Foreign Divorce
Canada can truly boast for its multiculturalism where people hail from various ethnic backgrounds and religions.
Due to this fact courts in Canada sometimes are faced with some very novel and interesting scenarios. Two recent examples of those situations are when Ontario Superior Court of Justice had to deal with a question of recognition of a foreign divorce:
Kadri v. Kadri, 2015 ONSC 321 (CanLII) — 2015-01-15 Where the court, while recognizing the legality of a foreign divorce emphasized, that Ontario courts do not have jurisdiction to hear or determine a corollary relief proceedings after a valid divorce in a foreign jurisdiction.
Also, that under Family Law Act support obligations do not apply to former spouses. In this case since the spouses were already divorced through a valid foreign divorce thus they were no more spouses to seek a corollary relief from an Ontario court. Justice Kane was very clear on this issue , that is, only in very rare situations will a validly obtained foreign divorce be not recognized in Canada. I have mentioned those situations in the next case cited.
Essa v. Mekawi, 2014 ONSC 7409 (CanLII) — 2014-12-31 where the court discussed, at length, the law on the recognition of a foreign divorce. The court came to the conclusion that since the foreign divorce was obtained properly in that jurisdiction thus it was valid over there. Justice Campbell reviewed section 22 of the Divorce Act and, in particular, section 22(3) to analyse if a valid foreign divorce in this case should be recognized in Ontario. He stressed that there were limited grounds to refuse to recognize a foreign divorce,
- where there is no notice given;
- where foreign order is contrary to public policy;
- where the foreign court did not have proper jurisdiction or fraud is present.
According to Justice Campbell none of these grounds could be found in this case.
Thus wife’s claims were dismissed and she was ordered to return the kids to their habitual place of residence because of wrongful removal.
The case has gone to Court of Appeal. Leave to appeal was granted and on a motion to stay the order of the trial judge pending appeal, Mr. Justice said that the mother had satisfied the court regarding the test for a stay. He stated,” There was a serious question to be tried as to whether the court erred in declining to accept jurisdiction and decide her claim for custody in Ontario having regard to the evidence that the father was not actually exercising custody rights at the time the mother unilaterally removed the two girls to Ontario…….”. Applying the principle of best interests of the child the Judge ordered that the appeal be expedited to the first available date in August or September.
Will keep you posted on the decision of the Court of Appeal.
