Mattar v. Elbarbary: Effect of a Foreign Divorce on Property Claims in Ontario
This case examines the validity of a foreign divorce and its effect on an equalization and support claim that is commenced in Ontario following the foreign divorce.
The parties are both Sudanese citizens. They married in Sudan in 1989 and have three children who were born in Sudan. At the time of their separation, the parties were both residing in Sudan. The husband served the wife with a divorce certificate in Sudan on January 13, 2018 and the wife did not take steps to appeal the divorce or make further claims for property and support. The divorce was obtained in accordance with Islamic law.
According to the husband’s lawyer in Sudan who provided an expert report, only the husband has the right to divorce the wife under Sudanese law and he is not obliged to disclose his intention to divorce in advance or ask for her consent. However, he must provide her with the divorce certificate, once obtained.
Subsequent to the granting of the divorce in Sudan, the wife brought a claim for equalization and child support in Ontario, arguing that the Ontario court should refuse to recognize the validity of the foreign divorce on the ground that the Applicant did not have notice of the divorce proceedings and that the foreign divorce is contrary to public policy.
In the alternative, the wife argues that the Ontario court has inherent jurisdiction to hear her claim for equalization, spousal support and child support. In response, the husband argues that the Ontario court does not have jurisdiction to hear the wife’s claim under the Divorce Act or the Family Law Act following a valid divorce in a foreign jurisdiction. Furthermore, the parties’ last common habitual residence is Sudan and not Ontario, which means that an Ontario court is not the proper forum to hear the claim and the wife’s claim should be dismissed.
Sections 22(1) and (2) of the Divorce Act permit this court to recognize a foreign divorce where either spouse was ordinarily resident in the jurisdiction for at least one year prior to the commencement of proceedings or where the wife was domiciled in the jurisdiction. Per section 22(3) of the Divorce Act, common law and conflict of law rules apply regarding the recognition of foreign divorces. Following the case of Powell v. Cockburn, there is a presumption in favour of the validity of a foreign divorce and the party challenging it has to demonstrate that the divorce was not properly obtained.
To determine whether the parties were ordinarily resident in Sudan at the time of the divorce proceeding, the Court examined the evidence surrounding their relationship and found that they never resided together in Canada during the marriage and only visited family in Canada occasionally. The majority of the husband’s property interests are in Sudan or outside Canada, save a minority interest in a holding company in British Columbia. Based on how the parties lived during the relationship, the Court held that they have a real and substantial connection to the jurisdiction where the divorce was granted as they were both domiciled there at the time of the divorce proceeding. Therefore, the Sudanese divorce would be recognized in Ontario.
If you have questions or concerns about your own divorce proceedings, contact Feldstein Family Law Group P.C. for a consultation. We can be reached online or at (905) 581-7222.