Martinez v. Basail 2010 – Foreign Divorce

This is an interesting case heard by Justice Spies in the Ontario Superior Court of Justice. Three parties, namely, Mr. Martinez, his ex spouse, Ms. Rodriguez and his new spouse Ms. Basail brought this motion seeking an order that a divorce granted in Cuba should be recognized as a valid divorce in Ontario.

The parties, Mr. Martinez and Ms. Rodriguez resided and married in Cuba in 2004. They had one child together. Mr. Martinez immigrated to Canada in July 2006 and in October 2006, Ms. Rodriguez and the child moved to Canada. The parties separated in May 2007.

At this time, both parties were permanent residents of Canada. The parties believed that that as the marriage took place in Cuba, the divorce would also have to take place in Cuba. Neither party consulted with Ontario lawyers to confirm this. The parties travelled to Cuba in October 2007 to obtain the divorce. They retained a lawyer who assisted with the divorce and the parties signed an agreement which reflected the terms they had agreed to; namely, custody and access, waiver of spousal support and child support in the amount of $300 Canadian per month. The parties returned to Canada and Mr. Martinez followed the terms of the agreement to pay child support. In fact, he was making payments that were more than the terms agreed to by the parties.

Mr. Martinez had met Ms. Basail in Cuba. They married in Cuba in December 2009 believing that he was properly divorced. When Mr. Martinez applied to Immigration Canada for Ms. Basail, Immigration Canada did not recognize the Cuban divorce as valid as neither party was resident in Cuba when they applied for the divorce there. Mr. Martinez therefore could not legally marry Ms. Basail. What is different about this case is that neither party was disputing the validity of the divorce. Mr. Martinez was following the terms of the agreement signed by the parties in Cuba.

Given that the Judge in Cuba granted the Divorce in Cuba, Justice Spies was of the view that the lawyer in Cuba had the authority to grant a valid divorce pursuant to Cuban law. Justice Spies agreed. The parties had a substantial connection with Cuba when they applied for the divorce; they were born there, they married there and lived in Cuba for most their lives and their child was born there as well. The facts of this case bears resemblance to the Indyka case where the husband, although no longer a resident of Czechoslovakia, was granted with his divorce in Czechoslovakia because he had a ‘real and substantial connection’ to Czecholslavia which was sufficient to recognize the Czech divorce.

Given that Mr. Martinez had been divorced in Cuba prior to marrying Ms. Basail, Justice Spies found that the marriage was valid. If the marriage was valid in Cuba, it should be valid in Ontario for the reasons noted above.

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