Kadri v. Kadri, 2015 ONSC 321

COURT FILE NO.: FC-13-2037

DATE: 2015/01/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KHOUZAMA KADRI

Applicant

– and –

ALI JAMAL KADRI

Respondent

Self-Represented

Pacifique Siryuyumusi, for the Respondent

HEARD: October 16-17, 2014 (at Ottawa)

REASONS FOR JUDGMENT

Kane J.

[1] The applicant commenced this application under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am. and the Family Law Act, R.S.O. 1990, c. C.43, in November, 2013. She claims a divorce, spousal support, child support for three adult children, division of assets as well as ownership and exclusive possession of the condominium in Ottawa.

[2] The applicant brought an urgent motion in February, 2014, for spousal support, exclusive possession and transfer to her of title of the Ottawa condominium. Interim spousal support and transfer of the condominium were ordered by Backhouse J.

[3] Parfett J. subsequently stayed interim spousal support pending argument of the jurisdictional issues and the validity of a divorce from Lebanon.

[4] The respondent by cross-motion seeks an order that the divorce of the parties from Lebanon be recognized by this court, that he has no financial obligations to support the applicant and an order that the applicant be required to vacate his condominium in Ottawa.

[5] The respondent alleges that his marriage to the applicant was: (a) first annulled on October 12, 2008; and (b) terminated by divorce of the marriage granted on March 2, 2009, by Islamic Sunni Court of Bekaa in Lebanon.

[6] The nature and validity of the Lebanese divorce was argued on motion in May, 2014. This court determined that expert evidence was required as to the law of marriage and divorce in Lebanon. This court granted an interim order dated May 7, 2014, and directed this hearing for the introduction of such expert evidence and full argument of the issues.

[7] The hearing herein occurred on October 16 and 17, 2014, pursuant to the above order dated May 7, 2014. During this hearing, the applicant and one adult daughter of the parties testified. The court also received testimony on behalf of each party from several lawyers qualified to practice in Lebanon who provided opinion evidence as to the laws of marriage and divorce in Lebanon as well as one Ottawa real estate agent.

[8] The issues requiring determination are:

(a) whether a divorce of the parties in Lebanon should be recognized as a valid divorce by this court;

(b) whether the parties according to Sharia law, reconciled during the three month and ten day waiting period following Lebanese divorce thereby terminating the divorce under Sharia law as a result of which the parties remained married;

(c) whether a Declaration signed by the applicant should be set aside;

(d) whether the applicant is entitled to spousal and child support and the amount thereof;

(e) whether the applicant is entitled to a divorce from this court; and

(f) the applicant’s rights to the Ottawa condominium occupied by her and registered in the name of the respondent.

BACKGROUND

[9] The parties are Sunni Muslims. They married one another in Lebanon in 1988.

[10] The parties have two adult daughters and one adult son, aged 24, 21 and 20 respectively. The 21 and 20-year-old each live with another person, away from home and are financially independent. The 24-year-old daughter currently lives with her mother, is about to graduate with a Master level degree and, according to the mother, will be moving out on her own within one month.

[11] The parties since marriage in 1988 have lived in numerous countries. They lived in Canada between 1989 and 1992, during which time the respondent pursued his education. They lived in England between 1992 and 1994 where the respondent completed his doctorate in economics. They lived in France between 1994 and 2002 where the respondent worked as an economist with the United Nation. The parties lived in Beirut, Lebanon between 2002 until 2010 where the respondent continued employment with the United Nations until termination of that employment in early 2010.

[12] The applicant moved to Canada in August, 2010, while the respondent remained living in Lebanon.

[13] The respondent was born in Lebanon but spent a number of his early years in Brazil. The respondent currently resides in Singapore and teaches at the University of Singapore. He remarried in November, 2012, and has a new child of that union. He holds citizenship in Brazil, Lebanon and Canada.

[14] The applicant was born in Syria and later moved to Lebanon. She is a graduate Engineer from Lebanon and was so employed before her marriage to the respondent. She states she has not worked outside of the home since marriage due to the numerous locations they have lived in since marriage to complete the respondent’s education and pursuant to his employment.

[15] In this application, the applicant states that she has mental health issues related to stress.

[16] Upon the applicant’s departure to Canada in August, 2010, the respondent initially remained in Lebanon until he obtained employment and moved to London, England, where he remained until moving to Singapore in 2011.

[17] The application commencing this action issued in August, 2013, makes no reference to any prior divorce declaration or proceeding in Lebanon. It states that the parties separated on June 28, 2013, and have been living separate and apart since August, 2012. There is no reference to any prior period of separation or resumption of cohabitation after any such prior separation. The application declares that the parties have not been in a court case before and there is no written agreement between them dealing with any matter at issue.

[18] The above allegations are untrue.

[19] In her affidavit dated April 4, 2014, the applicant states that she learned of her husband’s adultery with their maid on July 31, 2008. She states that on October 12, 2008, she went to the Sharia court in Lebanon and requested a divorce. She alleges the judge asked the respondent to attend court and was told the respondent would have his lawyer attend. The applicant states no divorce was then obtained. The evidence indicates that the respondent obtained an annulment of this marriage as of the same date the applicant requested a divorce as above stated, namely effective October 12, 2008.

[20] It is common ground that the applicant confronted the respondent with his adultery and he thereupon moved out and did not reside in the family home for at least the ensuing eight or nine months. Their daughter’s testimony confirms this fact.

[21] The applicant in her affidavit alleges that the respondent, without notifying her, obtained a divorce in Lebanon on March 3, 2009. She states that she was unaware of this alleged divorce until 2013. This allegation is untrue. The equivalent of an affidavit of service from the Court of Bekaa indicates that the applicant was served on June 3, 2009, with the divorce decision dated March 2, 2009. The applicant had 15 days to object or appeal that decision whether as to the divorce or in relation to ancillary relief. The applicant either did not appeal the divorce decision or was unsuccessful in doing so.

[22] Mr. Ayoud testified that Sunni Muslims in Lebanon may obtain a divorce from the religious court in Lebanon in five ways, namely by:

(1) Joint agreement by the parties following which the “Osma” holder divorces the other party;

(2) Unilateral decision by the husband (the “taliq”) who holds the Osma and bears the financial obligations flowing from the marriage;

(3) Unilateral decision by the wife who is the Osma holder under their marriage contract;

(4) Application by the wife on the ground of ill treatment; and

(5) At the request of the wife even absent ill treatment.

[23] The respondent states in his affidavit that he gave the applicant the divorce because, as between them, he held the Osma, namely the right to obtain a divorce.

[24] The respondent in his affidavit states that the Legal Islamic Sunni Court of Bekaa, at his request, annulled the marriage on October 12, 2008. The Divorce Certificate from the Vital Statistics and Civil Status General Department of the Republic of Lebanon states that the Legal Islamic Sunni Court of Bekaa granted a License of Divorce on March 2, 2009, and that the Court decided upon the annulment of marriage between these parties on October 12, 2008, or at least as effective as of that date.

[25] The applicant acknowledges in her affidavit that the respondent obtained a religious divorce in March, 2009. The daughter of the parties testified her mother told her that the lawyer of the respondent advised her of their divorce in March or April, 2009.

[26] The applicant states that one month after this religious divorce, the respondent’s brother advised her that his family wished the applicant to reconcile with the respondent. This couple’s daughter filed an affidavit indicating that the applicant met with the respondent’s family to discuss possible reconciliation. The respondent’s brother filed an affidavit denying any such meeting and denying he had any such conversation with the applicant.

[27] The respondent gave money to the applicant to purchase a new bedroom set which she purchased on April 16, 2009. The applicant relies upon this as evidence of this couple’s reconciliation. She alleges that the respondent then returned to the matrimonial home where they lived together as husband and wife for one month. She states that she advised a judge in Lebanon in April, 2009, that she and the respondent had reconciled and was told that reconciliation within 100 days of the divorce would void the prior divorce.

[28] The daughter of the parties testified her mother set up a new bedroom set in their home in 2009. She testified that her father for a short period thereafter slept in a hotel beside their home but that on occasion, her father slept alone in the refurbished bedroom.

[29] The Court of Bekaa on June 25, 2014, certified its receipt of evidence from a bailiff on June 3, 2009, that the above license of Divorce had been served upon the applicant, including notice that the applicant had 15 days from the date thereof to appeal that decision.

[30] Mr. Ayoud testified that the spouse announcing the divorce to his partner may apply for confirmation of the divorce to a Religious Court immediately or wait to do so. There is a waiting period of three months and ten days he states to permit reconsideration and reconciliation. The spouse announcing the divorce may wait that period or longer before applying to a Religious Court for legal recognition of the divorce.

[31] Mr. Ayoud also testified that the wife may object to the judgment of divorce granted by the Religious Court in her absence pursuant to article 201 of the S-J Org. Law and has 15 days to do so from the date the divorce judgment is served on her. If the wife objects, a hearing will then be held before a judge of the Religious Court to hear and determine the wife’s objections to the divorce judgment or the terms thereof. If the wife fails to object after being served with the divorce judgment, the Religious Court will thereupon finalize its original divorce judgment, normally following the ‘iddat’ period of three months and ten days, to permit possible reconciliation or in case the wife learns of her pregnancy. Should the couple reconcile during the ‘iddat’ period, their marriage resumes and the couple must then re-attend in court to invalidate the divorce judgment. Absent reconciliation, the Religious Court will render its divorce judgment retroactive to the date of the religious divorce.

[32] It appears therefore that between March 3 and June 3, 2009, the applicant either failed to appeal the divorce granted by the Religious Court or was unsuccessful in attempting to do so based on her allegation that the parties had resumed cohabitation for one month.

[33] The applicant testified that the respondent came to Ottawa three times in 2011. She said that he came in January, 2011, for two weeks and told her he wanted to buy a house for her and the children and accordingly met with a real estate agent. She testified he returned for two weeks in March or April and then came back in order to close the real estate purchase of the condominium. She said they had sexual relations during these visits. The respondent denies the parties had any sexual relations during these visits. The daughter testified that her father slept in the son’s bedroom during the first visit and she could not recall where he slept on the two subsequent visits.

[34] The lawyer retained on the purchase of the condominium disagrees with the applicant’s assertion that he understood or showed the parties as married to one another on the condominium purchase.

[35] The applicant and the children returned for a visit of two months to Lebanon in the summer of 2012. The respondent rented an apartment for the applicant and the children during this visit. The respondent came from Singapore back to Lebanon for one of those two months. The testimony of the daughter and the applicant establishes that the parties were not cohabiting during this visit and that the respondent during this visit resided at a house he owned in the mountains during his 2012 visit to Lebanon and came to the rented apartment to visit. The daughter testified that her parents did not share a bedroom during this 2012 visit and that they fought frequently with her mother avoiding the respondent.

[36] The applicant testified that she and the respondent had sexual relations during this 2012 summer holiday in Lebanon. The applicant however in an email dated June 23, 2012, asks the respondent for the address of the apartment he had rented in Beruit for the family’s 2012 summer visit. She states that she will sleep for one day and then leave. She states she will never come back with him and she will not sleep in a house that he is in.

[37] The applicant in her July 10, 2014, affidavit produced her email of December 1, 2013, to her then Ottawa lawyer. It includes her following statement:

As I told you earlier that 7-31-2008 and found my husband’s relationship with the maid. So I went to the Court of Islamic Sharia Sunni ask for divorce. Initially refused and threatened him with what the judge has agreed to divorce But he sent his lawyer Mahmoud Qadri to complete the divorce on 2-3-2009. ... Leave home and left me with my children without the expense. This compelled me to sell my jewelry, including nearly $8,000. And then returned to the judge ask him to pay alimony and the backside for me and my children. He gave me $13,000 in 18-9-2009. He asked me to sign a paper promising that I did not ask him any expenses. A court inside and outside Lebanon, I accepted because I did not own a never expenses. One year after he returned home to the beginning of 2010, and reconciled and ended everything. 15-8-2010 I left with my children to Canada.

[38] This version of events is quite different from the applicant’s testimony. In the above version:

(a) The applicant was not adverse or unfamiliar with accessing the Religious Courts in Lebanon for a divorce or support;

(b) The applicant went to court and asked for a divorce after learning in July, 2008 about the respondent’s adultery with the maid;

(c) The divorce she originally sought was not granted but was completed by her then husband’s lawyer on March 2, 2009;

(d) She states that the respondent then moved out of the house and failed to pay support forcing her to sell her jewelry and to return to court to force the respondent to pay alimony. This she stated to her lawyer resulted in the respondent paying her $13,000 in consideration for her execution of a release that she would seek no more support and would make no claim in any court against him. This is clear reference to the Declarations she signed before the Notary in Lebanon on September 18, 2009; and

(e) She states the respondent returned home and they reconciled one year later, or in the beginning of 2010.

[39] The applicant’s testimony however was that she and her husband reconciled in April, 2009, not in early 2010. The above statement to her lawyer was that she went to court for a divorce sometime in August, 2008 and that the respondent then went to court again in March of 2009. In fact, the respondent went to court after the applicant in August, 2008. The email has the applicant returning to court for alimony in 2009 and her execution of the Declaration in September, 2009 and the alleged reconciliation in early 2010.

[40] The applicant signed a Declaration and Undertaking dated September 18, 2009, (the “Declaration”) before a Notary Public which states that:

(a) the applicant received $13,000 as the “remaining amount with my divorced husband as marital rights”;

(b) “my divorced husband does not owe me any amount”;

(c) she “irrevocably discharge him of any right or claim in this request declaring the receipt of all my rights”;

(d) she undertakes “not to file any claim or litigation against him before all competent courts inside or outside Lebanon”; and

(e) the Declaration is “final and irrevocable”.

[41] The applicant testified that she signed the Declaration and received the $13,000 in order to repay her brother who had advanced her $8,000 during the respondent’s nine month stay in the hotel following their August, 2008, separation because she had no other means of support. She testified the husband increased the $8,000 to $10,000 and then gave her another $3,000 to pay for a new maid.

[42] The applicant’s testimony regarding this Declaration in which she acknowledges the parties are, as of September 18, 2009, divorced, was unclear. The applicant states that she has no recollection of signing the Declaration. She stated her husband told her he would give her the money but she would have to sign a receipt at the office of his lawyer. She testified that she went to the lawyer’s office and signed a receipt acknowledging payment of the $13,000. She stated there may have been other documents presented at the same time which she saw but did not read and those may have included the Declaration or, she suggests, perhaps the Notary later added the terms of release to the Declaration she signed.

[43] In relation to the applicant’s position that she does not recall signing the Declaration, her email to the respondent dated April 21, 2014, demands that his new wife relinquish all inheritance rights to the applicant in a written declaration “similar to the declaration that Mohamoud wrote and I signed at the notary.” The applicant’s allegation now that she does not recall signing the Declaration on September 18, 2009, and their then divorced status, is not credible.

[44] The respondent alleges that the applicant following their divorce was incurring liabilities in his name, including cosmetic plastic surgery. He alleges that he wanted to stop the applicant from pledging his credit and therefore instructed his lawyer to prepare the Declaration which was signed on September 18, 2009, in order to avoid further liability.

[45] In contradiction of her above explanation why $13,000 was paid to her, the applicant in her September 29, 2014, affidavit states that the $13,000 was paid for the cost of her plastic surgery. The bills from the plastic surgeon are dated in November, 2008, May, 2009, and February, 2010. This corroborates the above evidence by the respondent regarding the signing of the Declaration.

[46] This September 18, 2009, Declaration also contradicts the alleged April, 2009 “bedroom set – reconciliation” and the applicant’s testimony that she and the respondent resided together thereafter until she left for Canada in August, 2010.

[47] The September 18, 2009, date of the Declaration is also beyond the 100 day reconsideration period, whether calculated from October 18, 2008, or June 3, 2009. The expert evidence is that after this 100 day reconsideration period, the divorce is final and any reconciliation requires the parties to enter into a new marriage contract including the payment of a new dowry, of which there is no such evidence.

[48] The applicant alleges she learned on June 20, 2013, that the respondent and his new wife had had a child which resulted in the June 28, 2013 separation between the parties. The applicant had her lawyer in Lebanon check and was advised that the Familial Extract of Vital Statistics recorded the respondent married to the applicant and his new wife. The respondent within days registered the earlier divorce thereby resulting in an amendment to the above extract. According to the evidence, late or non-registration can result in a fine but does not invalidate the court decision evidencing the divorce of the parties.

[49] The applicant states that her lawyer in Lebanon advised her in 2013 that she could contest the prior divorce and request the Sharia Court to set it aside. There is no evidence the applicant brought such an application in Lebanon.

[50] The applicant in fact had learned about the respondent’s new partner by mid-2012. The applicant was upset with this news but soon adjusted to it. The daughter of the parties testified that her father pleaded with the applicant during this July/August, 2012 family vacation in Lebanon, that her mother accept his new relationship with another woman.

[51] The applicant in her email dated September 17, 2012, apologizes to the respondent for what she had said to him and his partner, Linda Mattar. The applicant states that she was surprised by the news and that the respondent should have told her about it “so she would know how to deal with it”. The applicant states that Linda will be better than her with the kids who are going to love Linda and then states: “Anyway congratulations and hope the kids are going to love her. The best thing you can do is to take them over to your place”. She states the respondent should take their son on New Year and the girls at the end of the school year. She states that she has spoken with Mostapha (Ottawa real estate agent) and “we are going to sell the house, he said by the beginning of the year will put it on sale. I will try to find a job in France.”

[52] There is no hint by the applicant in this September, 17, 2012 email, that she and the respondent remained married, which she now testifies remained their status. The current allegation of the applicant that she and the respondent were married to one another in September, 2012, was not her position as of the date of this email on September 17, 2012. The respondent’s upcoming marriage, or their then relationship, had been reconciled in the mind of the applicant by the time she sent this email.

[53] The respondent states that he and Linda Mattar were married on November 22, 2012, some two months after the above email. This new union between the respondent and Ms. Mattar, or their upcoming marriage in November, 2012, was not an issue in the applicant’s mind and did not result in the commencement of this Ontario action in August, 2013. The issue for the applicant only arose some nine months later, in June, 2013.

[54] The daughters of the parties traveled and visited with their father in Singapore in May, 2013. Upon their arrival in Singapore, their father introduced them to his new wife who was then expecting their first child. This pregnancy surprised the daughters who reported it to their mother.

[55] News that the respondent’s wife was expecting a child caused extreme turmoil to the applicant. Within two or three weeks of receiving this news, the applicant retained legal counsel who wrote to the respondent about his November, 2012 marriage to Ms. Mattar and the upcoming birth of their child. The applicant through counsel alleged that the parties remained married to one another, thereby constituting polygamy in Canada. This communication included the applicant’s request for ongoing support for herself and the children.

[56] In an email to the respondent dated June 15, 2013, the applicant states that the inheritance is gone, everything is lost, she has no house and no dignity. She directs that the respondent’s spouse should go and get an abortion right away.

[57] In an email dated June 16, 2013, the applicant pleads with the respondent to not leave her and to “put me back on your name, your name only is sufficient for me”.

[58] The applicant in an email dated June 25, 2013, states that the respondent’s new wife must sign a renouncement of any interest in the respondent’s estate in favor of the children of the parties.

[59] In an email dated June 25, 2013, to the respondent, the applicant states that his new partner must renounce her share and their son’s share of any inheritance in the respondent’s estate in favor of the parties’ children. The applicant states that if the respondent’s new wife grants this renouncement, I need nothing from you anymore.

[60] Unlike her September, 2012 email referring to the benefits to the children from the respondent’s new partner, the point of contention in June, 2013, was one of inheritance due to the birth of this new child, not the current allegation that the parties in 2012 and 2013 remained married and not separated from one another.

[61] The evidence is clear that a Bekaa Spiritual Judge, of the Bekaa Sunni Spiritual Court, number 48, granted a certificate of divorce of the parties on March 2, 2009, effective October 12, 2008. Such decree of divorce is silent as to custody, access and financial support.

[62] The experts called by the parties are in agreement that the Bekaa Sunni Spiritual Court had jurisdiction regarding the marital status and a divorce of the parties, including alimony or support.

[63] The evidence is clear that the above certificate of divorce was recorded with Familial Extract of Vital Statistics at the beginning of July, 2013.

[64] A Sunni Religious Judge of the Bar Elias Court of Bekaa signed an attestation on November 26, 2013, stating that the divorce between the parties occurred on March 2, 2009, was irrevocable and prevented the applicant returning to the respondent unless by new marriage contract and dowry.

[65] A certificate number 451/2014, dated August 20, 2014, by the Religious Judge Abdel Rahman Charkiah, Head of the Bureau of the Sunni Religious Court of Bekaa was filed in response to the respondent’s statement to that court that he had not remarried the applicant. That Religious Judge certified that:

(a) Religious Courts in Lebanon are the only competent authority in Lebanon for marriage and divorce among Muslims such as the parties under Lebanese law;

(b) The divorce Order 48 dated October 12, 2008, is definitive;

(c) The applicant’s Declaration dated September 18, 2009, states that she has received all her matrimonial rights, namely $13,000 U.S. and thereby releases any right demand or process related to her matrimonial rights and undertakes to not prosecute the respondent before any court or authority in Lebanon or abroad; and

(d) When a divorce occurs between a husband and wife, they do not return back to matrimonial life unless they both consent and enter into a new marriage contract involving a new dowry before the competent Lebanese court.

[66] The evidence establishes that since the applicant moved with the children to Canada in 2010, the respondent has paid monthly some $2,500 plus additional costs as incurred. He considered these payments to be for the support of his children.

[67] Such monthly support payments were automatically deposited into the applicant’s bank account until January, 2014, and thereafter into one of the daughter’s bank account.

[68] The respondent in addition paid the purchase cost of the condominium in Ottawa including the operating cost thereof, where the applicant lived with the children.

[69] The respondent states his three children have graduated from university without student debt while the applicant has remained unemployed.

[70] The applicant relies upon income tax documents she alleges the respondent requested that she file with Revenue Canada since 2010 which refer to the parties as being married. The respondent denies those documents and alleges that the applicant has forged his signature.

Validity of Foreign Divorce

[71] Section 22 of the Divorce Act, contains the following relevant provisions regarding the recognition of foreign divorces:

22. (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.

(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.

(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.

[72] On the basis of Okmyansky v. Okmyansky (2007), 2007 ONCA 427, 86 O.R. (3d) 587 (C.A.) paras. 15 and 26, regarding the Divorce Act held that:

(a) Ontario courts do not have jurisdiction to hear or determine a corollary relief proceeding following a valid divorce in a foreign jurisdiction.

(b) Parliament did not intend to give Canadian courts’ jurisdiction over foreign divorces. Parliament’s jurisdiction over support is ancillary to its jurisdiction over divorce pursuant to s. 91 of the Constitution Act, 1867.

[73] Support obligations under the Family Law Act does not extend to or apply to former spouses, now divorced: M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3 (S.C.C.) at para. 50; Abernethy v. Peacock, 2009 CarswellOnt 2801 (Ont. S.C.J.) paras. 9 and 10; and Jahangiri-Mavaneh v. Taheri-Zengekani (2003), 66 O.R. (3d) 271 (Ont. S.C.J.), reversed on other grounds in 2005 17771 (ON CA), [2005] O.J. No. 2055.

[74] Section 22 of the Divorce Act provides three different bases for recognizing a foreign divorce:

(a) Subsection (1) affords recognition where either spouse was “ordinarily resident” in that jurisdiction for at least one year prior to the commencement of the divorce proceedings;

(b) Subsection (2) continues s. 6(1) of the 1968 Divorce Act by recognizing foreign divorces obtained after July I, 1968 based on the wife’s domicile in the foreign jurisdiction; and

(c) Subsection (3) preserves the common law rules regarding the recognition of divorce.

[75] Under subsection 22(1), an individual will be ordinarily resident in a foreign jurisdiction if that jurisdiction is where that individual regularly, normally, or customarily lives. It is a question of fact, not dependent on citizenship, domicile or immigration status: Thomson v. Canada (Minister of National Revenue - M.N.R.), 1946 1 (SCC), [1946] S.C.R. 209; and MacPherson v. MacPherson (1976), 1976 854 (ON CA), 13 O.R. (2d) 233 (Ont. C.A.)

[76] Under this first basis, these parties were ordinarily resident in Lebanon where the respondent was employed from 2002 until 2010 when the applicant and children moved to Canada in August of that year. The applicant and respondent were each ordinarily resident in Lebanon one year prior to the October 12, 2008, annulment of the marriage, the March 2, 2009 License of Divorce and the service of the divorce decree on the applicant as confirmed as of June 3, 2012, by the Religious Court in Bekaa.

[77] Under subsection 22(2), domicile pursuant to the common law, requires proof of residence and intention: Jablonowski v. Jablonowski, 1972 581 (Ont. S.C.J.).

[78] On the facts in this case, the two above basis are established.

[79] In the alternative, a divorce can be recognized where, although granted on a non-domiciliary jurisdictional basis, it is recognized by the law of the foreign domicile.

[80] The Legal Islamic Sunni Court of Bekaa, provided Mr. Kadri with a divorce, pursuant to articles 17 and 67 of the Sunni and Jaafari Sharia Judicial Organization law. Judges of that court have repeatedly now confirmed in writing that court’s issuance of a License of Divorce and the divorced status of these parties. It is clear that in the opinion of Sunni Religious Court, that court had jurisdiction and determined that the parties were divorced as recorded in the several certificates to that effect from that court.

[81] Only in very rare circumstances will a foreign divorce properly obtained pursuant to the laws of another jurisdiction, not be recognized by Canadian courts: Martinez v. Basail, 2010 ONSC 2038.

[82] The procedure as initiated by the respondent in Lebanon did not initially involve the applicant’s participation. It did by notice to her however, provide the applicant with the opportunity to respond and oppose the divorce on the basis of the grounds now alleged and seek alimony. This opportunity is of fundamental importance. This divorce petition by the respondent was also subsequent to the unsuccessful petition for divorce by the applicant.

[83] Even if the foreign divorce is found to be valid, there are defences against the recognition of foreign judgments on the grounds of fraud, natural justice, or public policy: Beals v. Saldanha, 2003 SCC 72, para. 39.

[84] Canadian Courts generally are hesitant to allow a challenge to the validity of a foreign divorce outside of the foreign jurisdiction: Domise v. Oyadiran, 2006 2614, para. 7. Canadian courts however are willing to intervene where there are serious concerns as to fraud and procedure such as not granting an opportunity to defend the proceeding.

[85] There are numerous immigration decisions of the Federal Court expressing concern about Talag divorces, but particularly where the procedure consists only of a unilateral announcement of divorce by one party, usually the male, communicated to his then wife and not involving review or participation by a court of competent jurisdiction. The expert testimony in the present case all agree that the Sunni Religious Court and not the civil courts in Lebanon, had exclusive legal jurisdiction regarding divorce of these parties. The applicant, albeit only in response, had an opportunity to respond and defend the grant of divorce.

[86] The applicant applied she testified for a divorce, for alimony and placed her allegation of reconciliation before this court in Lebanon.

[87] The evidence in this hearing is contradictory as to whether reconciliation occurred in April, 2009 which is the basis of the applicant’s allegation of fraud. Given the number of inconsistencies by the applicant as to the facts in this case, this court is skeptical as to a number of her allegations, including this allegation of reconciliation which the applicant alleges she placed before the Religious Court in Lebanon.

[88] On balance, this court concludes that the legal divorce of the parties granted in Lebanon by the Sunni Religious Court of Bekaa in March, 2009, is a valid foreign divorce. No valid defence has been established as to why that decision should not be recognized by this court.

[89] This court accordingly lacks jurisdiction to grant the applicant corollary relief under the Divorce Act or the Family Law Act. The application accordingly is dismissed. Interim support previously ordered which cease effective January 31, 2015.

[90] There is no cross-application by the respondent as he disputed the jurisdiction of this court. This court’s lack of jurisdiction on the application accordingly results in the dismissal of the cross-motion by the respondent for possession based on his ownership of the Ottawa condominium.

[91] The applicant’s request for possession and ownership of the Ottawa condominium may be pursued by her alone, or with the children, by separate action based on other legal principles or causes of action.

[92] As to costs, without the benefit of submissions and not knowing what offers if any were exchanged, the court reminds the parties that success herein has been divided and the applicant is of limited financial means. Without prejudice to the issue as to costs, these factors normally point towards each party being responsible for their own costs.

[93] If to be pursued; any party seeking costs shall submit brief written submissions within 30 days from the date hereof. Any reply thereto shall be submitted within 20 days thereafter.

Kane J.

Released: January 15, 2015

CITATION: Kadri v. Kadri, 2015 ONSC 321

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KHOUZAMA KADRI

Applicant

– and –

ALI JAMAL KADRI

Respondent

REASONS FOR JUDGMENT

Kane J.

Released: January 15, 2015