Recognition of Foreign Divorces
Kadri v. Kadri, 2015 ONSC 321
This case addresses whether a divorce under Sharia law should be recognized in Ontario.
The parties are Sunni Muslims and were married in Lebanon in 1988. They had lived together in various countries throughout their marriage including Canada, France, England, and Lebanon. They have three adult children together.
According to the Vital Statistics and Civil Status General Department of the Republic of Lebanon, the Legal Islamic Sunni Court of Bekaa annulled the parties’ marriage in October 2008 and granted a License of Divorce on March 2, 2009. In September 2009, the Wife signed a Declaration in Lebanon that stated she received all her matrimonial rights, namely $13,000 US, and undertook not to prosecute the Husband before any court or authority in Lebanon or abroad for further matrimonial rights.
In August 2010, the Wife left Lebanon and moved to Canada. The Husband remained in Lebanon and later moved to England and then Singapore. The Husband remarried in late 2012.
In August 2013, the Wife commenced an application at the Ontario Superior Court of Justice. She sought a divorce, spousal support, child support for three adult children, division of assets, and ownership and exclusive possession of a condominium in Ottawa under the Divorce Act and the Family Law Act. The Wife argued that Ontario had the jurisdiction to hear her application because the parties’ divorce judgement from Lebanon was not valid for the following reasons: (1) she did not receive notice of the Lebanese divorce, and (2) the parties remained married under Sharia law because they had reconciled within 100 days following the divorce decision and therefore the divorce was terminated.
The Husband responded by cross-motion seeking an order that the parties’ 2009 divorce order be recognized in Ontario, that he have no spousal support obligations, and an order that the Applicant Wife be required to vacate the Ottawa condominium that he purchased in 2011.
There were several issues for the Court to determine, including whether the Lebanese divorce should be recognized as valid in Ontario; whether the parties had in fact reconciled during the 100 day “iddat” waiting period; whether the Applicant Wife is entitled to a divorce or corollary relief in Ontario; and whether the Declaration signed by the Applicant Wife should be set aside.
The Court found that the Lebanese divorce was valid and, therefore, the Court lacked jurisdiction to grant the Wife’s application for relief under the Divorce Act or the Family Law Act.
Section 22 of the Divorce Act addresses the recognition of foreign divorces in Canada. At paragraph 74, Justice Kane summarizes the three grounds for recognizing foreign divorces:
- Subsection (1) affords recognition where either spouse was “ordinarily resident” in that jurisdiction for at least one year prior to the commencement of the divorce proceedings;
- Subsection (2) continues s. 6(1) of the 1968 Divorce Act by recognizing foreign divorces obtained after July I, 1968 based on the wife’s domicile in the foreign jurisdiction; and
- Subsection (3) preserves the common law rules regarding the recognition of divorce.
The first basis is established because both parties were ordinarily resident in Lebanon from 2002 until after the divorce judgement was granted in 2009. Likewise, the second basis is also established because the wife was domiciled in Lebanon at the relevant time.
The third basis permits a Canadian Court to recognize a divorce that has been granted on non-domiciliary jurisdictional grounds, provided that the divorce is legally recognized in the foreign domicile that granted it. “Only in very rare circumstances will a foreign divorce properly obtained pursuant to the laws of another jurisdiction, not be recognized by Canadian courts: Martinez v. Basail, 2010 ONSC 2038” (Paragraph 81). A Canadian Court may refuse to recognize a valid foreign divorce only if the divorce was obtained fraudulently or there is a serious violation of natural justice or public policy.
Opinion evidence from lawyers qualified to practice in Lebanon agreed that the Legal Islamic Sunni Court, not the civil courts in Lebanon, had exclusive legal jurisdiction regarding the parties’ divorce. The Court was satisfied that the divorce in Lebanon was validly obtained by the Husband and that the Wife had, in fact, received notice. If the Wife did not receive notice of the divorce, this may have been sufficient grounds to refuse to recognize the parties’ divorce in Canada. However, the equivalent of an affidavit of service indicated that the Wife was served with the divorce decision in June 2009. One of the parties’ adult daughters also testified that in March or April 2009, the Wife told her that the Husband’s lawyer had informed her of the divorce. The Wife had 15 days to object or appeal the decision after being served notice but failed to do so. Furthermore, the Court found that she knowingly and willingly signed the Declaration releasing her Husband of matrimonial rights, despite her testimony to the contrary.
The Court found that the parties had not reconciled within the 100-day waiting period, which would have terminated a divorce under Sharia law. The Wife’s evidence that the parties had reconciled was inconsistent and the Court found that she was not credible. The Court determined that the Wife considered herself to be divorced for many years prior to filing her Ontario Application, but commenced the proceedings because she learned that the Husband was expecting a new child and was upset by this information.
In the end, the Wife’s application was dismissed and the Husband’s cross-motion for possession based on his ownership of the Ontario condominium was also dismissed.