Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211025 DOCKET: C69381

Feldman, Pepall and Tulloch JJ.A.

BETWEEN

Iryna Antonyuk Applicant (Appellant)

and

Mykhaylo Antonyuk Respondent (Respondent)

Counsel: Iryna Antonyuk, acting in person Igor Yushchenko, for the respondent

Heard: October 13, 2021 by video conference

On appeal from the order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated January 29, 2020, with reasons reported at 2020 ONSC 644.

Reasons for Decision

[1] The appellant appeals the decision of the trial judge which recognized the divorce of the appellant and the respondent obtained by the respondent in Ukraine, dated October 23, 1998, pursuant to s. 22 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[2] The appellant argued at trial that the Ukrainian divorce was invalidly obtained and that the court in Kiev did not have jurisdiction to grant the divorce.

[3] The appellant sought a divorce in Canada in 2017 and obtained a divorce order, but that divorce was set aside when the respondent took the position that the parties were already divorced. The respondent has remarried and has a child with his current wife. The appellant’s position is that she needs a Canadian divorce in order to be able to remarry because the Ukrainian divorce is not valid.

[4] This was a four-day trial with evidence from the parties, a witness who observed the parties immediately after the Ukrainian divorce, and an expert on Ukrainian law.

[5] The trial judge considered the requirements of s. 22 of the Divorce Act for the recognition of a foreign divorce, noting that foreign divorce decrees are presumptively valid.

[6] The trial judge accepted the opinion of the expert that the Ukrainian court had jurisdiction to grant the divorce. The trial judge also accepted the finding by the Ukrainian court that the appellant had been given notice of the hearing and had not appeared. The trial judge noted that the appellant had not alleged fraud, and there was no evidence of fraud.

[7] The trial judge found that the appellant had relied on the Certificate of Divorce from Ukraine when filing her Canadian income tax returns as a divorced person since 2001 and continued to do so even after she began to question the validity of the divorce. The trial judge also observed that the appellant delayed for many years before challenging the validity of the divorce. This observation was made in the context of the fact that failing to recognize the validity of the divorce would be very detrimental to the respondent and his family.

[8] The trial judge concluded that the appellant had not met her onus of proving that the Certificate of Divorce from Ukraine was not properly obtained and should not be recognized in Canada.

[9] We see no error in the trial judge’s findings or analysis. She was entitled to accept the evidence presented that verified the validity of the Ukrainian divorce and to reject the position of the appellant.

[10] The appeal is dismissed with costs fixed in the amount of $5,000, inclusive of disbursements and HST.

“K. Feldman J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”