This issue can arise in a number of contexts:
- a woman has moved to Canada after obtaining a divorce in her country of origin
- a woman returns to her country of origin and obtains a divorce while she is there
- her spouse returns to their country of origin and obtains a divorce without her knowledge or consent
- she needs to establish the validity of a foreign divorce from a previous marriage to allow her to sponsor her new spouse to come to Canada or to be sponsored by a Canadian spouse so she can come to Canada
- she does not want the foreign divorce to be legally recognized in Canada because it would preclude her from seeking spousal support in Canada
- her spouse has unilaterally obtained a religious divorce outside Canada and she does not wish to be divorced from him
Whether or not a foreign divorce will be legally recognized in Canada depends on the facts of the situation, the written law (statute law) and decisions in earlier cases (case law or precedent).
Generally, the approach in Canada is to recognize divorces from other jurisdictions as much as possible.
The Divorce Act states the following:
Section 22(1): A divorce granted . . . pursuant to the law of a country or 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.
Ontario’s Marriage Act, which governs who can and cannot marry, stipulates that a person cannot get a marriage licence if their previous marriage was dissolved outside Canada until s/he obtains written authorization from the Minister of Government and Consumer Services. To get this authorization, the person must provide a number of things, including an opinion letter from an Ontario lawyer that explains why the foreign divorce should be recognized. In some situations, the person may have to obtain a court declaration that recognizes the divorce.
A Canadian court only has jurisdiction to deal with matters such as spousal support under the Divorce Act if the divorce is Canadian. Even provincial legislation is of no help in this situation in Ontario, where the Family Law Act only allows spouses (not already divorced former spouses) to apply for spousal support.
There has been considerable case law as Canadian courts have grappled with when and when not to recognize a foreign divorce.
One of the key issues is that of residency in the foreign jurisdiction. As noted above, the Divorce Act requires that at least one of the spouses be ordinarily resident in that jurisdiction for at least one year before starting the divorce application. There have been numerous decisions that attempt to define what it means to be “ordinarily resident.” In a 2005 case, Quigley v Willmore, the Nova Scotia Court identified the following principles:
- Determining ordinary residence is fact specific and a matter of degree
- Ordinary residence is different from casual, intermittent, special, temporary, occasional or exceptional residence
- It is not the same as a stay or a visit
- Ordinary residence means there is a settled nature to the situation; the person lives their ordinary life in this location
- It can be time limited or indefinite
- Ordinary residence is established when someone goes to a new location with the intention of making a home there for an indefinite period of time
Generally, but not always, people are only allowed to have one ordinary residence, which may present a challenge to people whose work or lifestyle includes living in a number of international locations, if they decide to apply for a divorce in one of them that they then wish to be recognized in Canada. The case law on this issue is quite divided, with no clear precedent as to when someone can have more than one ordinary residence.
Canadian courts will recognize a foreign divorce where either spouse had a “real and substantial connection” to the country where the divorce was obtained, but this is also difficult to define with precision. The concept is intended to be flexible and is always dependent on the specific circumstances of each situation.
Courts look at a number of factors – domicile, residence, employment, nationality, citizenship, location of the marriage, ownership of property, location of bank accounts, frequency of visits and the presence of immediate and extended family – in determining whether or not someone has a real and substantial connection to a particular jurisdiction.
A foreign divorce may not be recognized if the other person did not receive proper notice. This is considered by Canadian courts to result in a lack of natural justice: a person should know their spouse is seeking a divorce and have the opportunity (whether or not they take it) to participate in the process.
This issue arose in a 2005 case, El Qaoud v Orabi. The couple had immigrated to Canada from Kuwait in 2002 and, later the same year, the husband returned to Kuwait. While there, he made a short trip to Jordan, where he obtained a divorce. One of the reasons the Canadian court did not recognize the divorce was because the husband did not serve his wife with notice of the proceedings, even though he (obviously) knew where she lived.
Canadian courts will not recognize a foreign divorce if to do so would be contrary to public policy interests. For example, in the 2010 case of Zhang v Lin, the Alberta court refused to recognize a divorce from Texas because to do so would bar the wife from making a claim for support in Alberta, where she lived.
A final issue that can arise is whether Canada should recognize divorces granted by foreign religious laws when one spouse has acted unilaterally. It appears that, at the present time, the state of the case law is that if the unilateral, religious divorce has been properly registered in the country where it was obtained, then it is considered valid in Canada. If it has not been registered, then it will not be recognized here.