COURT OF APPEAL FOR ONTARIO DATE: 20221215 DOCKET: C70508 Lauwers, Roberts and Trotter JJ.A.
BETWEEN
Sharon Fahmy Abraham Applicant (Appellant)
and
Waleed Rashad Gallo Respondent (Respondent)
Michael J. Stangarone and Stephen P. Kirby, for the appellant Rachel Williams, for the respondent
Heard: October 11, 2022
On appeal from the order of Justice Robert F. MacLeod of the Superior Court of Justice, dated February 17, 2022, with reasons reported at 2022 ONSC 1136.
Roberts J.A.:
Overview
[1] The question on this appeal is whether Canadian law recognizes an Islamic talaq divorce (a “bare talaq divorce”), performed in Ontario and subsequently registered with Egyptian governmental agencies.
[2] A bare talaq divorce arises from the husband’s unilateral and exclusive right to dissolve the marriage through a “private recital of verbal formula”: Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), at p. 1031; Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 F.C.R. 531, at para. 20; Abdulla v. Al-Kayem, 2021 ONSC 3562, at para. 20; Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 23. Courts have declined to recognize bare talaq divorces as effective; without some form of adjudicative or official oversight, they are regarded as “manifestly contrary to public policy”: Chaudhary, at p. 1032; Amin, at para. 20; Abdulla, at para. 21.
[3] The motion judge here acknowledged the invalidity of a “bare, unilateral talaq” divorce but held that since the bare talaq divorce in this case was later registered with Egyptian governmental agencies, it was a presumptively valid foreign divorce under s. 22(3) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). As a former rather than current spouse, the appellant could no longer claim spousal support and the court lacked jurisdiction to grant it: Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172, at paras. 27-30; Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, at para. 25.
[4] In my view, the motion judge erred in law in failing to distinguish between the granting and the registering of a divorce. In the circumstances of this case, registering the divorce with the Egyptian Embassy, the Civil Affairs Registry and the Ministry of Justice in Egypt amounted to no more than the evidentiary attestation of the respondent’s unilateral pronouncement of a bare talaq.
[5] While not strictly necessary to dispose of the appeal, in my view, the motion judge also erred in law by recognizing the registered bare talaq divorce as a valid divorce under s. 22(3) of the Divorce Act in accordance with conflict of laws and common law principles. The parties had no real and substantial connection to Egypt at the time of the divorce.
[6] I would therefore allow the appeal and set aside the motion judge’s order and his April 12, 2022 costs order. The appellant’s application for relief may proceed, including her claim for spousal support.
Background
[7] The parties were married for over 15 years before they finally separated in 2016. They were both born in Egypt and are adherents to the Islamic faith. Neither of them has lived in or visited Egypt in over 20 years. Their two children were born in Ontario where the parties have resided since 2002. The respondent provided the main financial support for the family and the appellant principally cared for their children and managed their home. The children continue to live with the appellant in Kitchener. The respondent has remarried and resides with his wife and her children in Oakville. He has paid child support to the appellant since 2017 but has not paid any spousal support.
[8] Prior to the final separation in 2016, the parties had separated in 2012. At that time, the respondent brought an application in Ontario for various heads of relief, including a divorce, a division of the net family property, and parenting time with his children. In her Answer, the appellant claimed spousal and child support, in addition to a divorce and a division of the net family property. The application was not adjudicated on its merits. The parties reconciled in 2014 and withdrew the proceedings.
[9] The parties separated again in October 2016. On December 17, 2016, the respondent sent a text message to the appellant in which he stated that they were divorced. This communication represented the third instance where the respondent had stated that they were divorced. The expert evidence of both parties agreed that the respondent’s December 17, 2016 text message represented the completion of a divorce or “talaq” under Islamic law.
[10] The respondent started a relationship with his present wife in late 2017. He wished to obtain a divorce so he could remarry. He did not start an application for divorce in Ontario or Egyptian courts. Instead, in January 2018, the respondent arranged for the parties to attend at the Egyptian Embassy in Ontario to register the bare talaq divorce that had occurred in December 2016. The parties attended the Embassy separately. On January 30, 2018, the Declaration of Divorce registered by the Egyptian Embassy was filed with the Egyptian Civil Affairs Registry No. 66. The Registrar General of Ontario then issued the respondent a marriage licence based on the Declaration of Divorce. The respondent remarried in June 2019.
[11] On November 19, 2019, the appellant started the present proceedings. In her application she seeks, among other things, a declaration that the registered bare talaq divorce should not be enforced, an order for spousal and child support, exclusive possession of the matrimonial home, and a division of net family property. She brought a motion for summary judgment for her claims for declaratory relief and spousal support. Her unchallenged evidence was that she was unaware that the registration of the bare talaq divorce would disentitle her from claiming spousal support.
[12] The motion judge dismissed the appellant’s summary judgment motion and recognized the registered bare talaq divorce under s. 22(3) of the Divorce Act. He held that the registered bare talaq divorce “is presumed valid” and that the appellant had failed to meet her onus “to establish otherwise”. He rejected the appellant’s submissions of duress, finding that she voluntarily attended the Egyptian Embassy to register the bare talaq. He found there was no denial of natural justice to the appellant arising out of her lost entitlement to claim spousal support following the divorce registration because she could have obtained the benefit of legal advice had she chosen to do so. Finally, he determined that there was a real and substantial connection between the parties and Egypt because: the parties were born and raised in Egypt; the respondent spent his entire childhood there; the parties married there; the respondent served in the army there; the parties have family there; the appellant has a bank account there and remains very concerned about her family’s reputation in Egypt because of the bare talaq divorce. Having recognized the registered bare talaq divorce as a valid foreign divorce, the motion judge dismissed the appellant’s claim for spousal support because he lacked jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce. He ordered the appellant to pay the respondent $24,266.52 in costs on a substantial indemnity basis.
[13] The other issues of child support and the division of the parties’ net family property raised in the application remain to be determined.
Legal Framework
[14] Section 22 of the Divorce Act sets out the statutory criteria for recognizing foreign divorces in Canada:
22 (1) 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.
(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, 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 the purpose of determining the marital status in Canada of any person.
(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.
[15] Subsection 22(3) of the Divorce Act allows the court to recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law: Novikova v. Lyzo, 2019 ONCA 821, 31 R.F.L. (8th) 140, at para. 14. As the motion judge noted, at common law, a foreign divorce decree is presumed valid, thus placing the onus on a party disputing its validity to establish that the divorce decree was not properly obtained. A court will decline to recognize a foreign divorce decree in limited circumstances, including the following:
i. the responding spouse did not receive notice of the divorce application;
ii. the foreign divorce is contrary to Canadian public policy;
iii. the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country;
iv. there is evidence of fraud going to the jurisdiction of the authority that granted the divorce;
v. there was a denial of natural justice by the authority that granted the divorce in making the divorce order.
See: Novikova, at para. 15; Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362, at para. 10.
[16] As I shall explain, the motion judge erred in law in his application of s. 22 of the Divorce Act and the principles underlying the enforcement of foreign divorces.
Analysis
[17] In my view, the motion judge erred by treating the registered bare talaq divorce as presumptively valid. The parties’ divorce was not “granted”, but merely authenticated by the Egyptian governmental authorities. It therefore could not be recognized under s. 22(3) of the Divorce Act in accordance with the principles of conflicts of laws and the rules of common law.
(1) The Egyptian Embassy’s registering of the bare talaq divorce did not amount to the granting of a divorce
[18] As the motion judge correctly noted, ss. 22(1) and (2) of the Divorce Act were inapplicable in this case. As a result, he focussed on whether s. 22(3) applied by operation of “any other rule of law respecting the recognition of divorces granted”. The motion judge concluded that s. 22(3) applied and recognized the parties’ divorce.
[19] In my view, the motion judge erred by failing to distinguish between the administrative registering of a divorce and the granting of a divorce. The word “granted” is used throughout s. 22, including in s. 22(3), making it clear that for a foreign divorce to be recognized by Canadian law, it must be “granted” and not merely “registered” or “recognized” by the foreign authority. Here the undisputed evidence is that the divorce occurred – according to Islamic law – upon the husband’s third pronouncement of the talaq and was merely authenticated by the Egyptian authorities; accordingly, no part of s. 22 applies.
[20] It is not controversial that bare talaq divorces, without more, have not been recognized as valid in Canada. While a bare talaq divorce that is performed in accordance with customary requirements is sufficient to establish the validity of the divorce under Islamic religious law, it does not comprehend the civil law component of adjudicative or official oversight “to address important public policy issues which can arise out of the domestic recognition of informal or religiously-based divorces”: Amin, at para. 20; Canada v. Hazimeh, 2009 FC 380, 344 F.T.R. 160, at para. 8; Butt v. Canada (Citizenship and Immigration), at paras. 24-25. Those public policy issues include the potential for abuse and lack of natural justice (including lack of notice) because of the unilateral nature of a bare talaq divorce that, as confirmed by the expert evidence in this case, is effective under Islamic law upon the husband’s third pronouncement of his intent to divorce. Despite its effect on the wife’s status and her rights to corollary relief, the wife has no participatory role and cannot stop the divorce from coming into effect.
[21] The motion judge agreed that “a bare, unilateral talaq” divorce is lacking in natural justice but found that there was no lack of natural justice here because the appellant had advance notice of its registration at the Egyptian Embassy and voluntarily participated in that process. He also found that the province of Ontario had recognized the bare talaq divorce by issuing a marriage licence to the respondent for his second marriage.
[22] Here, respectfully, the motion judge erred. Foreign law is a fact to be proved by expert evidence. While a foreign divorce decree granted by a competent authority is presumptively valid, 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 (here, the respondent): Abdulla, at para. 22. There was no expert evidence that the Egyptian governmental authorities, which authenticated the bare talaq divorce by registration, were divorce-granting authorities or that the registered bare talaq divorce was a foreign divorce decree granted by a competent authority that, under common law, was presumptively valid. Moreover, as with the Egyptian governmental registration of the bare talaq divorce, the Ontario governmental issuance of a marriage licence, following the Declaration of Divorce, did not serve to recognize the registered bare talaq divorce as a valid foreign divorce that had been granted by a divorce-granting authority, for the purposes of s. 22 of the Divorce Act.
[23] For any part of s. 22 of the Divorce Act to be engaged and a foreign divorce recognized under Canadian law, the divorce must be granted and not only administratively registered or recognized by a competent authority. Here, there was no evidence that a competent authority granted the divorce, as required under s. 22 of the Act.
[24] The respondent submits that there are good policy reasons to recognize the registered bare talaq divorce as a valid divorce. The respondent’s subsequent remarriage occurred in Ontario pursuant to a government-issued marriage licence based on the registration of the bare talaq divorce with the Egyptian governmental authorities. If marriages authorized by government-issued marriage licences were subsequently invalidated, chaos would ensue, including unintentional bigamous unions.
[25] I do not accept the respondent’s submissions. The respondent’s situation is unique and of his own making. While unfortunate for him, his personal circumstances cannot overtake the operation of s. 22(3) of the Divorce Act. The recognition under s. 22(3) of an administratively registered divorce that was not granted by a competent authority would be contrary to public policy.
(2) The parties had no real and substantial connection to Egypt at the time of the divorce
[26] For completeness, if I am incorrect that there was no divorce granted by a competent authority, I also conclude that the motion judge erred in law by recognizing the registered bare talaq divorce under common law principles. The parties did not have a real and substantial connection to Egypt at the time of the divorce, so the divorce was ineffective for Canadian purposes.
[27] Subsection 22(3) of the Divorce Act expressly upholds the common law principles that are helpfully summarized in Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111 and referred to in this court’s decision in Novikova, at para. 14. 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.
[28] The motion judge concluded that the parties had a real and substantial connection to Egypt at the time of the divorce. He determined that the test for real and substantial connection “sets a low bar” and “does not require recency”. Rather “the test merely requires that one party has participated ‘in something of significance’ in Egypt.” The motion judge found that the fact of the parties’ marriage and the respondent’s military service in Egypt constituted participation in something of significance.
[29] Respectfully, the motion judge’s formulation of the test for real and substantial connection at the time of the divorce incorrectly diluted the requirement that “[t]he connection to the foreign jurisdiction must be a substantial one”: Beals v. Saldanha, 2003 SCC 72, 234 D.L.R. (4th), at para. 32.
[30] The motion judge put too much weight on the historical connections between the parties and Egypt. While past connections to a jurisdiction may be considered, the focus of the real and substantial connection analysis should be on the parties’ real circumstances at the time of the divorce, not on historical or transitory factors. See, for example: Wilson, at para. 14; Ali v. Ibrahim, 2019 ONSC 300, at para. 47; Zeineldin v. Elshikh, 2020 ONSC 1160, 38 R.F.L. (8th) 147, at para. 21.
[31] This approach is in keeping with this court’s guidance that the location of the parties’ “real home” or “ordinary residence” is a significant presumptive connecting factor informing the real and substantial connection analysis in the context of family law proceedings and marriage breakdown: Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, at paras. 46-47; Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 27, leave to appeal refused, [2014] S.C.C.A. No. 161; Li v. Li, 2021 ONCA 669, 159 O.R. (3d) 216, at para. 36, leave to appeal refused, [2021] S.C.C.A. No. 431.
[32] As the motion judge noted, neither party was domiciled in Egypt at the time of the pronouncement or the subsequent registration of the bare talaq divorce. Indeed, neither party had lived in Egypt for many years. The fact that the parties decades ago had substantial connections to Egypt is not sufficient to rebut the unchallenged and overwhelming evidence that at the time of the divorce, the parties had no real and substantial connection to Egypt. Both parties have set down deep roots in Ontario: they work, reside, had and raised their children, and maintained their matrimonial home here. The motion judge erred in finding that the appellant maintained any recent substantial connection with Egypt: there was no evidence that she had a bank account in Egypt; and her mother, whose opinion she primarily cares about regarding her divorced status, lives in Ontario, as did her deceased father.
[33] The motion judge’s application of the test for real and substantial connection undermines its policy underpinnings. The test seeks to exclude artificial bases of jurisdiction and prevent forum shopping: Orabi v. Qaoud, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 15; L.G.V. v. L.AP., 2016 NBCA 23, 449 N.B.R. (2d) 140, at para. 15. Here, notwithstanding the parties’ residence in Ontario, the respondent engaged the summary registration process of the Egyptian governmental authorities instead of commencing proceedings in Ontario, as the respondent himself had done after the first separation.
[34] It was open to the motion judge to find that the respondent’s choice of the Egyptian registration process did not give rise to duress as alleged by the appellant. However, because he misapplied the real and substantial connection test, he did not step back and consider, as he should have done, whether the respondent’s choice amounted to impermissible forum shopping. In my view, it did.
[35] The respondent’s choice must be viewed along with the clear connection between the parties and Ontario and the lack of any real and substantial connection with Egypt. So, too, must the respondent’s explanation that he wanted to expedite divorce proceedings, especially in the absence of any evidence that the appellant objected to a divorce. There was delay of over a year following the respondent’s third pronouncement of the bare talaq divorce in December 2016 and the registration of the divorce in January 2018. The respondent could have obtained a divorce much sooner on a motion for summary judgment within proceedings that also dealt with support and property issues. As the present proceedings stand, child support and property issues remain to be determined, so delay is not the real issue. One reasonable conclusion flowing from these facts is that the respondent wished to avoid spousal support obligations.
[36] Accordingly, in addition to failing to distinguish between recognizing and granting a divorce, the motion judge erred in finding that the parties had a real and substantial connection to Egypt at the time of the divorce that would be necessary to give substantive effect to it in Ontario.
Disposition
[37] For these reasons, I would allow the appeal and set aside the motion judge’s judgment and costs order.
[38] The appellant’s application for relief, including her claim for spousal support, is to proceed. The parties should return for a case management conference before the Superior Court to deal with next steps, including but not limited to whether the respondent should be granted leave to amend his Answer to claim a divorce.
Released: December 15, 2022 “PDL”
“L.B. Roberts J.A.”
“I agree P. Lauwers J.A.”
“I agree Gary Trotter J.A.”
