Court of Appeal for Ontario

Date: 2019-10-16 Docket: C66551

Judges: Lauwers, van Rensburg and Roberts JJ.A.

Between

Lidiia Novikova Applicant (Respondent in the Appeal)

and

Kirill Lyzo Respondent (Appellant in the Appeal)

Counsel

Rupa Murthi, for the appellant

Ruslana Korytko, for the respondent

Heard: August 28, 2019

On appeal from the order of Justice Francine Van Melle of the Superior Court of Justice, dated January 11, 2019, with reasons reported at 2019 ONSC 264.

Reasons for Decision

Background

[1] The parties are involved in family law proceedings that were started by the respondent, Ms. Novikova, in October 2016 in the Superior Court of Justice in Ontario. A consent order for interim child and spousal support was made on January 30, 2018.

[2] In July 2018, the appellant, Mr. Lyzo, brought a motion for summary judgment seeking, among other things, to validate a divorce obtained in the Russian Federation (the "Russian Divorce") and to terminate the respondent's right to spousal support. Ms. Novikova brought her own motion for summary judgment, seeking to have the Russian Divorce declared invalid, and an increase in temporary spousal and child support. The motion judge dismissed Mr. Lyzo's motion. She granted Ms. Novikova's motion in respect of the Russian Divorce and concluded that the issue of support was best left for trial.

[3] Mr. Lyzo appeals the motion judge's order declaring the Russian Divorce invalid. He seeks a new hearing of the summary judgment motions before a different judge, or alternatively, that the issue of the validity of the Russian Divorce proceed to trial.

[4] For the reasons that follow we dismiss the appeal.

Facts

[5] The parties and their children are Russian citizens and permanent residents of Canada. They cohabited beginning in September 2005, and were married in September 2008 in the Russian Federation, where their extended families continue to reside. They have two children, aged nine and six, who were born in the Russian Federation. Mr. Lyzo moved to Canada in 2012, and Ms. Novikova followed with the children in 2013. The parties separated in December 2015 while living in Canada.

[6] Mr. Lyzo began divorce proceedings in the Russian Federation after returning there for several months in February 2016. There is some evidence in the record that Russian citizens and foreign nationals are required to register their address with a government office. Ms. Novikova's registered address was the address where her parents continued to live. Registered letters with notice of the divorce application were sent to Ms. Novikova at her registered address. Her parents refused to accept the documents on her behalf. Communications from the local court were also sent to her at that address.

[7] The Russian Divorce was finalized on June 8, 2016. Ms. Novikova, who was aware of the proceedings, but did not receive any of the documents, did not receive a copy of the divorce decree within the 30-day appeal period.

[8] The motion judge recognized that Mr. Lyzo was relying on s. 22(3) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) to argue that the divorce was valid because of the parties' "substantial connection" with the Russian Federation. Mr. Lyzo claimed that Ms. Novikova received proper notice of the divorce through the documents sent to her registered address in Russia. Mr. Lyzo took the position that the Russian Divorce extinguished Ms. Novikova's entitlement to spousal support (that the Russian Divorce, if valid, would extinguish Ms. Novikova's entitlement to spousal support in Canada is accepted as a fact in this appeal). Ms. Novikova asserted that she had not been properly served with the Russian divorce proceedings and that she had not received a copy of the divorce order in time to appeal. Although she knew the divorce was proceeding, she believed Mr. Lyzo was simply obtaining a divorce and that the balance of the issues would be dealt with in Canada, where the parties were represented by counsel and had already started discussions about support.

[9] On the motion, Mr. Lyzo produced the complete Russian divorce file, with the documents translated into English. From this the motion judge noted that, before the divorce was granted by the Russian tribunal on June 8, 2016, the judicial officer had adjourned the matter twice because of concerns about service.

[10] The parties also relied on letters (with translations) from Mr. Lyzo's lawyer in Russia and a Russian lawyer retained by Ms. Novikova, offering competing views on whether Ms. Novikova had been properly served with the documents leading to the Russian Divorce. The motion judge noted that the lawyers had not provided proper expert opinions with a statement of their qualifications, and by affidavit, and that the relevant Russian statutory provisions had not been provided. She was unable to determine the validity of the information provided, other than to confirm that Ms. Novikova had not received a copy of the divorce judgment until after the appeal period expired. The motion judge concluded that the evidence was insufficient to determine whether the Russian Divorce was obtained in compliance with Russian law.

Motion Judge's Decision

[11] The motion judge dismissed Mr. Lyzo's motion and declared the Russian Divorce invalid, based on lack of notice to Ms. Novikova. Mr. Lyzo had lawyers in both Ontario and in Russia. He knew where Ms. Novikova was living, and that it was not in Russia. He did not provide the divorce documents to Ms. Novikova, and further, as Mr. Lyzo did not remarry until more than a year after the parties' separation, one could assume he obtained the divorce in Russia in order to defeat Ms. Novikova's claim to spousal support in Canada. Although Ms. Novikova knew that Mr. Lyzo was obtaining a divorce in Russia, she did not see any of the documents, and she did not have the opportunity to seek legal advice about them, which would have told her that she could not obtain spousal support in Canada once a divorce in Russia had been granted. The motion judge specifically did not decide whether Mr. Lyzo was entitled to petition for divorce in Russia in the first place.

Appellant's Arguments

[12] The appellant asserts that the motion judge erred in declaring the Russian Divorce invalid for lack of notice without first determining whether the parties had a real and substantial connection to the Russian Federation and accordingly, whether the Russian Divorce was valid under Russian law. According to the appellant, it was necessary for the motion judge to make this determination first because there is a presumption in Canadian law that validly obtained foreign divorces will be recognized in Canada. The issue of whether the motion judge should nonetheless have refused to recognize the Russian Divorce due to a denial of natural justice was therefore a secondary issue that should have been assessed with this presumption in mind. The appellant also submits that, in any event, the motion judge ought to have recognized the validity of the divorce because the respondent was aware of and consented to the divorce proceedings, and at all material times had legal advice in Canada.

Court's Analysis

Recognition of Foreign Divorces

[13] While in our view the motion judge did not err in refusing to recognize the Russian Divorce, we would not adopt her entire analysis.

[14] Section 22 of the Divorce Act provides for the recognition of foreign divorces in Canada. Section 22(3) expressly upholds the common law principles that were helpfully summarized in Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111: Canadian courts will recognize a foreign divorce: (i) where jurisdiction was assumed on the basis of the domicile of the spouses; (ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties; (iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings; (iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada; (v) where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or (vi) where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection. See also Jean-Gabriel Castel and Janet Walker, Canadian Conflict of Laws, 6th ed., loose-leaf (Markham: LexisNexis Canada Inc., 2005) at para.17.2.a; El Qaoud v. Orabi, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 14. As already noted, Mr. Lyzo contends that the Russian Divorce was properly obtained in the Russian Federation on the basis of the parties' real and substantial connection to that jurisdiction.

Grounds for Refusing Recognition

[15] A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice (including the absence of notice) or public policy: see Powell v. Cockburn, [1977] 2 S.C.R. 218, at p. 227; El Qaoud, at paras. 17-18; Delaporte v. Delaporte, [1927] 4 D.L.R. 933; and Canadian Conflict of Laws, at para.17.2.c.

Substantive Grounds vs. Procedural Fairness

[16] In this case, the motion judge need not have been concerned with the deficiencies in the evidence as to whether the divorce was obtained in compliance with Russian law. In particular, she need not have been concerned with whether, had the Russian tribunal known about the respondent's residence in Canada, it would have taken further measures to ensure proper service before granting the Russian Divorce. It is not typically appropriate or necessary for Canadian courts to inquire into the substantive grounds upon which a foreign divorce decree is granted: see e.g. Powell, at p. 228 and Pitre v. Nguyen, 2007 BCSC 1161, at paras. 17-18.

Order of Analysis

[17] Nonetheless, the motion judge appropriately focussed on the lack of notice to Ms. Novikova, which was a denial of natural justice. This was the reason for the refusal to recognize the Russian Divorce. As in Powell, where there was evidence of fraud rather than lack of notice, it was appropriate to address this issue before (or without) engaging in an analysis of "real and substantial connection": Powell, at p. 227. While it is true, as Mr. Lyzo submits, that fraud, natural justice, and public policy are often referred to as "defences", it is not necessary for the court to consider them 'second', as demonstrated by Powell.

[18] On this basis, we disagree with the appellant's main argument on appeal: that the motion judge erred in law in failing to determine the "real and substantial connection" issue, before considering whether to refuse recognition of the Russian Divorce because of fraud, natural justice or public policy concerns.

Sufficiency of Notice

[19] We are also satisfied that there was no other error in the motion judge's finding that there was insufficient notice to the respondent, or in concluding that on this basis, the Russian Divorce should not be recognized.

Disposition

[20] For these reasons the appeal is dismissed. The appellant shall pay the respondent's costs of the appeal in the sum of $10,000, inclusive of disbursements and HST.

"P. Lauwers J.A."

"K. van Rensburg J.A."

"L.B. Roberts J.A."