Case summary: Abraham v. Gallo 2022 ONCA 874

This is an interesting decision where the mother in this case sought a declaration that a foreign divorce was not valid in order to proceed with a claim for spousal support under the Divorce Act. The father argued that the divorce was valid and sought to dismiss the mother’s claim for spousal support due to a lack of jurisdiction.

The mother and father in this case were married for over 15 years before they separated in 2016. They were both born in Egypt and follow the Islamic faith. Neither of them have lived in or visited Egypt in over 20 years.

Before their separation in 2016, they had separated in 2012. At that time, the father had brought an application in court for various relief including a divorce. The parties ultimately reconciled in 2014 and withdrew the proceedings. The parties separated again in October 2016 and in December, the father sent a text message to the mother stating that they were divorced. This communication represented the third instance where the father had stated that they were divorced. The expert evidence of both the mother and father agreed that the text message represented the completion of a divorce or “talaq” under Islamic law.

Under Islamic law, a bare talaq divorce is said to have taken place when the husband pronounces three times, “I divorce you”. This pronouncement dissolves the marriage instantly.

The father started a relationship with his present wife in 2017 and wanted a divorce in order to remarry. He did not start an application for divorce in Ontario or Egyptian courts. Instead, in January 2018, he arranged for him and the mother to attend at the Egyptian Embassy in Ontario to register the bare talaq divorce that had occurred in December 2016. The Declaration of Divorce registered by the Egyptian Embassy was filed and the Registrar General of Ontario then issued the father a marriage licence based on the Declaration of Divorce. The father remarried in June 2019.

The mother started proceedings in November 2019 and in her application she sought a declaration that the registered bare talaq divorce should not be enforced, amongst other relief. She indicated that she was unaware that the registration of the bare talaq divorce would disentitle her from claiming spousal support.

The motion judge dismissed the mother’s motion and recognized the registered bare talaq divorce under s. 22(3) of the Divorce Act. Section 22 of the Divorce Act sets out the statutory criteria for recognizing foreign divorces in Canada. The motion judge held that the registered bare talaq divorce “is presumed valid” since the province had issued the father a marriage license to marry his second wife and that the mother had failed to meet her onus “to establish otherwise”.

The mother appealed the decision and the issue on appeal was whether Canadian law recognizes an Islamic talaq divorce performed in Ontario and subsequently registered with Egyptian governmental agencies.

The Court at para 15, noted that a foreign divorce decree will not be recognized in limited circumstances, including when:

1. The responding spouse did not receive notice of the divorce application
2. The foreign divorce is contrary to Canadian public policy
3. The foreign divorce or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country
4. There is evidence of fraud going to the jurisdiction of the authority that granted the divorce
5. There was a denial of natural justice by the authority that granted the divorce in making the divorce order

The judges of the Court of Appeal felt that the motion judge put too much weight on the historical connections between the parties and Egypt rather than looking at their circumstances and connections at the time of the divorce.

In arriving at their decision, the CA considered section 22 of the Divorce Act, which sets out the statutory criteria for recognizing foreign divorces in Canada.

1. Foreign law must be proved by expert evidence (para 22)
2. A foreign divorce decree granted by a competent authority is presumed to be valid however the onus of proving that a foreign divorce is a foreign divorce decree granted by a competent authority is on the party seeking to rely upon it (para 22)
3. For a foreign divorce to be recognized under Canadian law, the divorce must be granted and not only administratively registered or recognized by a competent authority (para 23)

Ultimately, the Court of Appeal found that the mother’s application for relief, including her claim for spousal support was to proceed.