonable doubt that the appellant had disobeyed the December 2021 interim judgment intentionally and without a legitimate excuse. [ 13 ] In the Court’s view, the judge made no such error. [ 14 ] The appellant first claims that the judge did not correctly apply the principles regarding the allocation of the burden of proof on a charge of contempt.

However, it is clear from the judgment under appeal that the judge understood very well that the respondent bore the burden of proving beyond a reasonable doubt that the appellant had disobeyed the December 2021 interim judgment intentionally and without a legitimate excuse. It is also clear that the appellant’s first ground of appeal amounts to an invitation to reassess the evidence in its entirety and to find that the respondent has not discharged her burden on the issue of mens rea .

This invitation flies in the face of the well-established principle according to which an appeal is not an opportunity to retry the case. Because the judge’s analysis contains no error of law, the appellant had to show that it was tainted by an error of fact or mixed fact and law that can be plainly seen and that had a determinative impact on the outcome. [3] He failed to identify such an error.

[ 15 ] We hasten to add that the judge’s holding on the issue of mens rea , which is entitled to significant deference in appeal, [4] finds ample support in the record developed before the Superior Court. The evidence leaves little doubt that the appellant’s business interests and assets in Egypt are extensive. The respondent testified clearly as to the ease with which the appellant had transferred substantial sums from Egypt to Canada while the parties were sharing a community of life. The judge’s decision to dismiss the appellant’s explanations as lacking credibility is certainly not unreasonable given

i) the latter’s demonstrated disdain for the Québec judicial system, ii) his unacceptably threatening behaviour towards the respondent, as well as iii) his shifting and incoherent testimony regarding the reasons that prevented him from meeting his spousal support obligations. [5] Moreover, the documentary evidence filed by the appellant falls well short of demonstrating that his failure to pay any amount to the respondent during the relevant period resulted from banking restrictions in place in Egypt or from a lack of cooperation from local financial institutions. [ 16 ] We end with brief observations addressing the appellant’s other submissions, none of which have any merit. [ 17 ] The appellant claims that the judge erred by considering substantial transfers of funds from Egypt to Canada he made in November 2021 and January 2022.

Specifically, he contends that the judge was not entitled to take into consideration his behaviour prior to July 2022, because the second contempt proceeding was limited to his alleged failure to comply with the December 2021 interim judgment from July 2022 onwards. This contention is without merits. The judge merely took into consideration the November 2021 and January 2022 transfers as circumstantial facts that had some relevance to the appellant’s state of mind during the period covered by the charge of contempt that was before him.

He was certainly entitled to do so. [ 18 ] As for the appellant’s contention that the judge erred by assessing his credibility on the basis of findings made in the July 2022 contempt judgment, it rests on an incorrect reading of the judgment under appeal. The judge pointed to the July 2022 judgment merely to indicate that the appellant’s behaviour, mindset and attitude towards the Québec judicial system and his spousal support obligations had not changed.

He did not base his assessment of the appellant’s credibility on extraneous considerations. [ 19 ] Lastly, the appellant’s assertion that the judge failed to pay attention during the hearing finds no support whatsoever in the transcript. Parties and their counsel would be well advised to refrain from making such gratuitous attacks on the integrity of the administration of justice. FOR THESE REASONS, THE COURT: [ 20 ] DISMISSES the appeal; [ 21 ] WITHOUT legal costs, given the nature of the dispute. GUY GAGNON, J.A. GENEVIÈVE COTNAM, J.A. FRÉDÉRIC BACHAND, J.A.