The mother in this matter commenced proceedings in 2021 seeking a divorce, corollary relief, and equalization of property. She claimed the parties had moved to Ontario, had had their child in Ontario, and so Ontario was the correct jurisdiction for the matter.
The father then went to Oman and obtained a religious talaq divorce there. He pursued a court proceeding in Oman to recognize his divorce and to obtain joint custody of the child.
On appeal in Oman, the court ruled that Omani law applied to the parties’ matter and the Omani notarial divorce was deemed valid. The mother was awarded custody of the child. She then appealed on the merits of the divorce holding, and the father cross-appealed regarding custody.
Ultimately, the court upheld the divorce and custody order. It further noted that the issue of jurisdiction had already been settled – Oman had jurisdiction.
Now in Ontario, the father submitted that this was not the right jurisdiction and that the mother was wrongfully retaining the child in Ontario. He sought to have the child returned to Oman.
The issue of the Omani divorce’s validity had been severed from the issues regarding Ontario’s jurisdiction and the child abduction allegations, such that the question here was:
Should the foreign divorce granted in Oman be recognized?
The Court noted that Ontario does not recognize “bare religious talaq divorces” even when they are registered by a foreign government official, as was done here. So, the mother could have ignored the divorce that was granted in Oman. However, she did not – she attorned to the jurisdiction of the Omani courts.
Attornment is a common law principle relevant when assessing the jurisdiction of foreign courts. The Court pointed out that a party’s decision to voluntarily submit to a foreign jurisdiction has been the basis for recognizing foreign judgments for hundreds of years. Since the mother had attorned to Omani jurisdiction, she could not be heard in Ontario to challenge Oman’s jurisdiction.
Her argument that it would be contrary to public policy to recognize the Omani divorce came with insufficient evidence. She claimed that Omani law violated Ontario’s public policy since there were no provisions for support upon divorce in Oman. However, the Court stated it could not “condemn an entire system of law” for this reason alone without more information about their laws.
Finally, the Court pointed out that failing to recognize the verdict of a contested hearing in a foreign jurisdiction would be contrary to principles of comity. It would also allow for multiple proceedings where a party sought to achieve the ideal verdict, consequently favoring those who could afford pursuing mulitple proceedings. This would not be just or equitable.
The Court granted a declaration that recognized the parties’ divorce granted in Oman.