Foreign Divorce and Challenges

Foreign Divorce and Challenges

For a foreign divorce to be recognized in Canada, it must comply with s.22 of the Divorce Act, R.S.C. 1985, c.3, which states as follows: “A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce”.

In a recent case, the court ruled that the foreign divorce obtained by the Respondent in Pakistan is invalid and shall not be recognized in Ontario. The main reasons for this decision include:

1. Lack of Real and Substantial Connection to Pakistan: Both parties had resided in Canada for over a decade before their separation and had no significant property, business, or other interests in Pakistan. The parties’ historical ties to Pakistan did not establish a real and substantial connection for divorce purposes.
2. Improper Service and Lack of Notice: The Respondent failed to properly serve the Applicant with the divorce application in Pakistan. The Applicant had no knowledge of the proceedings due to false addresses provided by the Respondent and improper substituted service via a local newspaper.
3. Material Misrepresentations: The Respondent misrepresented critical facts to the Pakistan court, including the residence of the parties and the children. These misrepresentations undermined the fairness of the proceedings and led to a judgment based on fraudulent information.
4. Breach of Natural Justice: The Applicant was denied the opportunity to participate in the divorce proceedings due to lack of notice. This was deemed a fundamental breach of natural justice.
5. Violation of Canadian Public Policy: Recognizing the foreign divorce would contravene public policy due to the procedural unfairness and fraud involved in obtaining the judgment.
6. Prejudice Claims Dismissed: The Respondent’s claim of prejudice, including the impact on her remarriage and new child, was dismissed. The court held that such consequences arose from her own deceptive actions.

Conclusion

The court declared the Pakistani divorce invalid and inapplicable in Canada. The Applicant satisfied the burden of proving that the divorce was improperly obtained through fraudulent means and violated principles of natural justice. The Respondent’s actions rendered the divorce unenforceable under Canadian law.