Foreign Divorce: Wilson v Kovalev, 2016 ONSC 163
This case involved a determination of whether the divorce the parties obtained in Peru should be recognized by the court for the purpose of determining their marital status in Canada.
The Applicant (Mr. Wilson) and Respondent (Ms. Kovalev) were born and raised in Peru, and married in Peru in 2006. They were Peruvian citizens and living in Peru at the time of their marriage. In July 2008, they moved from Peru to Canada. In December 2008, they separated after living in Canada for six months. The parties jointly pursued a divorce in Peru and in 2009 obtained both a declaration of consensual separation before a Notary in Peru and a notarial divorce decree from a Peruvian Notary Public. The divorce was electronically registered in the Personnel Registry Public Records of Peru.
Both parties became permanent residents of Canada and eventually acquired Canadian citizenship. Ms. Kovalev remarried in Canada in 2011 on the understanding that the Peruvian divorce met the test for recognition in Canada. She obtained a marriage license after getting a legal opinion from Mr. Hinchey, Barrister and Solicitor, that the Peruvian divorce should be recognized in Canada.
There were errors in the legal opinion that Ms. Kovalev received. Mr. Hinchey thought that Mr. Wilson was a resident of Peru when the divorce was granted and thought the parties had been separated for at least one year at the time of divorce, neither of which were true. Ms. Kovalev also alleged that Mr. Wilson committed adultery, which he denied.
Mr. Wilson decided to get remarried in 2013 and attempted to obtain a marriage license at that time. He had difficulty obtaining a legal opinion to recognize the Peruvian divorce and applied for divorce in Ontario, although his preference was for the Peruvian divorce to be recognized.
Section 22(3) of the Divorce Act applies in this case. It allows the court to recognize a foreign divorce on the basis of the principles of conflicts of laws and the rules of common law. At common law, there is a presumption of validity for foreign divorce. The party alleging that the divorce is invalid has the onus of proving the divorce was not properly obtained.
The court will decline to recognize a foreign divorce on the following limited grounds:
- The Respondent did not receive notice of the Divorce Application
- The foreign divorce is contrary to Canadian public policy
- The foreign court or authority that granted the divorce did not have the jurisdiction to do so
- A denial of natural justice by the granting authority in making the divorce order
There are a number of considerations for the court in deciding whether to recognize a foreign divorce:
- The parties were domiciled in the foreign country that granted the divorce when the divorce proceedings were commenced;
- Either party was domiciled in the granting country when the divorce order was made;
- The divorce, wherever granted, would be recognized by the law of the countries where the parties were domiciled when the divorce order was made;
- The jurisdictional rule of the granting country corresponds to the Canadian jurisdictional rule in divorce proceedings;
- Whether either party had a real and substantial connection with the granting country; and
- Where the foreign divorce would be recognized in another foreign jurisdiction with which either party has a real and substantial connection
Whether there was a real and substantial connection is the relevant consideration here to determine whether the Peruvian divorce should be recognized in Canada. The judge determined that it is not necessary to demonstrate the most real and substantial connection is with the granting country. A minimal connection to that country may be sufficient.
Ms. Kovalev provided a legal opinion from a lawyer in Peru that the Peruvian divorce was valid under Peruvian law and that the Notary that granted the divorce had the jurisdiction to do so. The evidence at trial supported the conclusions of the Peruvian legal opinion. There was no evidence of fraud that might have affected the jurisdiction of the Notary who granted the Peruvian divorce. Both parties consented to the divorce in Peru and there was no evidence of either party being denied natural justice.
The judge found a real and substantial connection between the parties and Peru. Both parties:
- Were born and raised in Peru
- Were married in Peru
- Lived in Peru at the time of marriage until they arrived in Canada
- Only lived in Canada for six months before they separated
- Continued to be Peruvian citizens at the time of divorce
- Had extended family still living in Peru
- Had valid Peruvian national identification documents
- Had state pensions in Peru
The real and substantial connection test was not restricted to current links to the country. Connections that existed when the divorce proceedings were commenced and when the divorce was granted are most relevant to the analysis. Justice Chappel found the parties were more closely connected to Peru than Canada when the divorce proceedings were initiated and when the divorce was granted.
Justice Chappel recognized the Peruvian divorce and dismissed the Divorce Application. No costs were payable by either party.