The case of Abdulla v Al-Kayem 2021 OJ 2631addresses the court’s ability to determine corollary relief under the Divorce Act, when a divorce has supposedly occurred already in a foreign jurisdiction. Generally, if the parties are already divorced, the Federal Divorce Act does not apply and the court has no jurisdiction to hear the Application or decide corollary relief (e.g. spousal support). However, in the event that the court invalidates the foreign divorce, the Divorce Act can be properly applied and corollary relief potentially granted.
The Application was an uncontested trial where the Applicant’s evidence was not contested or challenged and was mainly presented through Affidavits of both the Applicant and a law clerk at the Applicant’s lawyer’s office.
The parties were married in Syria in 1982. They had three daughters together who are now all adults, and one son. The Applicant was trained as a dentist but did not work since getting married. The Respondent was trained as a civil engineer. The Respondent was the sole provider for the family at all times. The Respondent also had multiple wives, and therefore multiple families, as permitted by Islamic law.
In 2005, the Applicant and her four children immigrated to Canada while the Respondent remained in Dubai to work. The Respondent provided monthly support to the Applicant for both her and the children, ranging from $2,000 - $5,000 per month. The Applicant depleted her savings to support the son through his post-secondary education in 2016 – 2017.
In April 2017, the Applicant was notified by letter that a talaq (a divorce under Islamic law) had been performed in March 2017. On the Applicant’s evidence, serving of an Islamic divorce is acceptable in some Muslim countries. The Applicant’s evidence stated she was not provided notice of any divorce proceedings, nor given any right to support. The Respondent has not provided any further support since March 2017.
In July 2020, the Court ordered the matrimonial home, purchased by the parties together in 2010, to be sold, with the proceeds being released to the Applicant for her to purchase a new property. The Applicant is now seeking lump sum support from the sale of the parties’ multiple properties, as well as security for the payment of spousal support in respect of the Respondent’s interest in the matrimonial home. The threshold determination facing the court is whether the talaq divorce is recognized by this court under the Divorce Act.
Pursuant to Okmyansky v Okmyansky, 2007 ONCA 427an Ontario court does not have jurisdiction to hear a corollary relief proceeding under the Divorce Act if there exists a valid foreign divorce. In certain circumstances, Canadian courts have refused to recognize foreign divorces, including talaq divorces under Sharia Law.
In Novikova v Lyzo 2019 ONCA 821, a foreign divorce was not recognized by the court as the wife was not given proper notice by the Russian Federation. In Kadri v Kadri, 2015 ONSC 321, the court held that despite a foreign divorce being valid, it could still fail to be recognized through the presence of fraud, lack of natural justice or for public policy reasons. The courts have raised concerns surrounding talaq divorces where unilateral announcements of divorce are made by one party, generally by the males.
In Amin v Canada 2008 FC 168, a talaq was said to be completed through the pronouncement of the divorce before witnesses. There was no necessary element of publicity or any involvement by the state, in fact, there was no need to register what had been done at all. The court concluded that a 'bare’ talaq divorce would be directly contrary to Canadian public policy.
Given the lack of evidence in this case regarding the procedure of the talaq between the parties, the onus lies on the party seeking to rely on the divorce to prove that the foreign divorce is in fact valid. Proving foreign law is applicable rests on the Respondent to show. Nothing was filed in support of this. The court concluded that given the lack of evidence, there could not be a finding of a valid divorce. Even if a valid divorce could be found, the lack of notice provided to the Applicant and her lack of participation in the divorce proceedings would also raise significant concerns. Given the talaq was not recognized as a valid divorce under s. 22 of the Divorce Act, the court has jurisdiction to hear and grant the requested corollary relief sought by the Applicant.
The court would proceed to award a lump sum spousal support payment to the Applicant in the amount of $678,000, at a rate of $60,000 per year. The payments would be funded through the Respondent’s share of the proceeds of the sale of the matrimonial home.
This case highlights the potential for the court to grant corollary relief to a spouse, despite a foreign divorce supposedly being in place. Though an uncontested trial, parties should be reminded of the importance of the validity of a divorce in the lens of Canadian principles and public policy. Should the courts determine that a finding of a valid foreign divorce would run contrary to principles of Canadian justice, they may determine that the Divorce Act could still apply.
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