The motion judge failed to distinguish between recognizing and granting a divorce, the motion judge erred in finding that the parties had a real and substantial connection to Egypt at the time of the divorce that would be necessary to give substantive effect to it in Ontario.
The parties were married for over 15 years before they finally separated in 2016. They were both born in Egypt and are adherents to the Islamic faith. Neither of them has lived in or visited Egypt in over 20 years. Their two children were born in Ontario where the parties have resided since 2002. The respondent provided the main financial support for the family and the appellant principally cared for their children and managed their home. The children continue to live with the appellant in Kitchener. The respondent has remarried and resides with his wife and her children in Oakville. He has paid child support to the appellant since 2017 but has not paid any spousal support.
Prior to the final separation in 2016, the parties had separated in 2012. At that time, the respondent brought an application in Ontario for various heads of relief, including a divorce, a division of the net family property, and parenting time with his children. In her Answer, the appellant claimed spousal and child support, in addition to a divorce and a division of the net family property. The application was not adjudicated on its merits. The parties reconciled in 2014 and withdrew the proceedings. The parties separated again in October 2016. On December 17, 2016, the respondent sent a text message to the appellant in which he stated that they were divorced. This communication represented the third instance where the respondent had stated that they were divorced. The expert evidence of both parties agreed that the respondent’s December 17, 2016 text message represented the completion of a divorce or “talaq” under Islamic law.
The respondent started a relationship with his present wife in late 2017. He wished to obtain a divorce so he could remarry. He did not start an application for divorce in Ontario or Egyptian courts. Instead, in January 2018, the respondent arranged for the parties to attend at the Egyptian Embassy in Ontario to register the bare talaq divorce that had occurred in December 2016. The parties attended the Embassy separately. On January 30, 2018, the Declaration of Divorce registered by the Egyptian Embassy was filed with the Egyptian Civil Affairs Registry No. 66. The Registrar General of Ontario then issued the respondent a marriage licence based on the Declaration of Divorce. The respondent remarried in June 2019.
On November 19, 2019, the appellant started the present proceedings. In her application, she seeks, among other things, a declaration that the registered bare talaq divorce should not be enforced, an order for spousal and child support, exclusive possession of the matrimonial home, and a division of net family property. She brought a motion for summary judgment for her claims for declaratory relief and spousal support. Her unchallenged evidence was that she was unaware that the registration of the bare talaq divorce would disentitle her from claiming spousal support.
Robert JA ruled that the motion judge acknowledged the invalidity of a “bare, unilateral talaq” divorce but held that since the bare talaq divorce, in this case, was later registered with Egyptian governmental agencies, it was a presumptively valid foreign divorce under s. 22(3) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
As a former rather than current spouse, the appellant could no longer claim spousal support and the court lacked jurisdiction to grant it. In his view, the motion judge erred in law in failing to distinguish between the granting and the registering of a divorce. In the circumstances of this case, registering the divorce with the Egyptian Embassy, the Civil Affairs Registry and the Ministry of Justice in Egypt amounted to no more than the evidentiary attestation of the respondent’s unilateral pronouncement of a bare talaq.
Later he also considered that the motion judge also erred in law by recognizing the registered bare talaq divorce as a valid divorce under s. 22(3) of the Divorce Act in accordance with conflict of laws and common law principles. The parties had no real and substantial connection to Egypt at the time of the divorce.
Roberts JA referred to Subsection 22(3) of the Divorce Act, which expressly upholds the common law principles that are helpfully summarized in Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111 and referred to in this court’s decision in Novikova, at para. 14. Canadian courts will recognize a foreign divorce:
i. where jurisdiction was assumed on the basis of the domicile of the spouses;
ii. where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;
iii. where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;
iv. where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;
v. where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or
vi. where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection.
Source: <https://coadecisions.ontariocourts.ca/coa/coa/en/item/21093/index.do> Abraham v. Gallo, 2022 ONCA 874
DATE: 20221215
DOCKET: C70508
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