Validity of Foreign Divorce
In the case of Novikova v. Lyzo, 2019 ONSC 264, the Applicant mother sought to invalidate a divorce granted in Russia, an increase in temporary spousal support, and an increase in temporary child support. The Respondent father asked that summary judgment be awarded to uphold the divorce, terminate the spousal support obligation, and reduce child support.
The parties commenced cohabitation in September 2005 and married three years later in the Russian Federation. They separated on December 1, 2015. They share two children together, ages 5 and 8. The parties and their children are permanent residents in Canada.
While in Russia visiting his mother, the Respondent father filed for divorce. The Russian divorce was finalized on June 8, 2016, with an appeal period of 30 days. The Respondent father remarried in July, 2017.
The Respondent father argued that the Russian divorce was properly obtained and should be validated. He relied on Section 22(3) of the Divorce Act and said he had a “substantial connection” with the Russian Federation. He further argued that the Applicant wife received appropriate notice of the divorce because the paperwork was sent to her registered Russian Federation address by registered mail. The Respondent father also claimed that the Russian divorce extinguished the Applicant mother’s entitlement to spousal support. He sought that child support be adjusted on the basis that the children resided with him half of the time.
The Applicant mother, on the other hand, took the position that the Russian divorce was improperly obtained and should not be recognized. The Applicant mother’s parents lived at the address on record with the Russian Federation, however, they refused to accept the registered mail as it was not addressed to them. The Applicant mother alleged that the Respondent obtained the Russian divorce to purposely extinguish her right to spousal support.
In Russia, the parties’ divorce was adjourned due to no proof of service. It was then adjourned a second time because of the non-appearance of the parties. Finally, on June 8, 2016, the Russian Tribunal granted the divorce.
Both parties relied on correspondence from lawyers in Russia. Rule 16(5) of the Family Law Rules, which deals with all evidence on summary judgment motions, states the following:
- If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
Based on Rule 16(5), the judge noted that there was nothing in the correspondence from the lawyers setting out the Russian law as to whether or not the Applicant mother would be entitled to spousal support in Russia.
The correspondence from the Respondent father’s lawyer explained his opinion of the applicable law, however, the law itself with a translation was not appended. The judge also noted that the Respondent father knew precisely where the Applicant mother was living at all times in Ontario. He had an obligation to serve her with the documents but failed to properly do so.
The judge found that since the Respondent father did not remarry until more than a year after the separation of the parties, one can assume that he obtained the divorce in Russia to defeat the Applicant mother’s claim to spousal support. Furthermore, based on the lack of notice provided to the Applicant mother, the judge ruled that the Russian divorce must be set aside.
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