Court File and Parties
COURT FILE NO.: FC-19-652 DATE: 2022-02-17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Sharon Fahmy Abraham Applicant – and – Waleed Rashad Gallo Respondent
Counsel: M. Stangarone - counsel J. Schuman - counsel
HEARD: December 20, 2021
Reasons for Ruling
Justice R. F. MacLeod
Overview
1The Applicant (“Abraham”) seeks a declaration that the Egyptian Divorce Order, dated December 2017, not be recognized or enforced in Ontario.
2She also seeks interim spousal support.
3The Respondent (“Gallo”) seeks a declaration that the Divorce Declaration obtained through the Egyptian Embassy on January 3, 2018, is valid and/or enforceable in Ontario.
4He also seeks dismissal of Abraham’s spousal support claims for lack of jurisdiction.
5Gallo’s motion is framed as a summary judgment motion. Neither Gallo nor Abraham seeks a trial of the recognition of the Egyptian divorce. Each asks the court to determine the matter in a summary manner based on the evidence filed for this motion.
Facts
6The parties were each born in Egypt. They are Egyptian citizens.
7They have valid Egyptian passports.
8They are eligible to vote in Egyptian elections.
9Gallo served in the Egyptian army.
10Abraham owns property in Egypt and has at least one bank account in Egypt.
11They married in Egypt on August 29, 2001.
12They moved to Canada in 2002.
13Their two children, aged 19 and 16, were born in Canada. They have never been to Egypt. They now live with Abraham.
14The children have Egyptian citizenship and have Egyptian birth certificates.
15The parties initially separated in May of 2012. Litigation was commenced in the Ontario courts, including a claim by Abraham for spousal support under the Divorce Act.
16The parties reconciled in 2014.
17They separated on October 23, 2016.
18On December 17, 2016, Gallo stated to Abraham for the third time his intention to divorce her pursuant to Islamic talaq.
19Gallo began dating his current wife in late 2017.
20Gallo attended the Egyptian Embassy in Ottawa on January 3, 2018, to sign documentation required for the divorce declaration to be registered under Civil Affairs Registry No. 66.
21Abraham travelled to Ottawa to sign the required documentation two days later, January 5, 2018.
22The Declaration of Divorce was filed with the Civil Affairs Registry No. 66 on January 30, 2018.
23In April 2018, Gallo asked Abraham to remove her chattels from property his parents owned in Egypt, which she did.
24The Registrar General of Ontario recognized the Egyptian divorce and issued Gallo a marriage license. He remarried in June of 2019.
25On November 19, 2019, Abraham commenced litigation in Ontario. She acknowledges the Egyptian divorce in the Application. She does not seek a divorce, but she seeks spousal support under the Divorce Act and the Family Law Act.
26In June of 2020, Abraham first raised the issue of the invalidity of the Egyptian divorce.
27Gallo has been paying full child support in accordance with Ontario law since 2017.
The Main Issue: Can Abraham claim spousal support from Gallo?
28Corollary relief can only be granted as a corollary to a Canadian divorce (Rothgeiesser v. Rothgiesser (2000), R.F.L. (5th) 266 (Ont. C. A.)) and a former spouse has no standing to seek spousal support under the Family Law Act. Therefore, Abraham cannot claim spousal support in Ontario unless the Egyptian divorce is not recognized in Ontario.
The Law
29As summarized by Chappel, J. in Wilson v. Kovalev, 2016 ONSC 163 (Ont. S.C.J.):
8 The starting point for the legal analysis in this case is section 22 of the Divorce Act, (R.S.C. 1985, c. 3 (2nd Supp.) as amended) (“the Act”), which deals with the recognition of foreign divorces for the purposes of determining the marital status of individuals in Canada. That section provides as follows:
Recognition of foreign divorce
- (1) A divorce granted, on or after the coming into force of this Act, 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 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.
Idem
(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 determined 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.
Other recognition rules preserved
(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.
9 The parties acknowledge that sections 22(1) and (2) do not apply in this case, and that the question to be determined is whether the Peruvian divorce should be recognized pursuant to section 22(3) of the Act. That section allows the court to recognize a foreign divorce on the basis of the principles of conflicts of laws and the rules of common law (Essa v. Mekawi, 2014 ONSC 7409 (Ont. S.C.J.); Janes v. Pardo, 2002 CarswellNfld 16 (Nfld. T.D.)).
10 At common law, there are presumptions in favour of the validity of a foreign divorce decree. Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained (Powell v. Cockburn, [1976] S.C.J. No. 66 (S.C.C.); Martinez v. Basail, 2010 ONSC 2038 (Ont. S.C.J.); Janes v. Pardo, Supra.) The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:
- The Respondent did not receive notice of the Divorce Application;
- The foreign divorce is contrary to Canadian public policy;
- The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
- Where there is evidence of fraud going to the jurisdiction of the granting authority; or
- There was a denial of natural justice by the granting authority in making the divorce order.
(Essa, Supra.; Powell, Supra.; S. (R.N.) v. S. (K.), 2012 BCSC 1874, 2012 CarswellBC 3850 (B.C. S.C.); Pitre v. Nguyen, 2007 BCSC 1161, 2007 CarswellBC 2229 (B.C. S.C.); Sangi v. Sangi, 2011 BCSC 523 (B.C. S.C.); Beals v. Saldanha, 2003 SCC 72 (S.C.C.)).
11 By contrast, there are numerous bases upon which Ontario courts will recognize a divorce obtained in a foreign country, including the following:
- The parties were domiciled in the foreign country that granted the divorce (“the granting country”) when the divorce proceedings were commenced;
- Either party was domiciled in the granting country when the divorce order was made;
- The divorce, wherever granted, would be recognized by the law of the country where the parties were domiciled when the divorce order was made;
- The jurisdictional rule of the granting country corresponds to the Canadian jurisdictional rule in divorce proceedings;
- Where either party had a real and substantial connection with the granting country; and
- Where the foreign divorce would be recognized in another foreign jurisdiction with which either party has a real and substantial connection.
(Julien Payne on Divorce, 4th ed., p. 111; Essa, Supra; El Qaoud v. Orabi, 2005 NSCA 28, 2005 CarswellNS 86 (N.S. C.A.); Nowacki v. Nowacki, 2014 ONSC 2052, 2014 CarswellOnt 4091 (Ont. S.C.J.); Kadri v. Kadri, 2015 ONSC 321 (Ont. S.C.J.);
Discussion
30Here, only s. 22(3) of the Divorce Act applies.
31The Egyptian divorce is presumed valid. The onus is on Abraham to establish otherwise.
32Points of argument raised by the parties are outlined under the following headings:
Duress
33Abraham alleges that as of November 2017, Gallo pressured her into formalizing the 2016 bare talaq divorce through the Egyptian Embassy.
34Gallo acknowledges he was aware he could commence proceedings in Ontario. He preferred the Egyptian process because he believed his wife wanted to delay the process and that he would be able to move more quickly in the Egyptian forum. He was afraid of being prevented from remarrying for a significant period of time.
35Abraham alleges Gallo chose the Egyptian process to eliminate her spousal support claim. Gallo denies this. He asserts that the urgency sensed by Abraham was a result of his desire to get remarried and his knowledge of her past reluctance to deal with these matters promptly.
36Abraham alleges duress because Gallo threatened to involve her family, knowing they were traditional, and that Abraham’s family would suffer embarrassment if her separation became widely known.
37She states that her father’s last wish was for her not to be divorced because, back in Egypt, this would be a topic of discussion and speculation.
38Gallo threatened to disclose the separation to Abraham’s family. This is undisputed. Gallo says it was to get her to speed up, again because of her historical reluctance to deal with these matters promptly.
39Abraham states that Gallo’s threat to disclose the separation to her family constitutes duress and that she was given no choice but to accept his demand to formalize the Egyptian divorce.
40This is not duress that invalidates consent.
41Gallo wanted to be divorced in a hurry. He notified Abraham promptly of his intentions. He made the proper arrangements to have his intentions satisfied. When Abraham shuffled her feet, he responded by imposing deadlines by which he expected action on Abraham’s part, or he would let the truth be known to her family.
42Abraham wanted her family sheltered from the truth. She wanted to avoid their embarrassment because of her separation (a status to which she was not opposed). She ultimately agreed to Gallo’s timeline to keep up appearances. Note that at no point during these discussions was Abraham contemplating an Ontario divorce, considering starting her own proceedings, or asking Gallo to proceed in another manner. She was just delaying the process.
43Abraham had over a year to consider her options after Gallo enacted the bare talaq. She had many months to consider her options after Gallo notified her of his desire to formalize and register the divorce. She had access to legal counsel; she had previous experience with legal counsel; she had previously commenced litigation.
44It is not clear whether she actually consulted legal counsel in these critical months. It is quite possible, even likely, that she did not comprehend the effect of the Egyptian divorce upon her spousal support entitlement in Ontario. Had she known she was going to be shut out of a spousal support claim, and if that was her reason for objecting to Gallo’s timeline, and if Gallo was pressuring her because of the spousal support issue, then a claim for duress may have been supported. But that case has not been made.
45Abraham was not cooperating with or was delaying Gallo’s divorce request. She finally consented to his timeline knowing continued refusal might lead to the embarrassment of her family. She eventually travelled to Ottawa from Kitchener to sign documents confirming her consent to the divorce registration. Abraham was not under duress sufficient to invalidate that consent.
Notice and Natural Justice
46Natural justice requires a fair process. The defence of natural justice is restricted to the form of the foreign procedure, to due process, and does not relate to the merits of the case.
47A bare talaq, wherein a husband may simply verbally and unilaterally declare a divorce without notice, is clearly lacking under natural justice analysis. But that is not the case here.
48Abraham received advance notice of Gallo’s intention to register the divorce. She agreed to participate, and she went to what amounts to, from a Canadian perspective, extraordinary efforts to travel to Ottawa from Kitchener to confirm her consent to the registry.
49Gallo’s expert’s evidence is that had Abraham not cooperated and consented, Gallo could have obtained a divorce in absentia, which would have allowed Abraham to seek alimony under Egyptian law in addition to other relief.
50Her alimony entitlement under Egyptian law is no doubt less than her claim under Ontario law, but that is irrelevant when analyzing natural justice. She received notice, she had options in terms of her response to the notice (including the possibility of commencing an Ontario proceeding), and she proceeded pursuant to her preference.
51There was no denial of natural justice to Abraham.
Public Policy
52Abraham says the Egyptian divorce should not be recognized on public policy grounds, based on her lesser spousal support claim under Egyptian law.
53The Supreme Court of Canada on challenging a foreign judgment based on public policy (Beals v. Saldanha, 2003 SCC 72 (S.C.C.)):
“It is not a remedy to be used lightly. The expansion of this defense to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application.”
54Abraham’s spousal support entitlement is treated differently under Canadian and Egyptian law. Egyptian law provides less to her than does Canadian law. This may be a perceived injustice in terms of the redistribution of finances upon the dissolution of a marriage, but that is not enough to warrant intervention.
55Is financial redistribution upon marriage dissolution a moral issue? Certainly not. The issue is not concerned with right or wrong behaviour and the goodness or badness of human character. In fact, the resulting redistribution may be significantly at odds with the moralities in play. Therefore, following the direction from the Supreme Court of Canada, the fact that two legal regimes treat the redistribution of finances upon marriage dissolution differently is of no consequence under public policy analysis.
56Gallo argues for the upholding of the Egyptian divorce from a public policy perspective. He obtained a divorce with proper notice and procedure. He relied on that divorce to obtain a marriage license in Ontario. He then entered a bona fide, valid Ontario marriage.
57If Abraham is successful, is Gallo a bigamist? Abraham argues that non-recognition of the Egyptian divorce does not necessarily impair his current marriage, but how can that be true? There is some commentary that this might work if the subsequent marriage is in another jurisdiction. That is, the non-recognition in one jurisdiction is not relevant to the remarrying jurisdiction, so just carry on. But that does not follow when Ontario is both the non-recognizing and the re-marriage jurisdiction. Ontario granted him a license to remarry based on the accepted validity of the Egyptian divorce. If Ontario does not recognize the divorce, is not the Ontario license to remarry also impugned along with the subsequent re-marriage? Or are we to accept that Ontario may validly recognize a divorce for some purposes but not recognize it for others? This cannot be correct.
58Under Abraham’s argument, Gallo would also have two current spouses under the Divorce Act. This cannot be correct.
59The prospect of Gallo having two spouses or of having his current marriage retroactively invalidated is a legal and moral issue. Public policy dictates that this conundrum be avoided unless absolutely necessary.
60Here, the desire to avoid this conundrum is strong and outweighs any concern the court has regarding Abraham’s argument of unfairness for being shut out of Ontario’s spousal support regime. Public policy analysis favours upholding the Egyptian divorce.
Real and Substantial Connection
61Should the court grant/deny recognition of the Egyptian divorce because the parties did/ did not have a real and substantial connection to the jurisdiction?
62The Supreme Court of Canada set out the test (Beals v. Saldanha, 2003 SCC 72 (S.C.C.)):
“The real and substantial connection test” requires that a significant connection exists between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one.”
63This sets a low bar. The test does not require recency. The test does not require that this be the most real or most substantial connection to a jurisdiction.
64Here the test is easily met. The parties were born and raised in Egypt. Gallo spent his entire childhood there. The parties married there. Gallo served in the army there. They have family there. Abraham has a bank account there. Abraham remains very concerned about her family’s reputation in Egypt (as she outlined in her arguments regarding duress.)
65The test merely requires that one party has participated “in something of significance” in Egypt. Who would argue their marriage was not of significance? Who would argue that military service is not significant and does not constitute active involvement? If the Supreme Court’s test is plainly read, facts of this nature should always satisfy it.
66The parties had a real and substantial connection to Egypt at the date of the divorce.
Would the Egyptian divorce be recognized by the law of Ontario (where the parties were domiciled when the divorce order was made)?
67As confirmed in Wilson cited above, this is one of the bases upon which Ontario courts will recognize a divorce obtained in a foreign country.
68Here we do not have to guess or analyze. Ontario has already recognized Gallo’s divorce. It did so when Gallo forwarded the particulars of the divorce to Ontario in support of his application for a marriage license. Ontario reviewed the particulars and deemed the divorce valid for allowing Gallo to remarry in Ontario.
69Abraham’s Egyptian law expert stated that Egypt “likely” has no jurisdiction over the case since the parties had not resided there since 2002. He said that the declaration “may” not be honoured by the Egyptian courts. These soft opinions do not trump Gallo’s Egyptian law expert, whose firm opinion is that Egypt had jurisdiction and would honour the declaration.
70Abraham also contends that the process of signing and witnessing the declaration was not proper. She says the requirement for two witnesses to be present together with the two spouses was not followed. This allegation is not sufficient to support the request not to recognize this divorce. Abraham attended willingly and with the intent to register the divorce. She does not allege any fraud. If the Egyptian authorities did not adhere strictly to their signing and witnessing policies when accepting these documents, that is not a matter for this court to second guess or correct.
Summary
71Gallo wanted to be divorced. He chose to pursue a formal divorce in the Egyptian jurisdiction, a valid option available under Egyptian and Canadian law. Abraham consented to an Egyptian divorce, not realizing that this would significantly impair her spousal support entitlement. Her decision was made freely, not forced upon her by Gallo. At all times, she was free to explore her options and take a different path. Gallo correctly followed the law and procedure of Egypt to obtain a valid divorce. Ontario has already recognized the Egyptian divorce to allow him to remarry. The fact that Abraham’s free decision to accept the Egyptian jurisdiction is detrimental to her finances does not allow the court to invalidate the divorce. This is the case whether or not avoiding spousal support was Gallo’s prime motivation in choosing the Egyptian jurisdiction. The key is that he did nothing to prevent Abraham from exploring her options and seeking her remedies in Egypt or Ontario.
72For all of the above reasons, Abraham's request for a declaration not recognizing the Egyptian divorce is dismissed.
73Abraham has no standing to claim spousal support in Ontario from Gallo. There is no triable issue. Abraham’s spousal support claim is dismissed.
74If necessary, written submissions on costs of no more than three pages plus Bills of Costs and Offers to Settle may be served and submitted by Gallo by March 11, 2022, and by Abraham by March 25, 2022.
“R.F. MacLeod” Justice R. F. MacLeod Released: February 17, 2022