Recent case: Recognition of foreign divorce

Essa v Mekawi 2014 ONSC 7400

The parties were married in Egypt under the marriage laws of that country. Both of them are Egyptian citizens. In addition, the father is a Canadian citizen and the mother has permanent resident status here.

They lived, at various times, sometimes together and sometimes apart, in Canada, Eqypt and Saudi Arabia. Their families of origin all lived in Egypt. Their two children were born in Canada and have dual citizenship with Canada and Egypt.

The father obtained an Egyptian divorce in accordance with the laws of Egypt.

The Ontario case arose when the mother, after the Egyptian divorce and during other family law proceedings in Egypt, moved with the children from Egypt to Canada. The father had been exercising access to the children while they were in Egypt.

The mother brought an application in Ontario for a declaration that the Egyptian divorce not be recognized by the Ontario court and for a number of other orders related to custody, support and the matrimonial home.

While the focus of this case summary is on the recognition of the Egyptian divorce, it is interesting to note that, when the mother argued that the father had been extremely abusive to her physically, verbally and sexually, Justice Campbell was not sympathetic, writing that the Applicant “offers no confirmation, corroboration or any independent evidence of her accusations.” He was much more sympathetic to the father: “Even when aggressively challenged by (female) counsel, I observed no reactive responses or any signs of obvious cultural-male-entitlement. . . “

Section 22 of the Divorce Act addresses the recognition of foreign divorces:

(1)  A divorce granted, on or after the coming into force of this Act, pursuant to the law of a country or a subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2)  A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

The mother argued that the parties did not have a real and substantial connection to Egypt because the family had lived elsewhere for much of the marriage and that they had never lived together in Egypt. It was her position that Canada was the country to which the family had a real and substantial connection.

Justice Campbell agreed with the father, who took the opposite position. The father argued that all of their extended families lived in Egypt and that both of them were raised there. They got married in Egypt. Their daughters spoke only Arabic and all of their friends lived in Egypt.

Justice Campbell noted that the fatal aspect of the mother’s case was that she did not challenge the validity of the Egyptian divorce in Egypt but rather relied on it to continue with other support and property claims in Egypt.

He then reviewed the possible bases within the Children’s Law Reform Act for him to have jurisdiction over the custody aspects of the mother’s case and concluded that there were none.

Justice Campbell recognized the Egyptian divorce as valid and declined to accept jurisdiction over the case, ordering, among other things, that the children be returned to Egypt “forthwith”.

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