Written on behalf of Feigenbaum Consulting
A recent Ontario case set out the criteria used by a court to recognize a foreign divorce in Canada.
The husband and wife, who both grew up in Syria, met while they were both practicing medicine in the same hospital in Syria and married on June 21, 1988 in Damascus. They had two sons: one who was born in Syria in 1988 and the second who was born in Kuwait in 1992. The wife stopped practicing medicine in 1989.
The couple moved to Canada in 1995 and lived there for four years. The family then moved to the United Arab Emirates in 1999. However, when the husband accepted a job in Singapore in 2006, the couple decided that the wife and children would move back to Canada.
In 2007, the husband informed the wife through his son that he wanted to separate. In March 2008, the husband informed the wife that he intended to divorce her through the Syrian courts.
At some point in December 2008 or in 2009, the husband provided the wife with a copy of the Syrian decree of divorce issued by the Syrian authorities on November 18, 2008. Pursuant to that document, the husband imposed upon himself the obligation to pay the wife “30 Syrian pounds – about one Canadian dollar – a day as alimony for a period of three months” and “undertook to increase the alimony”. The divorce decree further stated that the husband “prays this Court to issue a summons to be served upon the wife at her domicile in Damascus, Abu Roumana street, known by chief of Ward, there.”
In March 2009, the husband remarried and thereafter lived in Singapore with his new wife.
The wife and children remained in Canada after the divorce was granted.
From the time the wife and children moved back to Canada in 2006 until August 2014, the husband sent the wife approximately $4500 per month for her and the children’s support. When the eldest son completed his post-secondary education in August 2014, the husband reduced his monthly support payments to $3500. He also covered all the children’s university tuition. When the youngest son finished his post-secondary education in July 2017, the husband stopped all support payments to the wife and informed her that it was now the children’s turn and role to support her.
The wife brought an application before an Ontario court in 2017 seeking spousal support under the Divorce Act (“the Act”). The husband opposed the application on the basis that the court did not have jurisdiction to make a spousal support order under the Act because the parties were validly divorced in Syria in 2008. The wife argued that the divorce granted by the Syrian authorities was invalid and should not be recognized in Canada.
At the time of the application, the husband worked as a physician in Singapore and earned the equivalent of $600,000 CAN per year. The wife worked at a pharmacy on a part-time basis, earning minimum wage.
The court explained that the question to be determined was whether the Syrian divorce should be recognized pursuant to s. 22(3) of the Act, which allows the court to recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law.
The court stated that Canadian courts will recognize a foreign divorce in the following situations:
- where jurisdiction was assumed on the basis of the domicile of the spouses;
- where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;
- where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;
- where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;
- where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or
- where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection.
After reviewing the facts of the case, the courtconcluded that Syria did not have jurisdiction to grant a divorce between the couple in 2008 and, as a result, it refused to recognize the Syrian divorce as determinative of the parties’ marital status in Canada. Additionally, the court stated that it would have denied recognition of the divorce in Canada on the ground that the wife was denied natural justice in the Syrian divorce process.
As a result, the court refused to recognize the Syrian divorce in Ontario and the wife’s application for spousal support was allowed to proceed.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.