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In many instances, if a couple gets divorced in one country, that divorce is likely to apply in other countries they may live in. But it’s not always so cut and dry. In a recent decision from the Ontario Superior Court of Justice, the court had to determine whether an old divorce obtained by a couple in Syria would be recognized in Canada.
The family background
The mother and father both grew in Syria and met while they were each practicing medicine there. They were married in Syria in 1988. They had two children while married, with one being born in Syria and the other in Kuwait. By the time of the trial the children were independent adults.
The mother stopped practicing medicine in 1989, shortly after the birth of their first child. She had not returned to her career since then. They moved to Canada in 1995, but the father was unable to practice medicine here. As a result, the family moved to Abu Dhabi in 1999. The father was offered a job in Singapore in January 2006. The mother did not want to move to SIngapore, and instead it was agreed that her and the children would move back to Canada, which they did when the father started work in Singapore.
While the father had originally said he would visit the family in Canada, he informed the family that he was no longer planning to do so, but that he she “will continue to be my wife, in legal terms, as long as she chooses to do so.”
Notwithstanding his letter, the father decided to pursue a divorce in Syria in March 2008. A decree of divorce was provided to the husband in late 2008 or 2009. The only spousal support included in the decree was about $90 dollars to be paid over the first three months following the divorce. The father went to remarry and continued to reside in Singapore.
Despite the divorce decree, the father continued to provide spousal and child support, sending about $4,500 per month until August 2014. He also covered the children’s university tuition. It was when both children completed university that the father told the wife he would stop sending support payments. At the time of the trial the mother was earning minimum wage working part-time, while the husband was making about $600,000 Canadian per year in Singapore.
Application for spousal support
The mother applied to the courts for spousal support following the father’s announcement that support would cease. The husband argued he should not have to pay spousal support since the divorce he obtained in Syria meant it held jurisdiction over the matter. The mother’s position was that the divorce should be considered invalid because it was sought solely in order to eliminate support obligations.
Should the divorce be recognized?
The could held that the Syrian divorce should not be recognized since none of the grounds upon which foreign divorce may be recognized in Canada were established. The court addressed each of the grounds.
- Where jurisdiction was assumed on the basis of the domicile of the spouses: Since neither of the parties lived in Syria at the time of the divorce, this is not applicable
- Where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties: The court noted that the Divorce Act states, “A divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce. Since neither party resided in Syria at the time of the divorce proceedings, the Syrian courts would not be recognized as jurisdictionally competent in the eyes of Canadian laws on that ground.”
- Where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings: Syrian and Canadian jurisdictional rules do not correspond, meaning the Syrian rules could not apply in Canada
- Where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada: Again, since neither party lived in Syria for the year preceding the divorce, this grounds could not support the divorce.
- Where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted: This was the “meat and bones” of the father’s position. However, the court found that the parties’ connections to Syria were not strong enough to support the divorce being granted there.
- Where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection: Neither party argued this ground.
The court backed up its finding, stating “I am of the view that a process which leaves one party with absolutely no voice and no ability to defend oneself with regards to his or her own marital status, which in turn leads to that party losing significant legal rights in his or her country of residence, seriously contravenes the principles of natural justice upon which our judicial system is built.”
Recognition of the divorce was denied, and the court allowed the mother to pursue her spousal support application.
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