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  • Chantalle Sawision

DIVORCING FOREIGN DILEMMAS



Over the last 10 years, over 26,000 refugees have arrived in Canada annually, according to numbers from Citizenship and Immigration Canada. More recently, Prime Minister Justin Trudeau announced plans to resettle 10,000 Syrian refugees, whom are government-assisted or privately sponsored, over the next year alone. Canadians pride themselves on their country’s foreign policies such as these, as they reflect their government’s desire to promote cultural diversity and acceptance.


Canada has come to be known globally as a cultural mosaic and as such, the influx of new immigrants and refugees continues to increase annually. Naturally, as a result of these changes, the realm of international law has begun to comingle with family law and recent decisions where judges have been faced with assessing foreign divorces are reflective of this.


In the case of Essa v. Mekawi, 2014 ONSC 7409 the Ontario Superior Court of Justice thoroughly reviewed the current law on the recognition of a foreign divorce and dealing with competing claims for custody. The wife was seeking a declaration that a divorce granted in Egypt should not be recognized by the Ontario Courts and the husband was seeking a return of the children to Egypt. If the divorce from Egypt was found to be valid, it would prevent all of the wife’s claims in Ontario and that was an argument that the wife raised in support of her claim that the Canadian court should not recognize the foreign divorce.


Situations like these are becoming less unique, as husbands and wives are not necessarily approved for immigrant status at the same time so, like the couple in this case, one party often moves to Canada prior to the arrival of their spouse. The parties in Essa were both raised and educated in Canada but their citizenship was Egyptian and Algerian and as such, they moved back to Egypt to wed and conceive their children. Shortly thereafter, the husband returned to Canada and waited for the wife to join him upon the approval of her immigrant status. The parties and their children then lived in Canada for three years, before moving back to Cairo, Egypt and separating. Ultimately, the husband found work in Saudi Arabia and given that he was no longer physically present in Egypt, he had his brother act as his Power of Attorney and obtain his divorce in Egypt.


In response to the wife’s claims in Canada, Justice Campbell determined that he must first assess whether the Egyptian divorce was obtained properly and in accordance with Egyptian law. In order for the foreign law to be proved, Justice Campbell found that it was necessary to rely on an expert report on the law. The expert report that he relied on explained how the legal effect of a divorce in Egypt actually starts from the day of its pronouncement, except if the husband tries to conceal it, and that the divorce is revocable during the woman’s waiting period, meaning her first three menstrual cycles after the divorce. Given that there was no residency requirement in Egypt or need to give initial notice to the wife in the event of a divorce, Justice Campbell ultimately found that the divorce was indeed valid on Egyptian soil. The question then became whether Ontario would recognise the parties divorce…


Section 22 of the Divorce Act, and specifically section 22(3), deals with the recognition of foreign divorce. The case of Pitre v. Nguyen, 2007 BCSC 1161, 2007 CarswellBC 2229 provided Justice Campbell with further specificity, outlining that there are few limited grounds that a judge may rely on to refuse to recognize a foreign divorce, including where absolutely no notice is given to a spouse, where the order is contrary to public policy, where the foreign court did not have the jurisdiction or where a party’s actions have been fraudulent. The ‘no notice’ factor is of particular importance, because the finding of a lack of notice might well have made this divorce void as against public policy in Canada, regardless of the parties not requiring any notice for a divorce under Egyptian law. Given that Justice Campbell found that none of these factors were present in the case at hand, it followed that an Ontario court lacked the jurisdiction to grant the wife relief under The Divorce Act or The Family Law Act.


Justice Campbell’s analysis did not stop there, however, as a public policy issue was at play given that the wife removed the children from Egypt without the father’s knowledge. Ultimately, all of the wife’s claims were dismissed and Justice Campbell ordered her to return the children to Egypt because of her wrongful removal, which was contrary to Canadian public policy. It is safe to say that her improper conduct resulted in negative ramifications for herself and her family.


More recently, in the case of Kadri v. Kadri, 2015 ONSC 321 where a divorce was obtained in Lebanon, the same conclusion was arrived at by the Canadian courts. The wife in this case argued that she wasn’t given notice of the divorce in an attempt to proceed with corollary relief in Ontario, however, the Canadian court found that there was an abundant amount of evidence in favor of the husband giving her notice, including serving her with court documents and waiting for her response, which never came. The husband was also able to produce evidence from Lebanon that there was a divorce granted that was registered with the court. Justice Kane reviewed the decision of Okmyansky v. Okmyansky (2007) 86 O.R. (3d) 587 (C.A.), which stressed that Ontario courts do not have jurisdiction to hear or determine a corollary relief proceeding following a valid divorce in a foreign jurisdiction and Parliament did not intend to give Canadian courts jurisdiction over foreign divorces. Most importantly, Justice Kane cited an abundance of case law affirming that support obligations under the Family Law Act do not extend to or apply to former spouses now divorced.


These two decisions highlight the strict threshold that must be met in order for a Canadian court to intervene with a foreign divorce. It is important to note that there are an abundance of immigration decisions involving foreign divorces that have been heard in the wrong jurisdiction or that involve a party unilaterally imposing a divorce on another with a complete lack of communication and as such, they have had vastly different outcomes. The two aforementioned cases must be distinguished from these instances, as both parties received thorough notice and had appeal periods available to them. If you are concerned about whether your foreign divorce may be recognized in Canada or whether you can pursue claims for corollary relief in Ontario, feel free to contact me and I will be able to assist you with any questions you have.

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