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Canada recognized marriages and divorces in the performed in other parts of the world. However, determining whether a couple has been properly married, or in the case we are about to discuss, properly divorced, is not always an easy task. In a recent case before the Ontario Superior Court of Justice, the court was tasked with determining whether a couple had gotten divorced according to tradition in Pakistan.

The background

In 2012 – prior to the wedding –  the wife was 22-years-old and was a Master of Business Administration student at a university. At that time the husband was 28-years-old, and was a first generation Canadian. He was pursuing a career in the financial sector. During this time his mother set upon arranging for him to marry a woman from Pakistan.

The husband’s mother contacted the wife’s mother and arranged for the couple to be married. They travelled to Pakistan in July 2012. The couple met for the first time in the days before the wedding, getting married on July 6. The couple lived together in a relative’s house for about a week after the marriage. The wife says the marriage was consummated at that time, though the husband said it was not.

A tale of two spouses

The wife testified that the week after their wedding was a happy one, while the husband said he was filled with remorse. He said he had gone along with the marriage to please his parents, but was sad to be married to someone he did not know, nor share interests with.

The couple returned to Canada the week after the wedding. The wife was under the impression that the husband was going to start arranging for her to immigrate to Canada. She applied for a passport, changed her name, withdrew from university (in order to move) and updated her ID cards. During this time the husband testified he talked to his mother about the marriage being over, and that it would not last. With his mother’s encouragement he decided to give it some time.

The “divorce”

The couple did not see each other again until May 2013. It was at this time that the couple’s parents arranged another marriage between their siblings. While they spent time together in the week after the wedding, the wife testified that the husband told her at this time that he planned on ending the marriage. He told his mother the same thing later in the month.

The husband testified that his mother advised him that if the marriage was not consummated, it could be annulled in a meeting with the couple, her family, and a village elder. The husband would have to speak the word “Talaq” to the wife three times in order for the marriage to be annulled. The husband claimed the meeting took place on May 29, 2013. The wife said the meeting didn’t happen, and that the day was spent shopping, sightseeing and spending time with their families. The wife claimed the husband was “totally lying” about the meeting.

The parties agreed to consent to divorce during the trial, but the issue remained as to when the divorce took place.

Onus is on the husband

The court explained that the onus was on the husband to prove that the divorce took place. He chose not to call witnesses to testify about it happening. In addition, communication between the husband and wife was presented that showed them planning on getting together after spending time apart.

“On a balance of probabilities that the religious divorce ceremony did not occur. In weighing the evidence, I do not accept that (the husband) told (the wife) in Pakistan on May 29, 2013 that he wanted to end their marriage, in the manner that he has described, for a number of reasons. The email communications between (the husband) and (the wife) leading to the May 2013 trip to Pakistan do not support (the husband’s) evidence. They show the usual dialogue between a couple planning to get together after time apart. The pictures tendered in evidence of (the husband) and (the wife) at their relatives’ wedding and travelling along with others after the wedding are not consistent with (the husband’s) testimony. Having observed the parties testify, and having weighed their evidence, I do not find plausible that (the husband) would travel with his family to Pakistan in May 2013 to attend his sister’s arranged marriage into (the wife’s) family, stay with (the wife) and her family in the days leading to the wedding and afterwards, only to tell his wife and in-laws in the days following that he no longer wished to be married to (the wife).”

The court also looked at the wife’s behaviour after the alleged divorce, determining that she was not acting like a person who had just gone through a divorce.

The lawyers at Gelman & Associates work exclusively in family law. We are knowledgeable, professional, and provide our clients with advice designed to keep their interests front and center.  If you have questions about your separation or divorce, or other areas related to family law, please call us at 1-844-769-0737 or reach us online for an initial consultation. We provide all prospective clients with a comprehensive family law kit as well as our firm’s handbook on separation and divorce.

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Federation of Asian Canadian Lawyers
Law Society of Ontario
Peel Law Association
UJA Federation of Greater Toronto
York Region Law Association
Collaborative Practice Simcoe County
Law Association Simcoe County
Widows & Orphans Fund