Al Sabki v. Al Jajeh
Ontario Reports
Ontario Superior Court of Justice
Audet J.
November 5, 2019
148 O.R. (3d) 741 | 2019 ONSC 6394
Case Summary
Conflict of laws — Jurisdiction — Family law — Parties married in Syria — Husband residing in Singapore while wife residing in Canada — Husband obtaining divorce from Syrian court — Husband claiming that Syrian divorce prevented wife's claim for spousal support — Syrian divorce meeting none of the grounds under the Divorce Act to be recognized as valid by Canadian court — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
Family law — Divorce — Foreign divorce — Parties married in Syria — Husband residing in Singapore while wife residing in Canada — Husband obtaining divorce from Syrian court — Husband claiming that Syrian divorce prevented wife's claim for spousal support — Syrian divorce meeting none of the grounds under the Divorce Act to be recognized as valid by Canadian court — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
The parties were born, raised, educated and married in Syria. They lived in Canada for about four years before moving to the United Arab Emirates in 1999. In 2006, the husband moved to Singapore while the wife returned to Canada with their two children. In 2007, the husband informed the wife that he wanted to separate, and in 2008 he told her of his intention to divorce her through the Syrian courts. He obtained a Syrian decree of divorce in 2008 and sent it to the wife. He then remarried. When the wife applied in Ontario for spousal support under the Divorce Act, the husband opposed the application on the basis that there was no jurisdiction to order support because of the parties' divorce. A focused hearing was held to determine whether the Syrian divorce should be recognized in Canada.
Held, the recognition of the Syrian divorce should be denied.
The wife's application for spousal support was permitted to proceed. None of the grounds upon which foreign divorce orders may be recognized in Canada under the Divorce Act had been established. Neither party had his or her domicile in Syria when the husband initiated the divorce proceeding. There was no evidence led as to applicable legal principles for obtaining a divorce in the husband's domicile of Singapore. The wife's domicile of Canada required that at least one of the parties reside in the foreign jurisdiction for a year before commencement of divorce proceedings. The Syrian jurisdictional rules did not correspond to Canadian jurisdictional rules. The fact that the parties' extended families continued to reside in Syria while the parties themselves had no active involvement there for 20 years was not sufficient to establish either of the parties as having a real and substantial connection with Syria. The wife was found to have taken no steps to object to the Syrian divorce proceeding based on her understanding that such a divorce would not be valid in Canada.
Even if jurisdiction had been established, the divorce would not have been recognized in any event because the process followed by the Syrian court denied natural justice to the wife by preventing her from contesting the granting of the divorce. [page742]
Beals v. Saldanha, [2003] 3 S.C.R. 416, [2003] S.C.J. No. 77, 2003 SCC 72, consd
Orabi v. El Qaoud, [2005] N.S.J. No. 76, 2005 NSCA 28, 12 R.F.L. (6th) 296, apld
Cases referred to
Kadri v. Kadri, [2015] O.J. No. 170, 2015 ONSC 321, 248 A.C.W.S. (3d) 323, 59 R.F.L (7th) 187 (S.C.J.); Martinez v. Basail, [2010] O.J. No. 1432, 2010 ONSC 2038, 86 R.F.L. (6th) 210, 187 A.C.W.S. (3d) 773 (S.C.J.); Novikova v. Lyzo, [2019] O.J. No. 5246, 2019 ONCA 821; Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218, [1976] S.C.J. No. 66; Wilson v. Kovalev, [2016] O.J. No. 103, 2016 ONSC 163, 262 A.C.W.S. (3d) 349, 72 R.F.L. (7th) 362 (S.C.J.); Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 37 Alta. L.R. (5th) 115, [2011] 4 W.W.R. 556, 92 R.F.L. (6th) 138, 500 A.R. 357, 190 A.C.W.S. (3d) 1065
Statutes referred to
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 22, (1), (2), (3)
Authorities referred to
Payne, Julien D., Payne on Divorce, 4th ed. (Scarborough, Ont.: Carswell, 1996)
HEARING to determine whether a foreign divorce should be recognized in Canada.
Anca Dumitrescu Jelea, for applicant.
Erin Lepine/Natasha Chettiar, for respondent.
AUDET j.: --
[1] The issue raised in this focused hearing is whether a divorce granted in Syria in 2008 should be recognized in Canada.
[2] The applicant wife brought an application before the Ontario court in 2017 seeking spousal support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended (the "Act"). The husband opposed the application on the basis that the court does not have jurisdiction to make a spousal support order under the Act because the parties were validly divorced in Syria in 2008. The wife takes the position that the divorce granted by the Syrian authorities is invalid and should not be recognized in Canada.
[3] I conclude that Syria did not have jurisdiction to grant a divorce between these parties in 2008 and, as a result, I refuse to recognize the Syrian divorce as determinative of the parties' marital status in Canada. Even if I was wrong on the issue of jurisdiction, I would have denied recognition of the divorce in Canada on the ground that the wife was denied natural justice in the Syrian divorce process. [page743]
Factual Background
[4] The parties, who both grew up in Syria, are of the Muslim faith. They met while they were both practicing medicine in the same hospital in Syria and married on June 21, 1988 in Damascus. The parties have two sons: Karam, who was born in Syria in 1988; and Basem, who was born in Kuwait in 1992. Both children are now adults and financially independent. The wife practiced medicine from 1984 to 1989, and thereafter took on the role of primary caregiver for the children and homemaker. She never practiced medicine again after 1989.
[5] In 1989, the parties moved to Kuwait where the husband had obtained employment as a physician. The parties remained in Kuwait until 1995 (except for a brief period during the Gulf War), and then immigrated to Canada with their children. During the four years that followed, the father was unable to complete the exams which would have allowed him to practice medicine in Canada. As a result, in 1999 the family moved to Abu Dhabi, in the United Arab Emirates, where the husband resumed his medical practice. In January 2006, the husband accepted a position as a physician at the Singapore General Hospital. The wife was not prepared to move to Singapore, and it was agreed that she and the children would return to Canada. The wife and the children, who were 16 and 12 at the time, arrived in Canada on or about January 2006.
[6] Although he had promised to visit the family in Canada regularly, shortly after he moved to Singapore the husband advised that he would not visit the family again in Canada. At some point in 2007, he informed the wife through his son that he wanted to separate. In an e-mail sent by the husband to Karam in 2007, he wrote "Mother will continue to be my wife, in legal terms, as long as she chooses so. You and Basem will be our dear children. I will continue to support you, Basem, and Mother as long as I live."
[7] Despite his promise, in March 2008 the husband informed the wife that he intended to divorce her through the Syrian courts. The wife stated that this left her shocked and speechless, and her attempts to have him change his mind were not successful.
[8] At some point in December 2008 or in 2009 (the exact date is in dispute), the husband provided the wife with a copy of the Syrian decree of divorce issued by the Syrian authorities on November 18, 2008. Pursuant to that document, the husband imposed upon himself the obligation to pay the wife "30 Syrian pounds -- about one Canadian dollar -- a day as alimony for a period of three months" and "undertook to increase the alimony". The divorce [page744] decree further states that the husband "prays this Court to issue a summons to be served upon the wife at her domicile in Damascus, Abu Roumana street, known by chief of Ward, there".
[9] The relevant events that transpired following the wife's receipt of the divorce order will be discussed below. For the moment, it is sufficient to add that the husband remarried in March 2009 and to this day, continues to reside in Singapore with his new wife. The wife and children remained in Canada after the divorce was granted and still do to this day. The parties and their children all have dual citizenship from Syria and from Canada. The husband is also a citizen of Singapore. I do not know whether the parties or the children are citizens of Kuwait.
[10] From the time the wife and children moved back to Canada in 2006 until on or about August 2014, the husband sent the wife approximately $4,500 per month for her and the children's support. When Karam completed his post-secondary education in August 2014, the husband reduced his monthly support payments to $3,500. He also covered all the children's university tuition. When Basem finished his post-secondary education in July 2017, the husband stopped all support payments to the wife and informed her that it was now the children's turn and role to support her. This is when the wife filed her application for spousal support.
[11] Currently, the husband still works as a physician in Singapore and earns the equivalent of $600,000 CAN per year. The wife works at Shoppers Drug Mart on a part-time basis earning minimum wage.
Legal Framework
[12] The starting point for the legal analysis in this case is s. 22 of the Divorce Act, which deals with the recognition in Canada of foreign divorces. That section states:
Recognition of foreign divorce
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.
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 [page745] 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.
[13] It is not disputed that s. 22(1) and (2) do not apply in this case. The question to be determined is whether the Syrian divorce should be recognized pursuant to s. 22(3) of the Act, which allows the court to recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law. The common law recognizes that there is a presumption that a foreign divorce is valid, and the onus is on the party alleging its invalidity to adduce evidence to establish that the divorce was not properly obtained (Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218, [1976] S.C.J. No. 66; Martinez v. Basail, [2010] O.J. No. 1432, 2010 ONSC 2038, 86 R.F.L. (6th) 210 (S.C.J.)).
[14] Canadian courts will recognize a foreign divorce in the following situations:
(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 Novikova v. Lyzo, [2019] O.J. No. 5246, 2019 ONCA 821 and Orabi v. El Qaoud, [2005] N.S.J. No. 76, 2005 NSCA 28, 12 R.F.L. (6th) 296).
A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice or public policy (Novikova; Powell; Orabi; Wilson v. Kovalev, [2016] O.J. No. 103, 2016 ONSC 163 (S.C.J.); Beals v. Saldanha, [page746] [2003] 3 S.C.R. 416, [2003] S.C.J. No. 77, 2003 SCC 72; Kadri v. Kadri, [2015] O.J. No. 170, 2015 ONSC 321, 59 R.F.L. (7th) 187 (S.C.J.) to name only a few).
[15] In this case, the wife relies on all the above grounds to support her position that the divorce granted in Syria should not be recognized in Canada. She takes the position that the Syrian authorities did not have jurisdiction to deal with the parties' divorce since neither party has resided there since 1989, and neither party had a real and substantial connection to that country at the time of the husband's divorce application. Even if the court was to find jurisdiction, she states that the Syrian divorce was not properly obtained under the laws of Syria and that it is completely illegitimate and void on all accounts in that country, having been decided in error in Syria based on the husband's failure to properly notify her of the proceedings and to advise the Syrian court of the fact that she and the children were residents of Canada. She states that the husband chose to file for divorce in Syria for the sole purpose of circumventing his obligation to support her, as the laws in Syria limit a wife's entitlement to spousal support to three years which, coupled with the lack of opportunity for a wife to object to and have a voice in the granting of the divorce, is a denial of natural justice and against public policy in Canada.
[16] The husband takes the position that the divorce is valid under Syrian law, which determines subject matter and personal jurisdiction for divorce based on citizenship and religious affiliation (the parties need not reside in Syria for the divorce to be granted). He argues that the "real and substantial connection" test is easily met in this case, and that on that basis alone, Syria had jurisdiction to grant the divorce as it did. He states that notice of the Syrian divorce was properly given to the wife, as per the rules and practices in Syria, and that she had ample opportunity to file her objections and seek financial compensation before the Syrian court, which she chose not to do. Further, the husband states that by seeking the payment of her dowry, which can only be paid once a divorce is granted, the wife has accepted the Syrian divorce as valid and has attorned to the jurisdiction of Syria.
[17] Based on the above, I must first determine whether the Syrian divorce should be recognized based on one or more of the common-law rules set out in para. 14 above. If I find that Syria had jurisdiction to entertain the parties' divorce on one of the grounds set out above, the Syrian divorce is presumed to be valid unless I come to the conclusion that it should not be recognized in Canada on grounds of public policy, fraud or lack of natural justice. [page747]
Analysis
The Syrian divorce process
[18] Both parties have presented opinion evidence from their own expert on the laws and procedures applicable in Syria in the context of divorce proceedings. While they disagreed significantly on the issue of whether the Syrian divorce, as granted in this case, was valid according to Syrian laws, they mostly agreed on the process that must be followed to obtain a divorce in Syria (such as the types of divorces available and the different steps for each divorce process).
[19] Most importantly, the experts disagreed on whether Syria had jurisdiction to grant the parties a divorce in this case.
[20] According to the husband's expert, under Syrian law, citizenship and religious affiliation determine subject matter and personal jurisdiction for purposes of divorce. Article 14 of the Syrian Civil Code, Law No. 84 for the Year 1949, provides that Syrian law, only, shall govern the divorce "if either spouse is a Syrian national at the time of entering into the marriage contract". Neither party is therefore required to be present or live in Syria for a Syrian court to have jurisdiction to dissolve their marriage. The Syrian court is vested with subject matter and personal jurisdiction based on the parties' citizenship.
[21] According to the wife's expert, Syrian Law of Procedures Rule No. 81 states that the territorial jurisdiction of the court shall be the jurisdiction in which the respondent resides, which would have been Canada in this case. According to article 543 of the Civil Procedure from the Decree Code No. 84 of the year 1953, "registration of a marriage contract in the non-residence of the respondent does not invalidate the jurisdiction of the respondent's home court". In this case, though the marriage contract was registered in Damascus, Syria, the respondent (wife) and the children resided in Canada, and therefore, according to the wife's expert, the proper jurisdiction was Canada.
[22] As I will explain in more detail below, it is not necessary for me to determine which expert opinion is the correct one. Even if I were to accept the husband's expert's opinion in that regard, I find that none of the grounds upon which a Canadian court can recognize a foreign divorce is present in this case.
[23] The dissolution of a marriage in Syria is very different than in Canada. Three primary methods are available to dissolve a marriage. The method chosen by the husband in this case was the "Talaq". This is a husband's unilateral and exclusive right to dissolve the marriage (a no-fault divorce). A Talaq [page748] can take place verbally or in writing. The husband may also appoint a representative to perform the Talaq on his behalf (including his own wife).
[24] The divorce is either a formal judicial divorce or an administrative divorce. In the case at hand, the husband exercised his right to Talaq via the administrative process. Through that process, the husband files an administrative petition confirming the date that he performed the Talaq. The court then confirms the divorce and issues a revocable divorce decree. The decree is then served on the wife by the court clerk (unless the husband obtains permission to do so himself). Syrian law requires the service of the divorce action on the wife or on the wife's family in Syria, at her place of residence, domicile or place of business. The wife then has one month to appear before the tribunal to seek reconciliation. If the husband does not wish to reconcile, or if the wife does not appear before the tribunal to seek reconciliation within the one-month grace period, the divorce becomes irrevocable and is effective retroactively to the date the Talaq was administratively registered. If the husband wishes to attempt reconciliation, he is afforded three months to do so. If within that three-month period he chooses to reconcile, the divorce is revoked. If he refuses to reconcile, the divorce becomes irrevocable. It is not open to the wife to object to the divorce becoming irrevocable.
[25] The parties disagree on whether service was actually effected on the wife in accordance with Syrian law. I have reviewed all of the evidence presented to me, including the evidence of the wife's father upon whom the Syrian divorce was purportedly made in Syria, and I find as a fact that the divorce was never served on the wife's father in Syria as stated in the divorce decree. Whether or not the wife received a copy of the decree in Canada, and regardless of when she received it, according to the husband's own expert, service was to be effected in Syria on the wife or the wife's family according to Syrian rules. This did not happen.
Jurisdiction
[26] I conclude that the Syrian divorce should not be recognized in Canada because none of the grounds upon which foreign divorce orders may be recognized in Canada, based on s. 22(3) of the Divorce Act, have been established. I will deal with each one of them in turn. [page749]
(i) Where jurisdiction was assumed on the basis of the domicile of the spouses
[27] It is not disputed that neither party had his/her domicile in Syria at the time the husband initiated his divorce proceeding. Therefore, this ground is not available.
(ii) Where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties
[28] Counsel for the husband relied on the case of Kadri, at para. 79, as authority for the principle that Canadian courts can recognize a foreign divorce granted on a non-domiciliary jurisdictional basis if it is recognized by the law of the foreign domicile. I disagree with this interpretation of that case.
[29] In Novikova, at para. 14, the Ontario Court of Appeal reiterated the common law principles that the courts have historically relied upon under s. 22(3) of the Divorce Act to recognize foreign divorces, as helpfully summarized by Professor Julien D. Payne in Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111. What is relevant where the foreign divorce is granted on a non-domiciliary jurisdictional basis is whether the laws of the parties' domicile (i.e., the parties' domicile at the time of the divorce) would have recognized the foreign divorce (see, also, Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 500 A.R. 357, at para. 53; and Orabi, at para. 14).
[30] In this case, the parties' domicile at the time of the divorce proceeding was Canada for the wife and Singapore for the husband. No evidence was led as to the applicable legal principles for obtaining a divorce in Singapore. In Canada, s. 22 of the Divorce Act states that a divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce. Since neither party resided in Syria at the time of the divorce proceedings, the Syrian courts would not be recognized as jurisdictionally competent in the eyes of Canadian laws on that ground.
(iii) Where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings
[31] As explained above, to the extent that the husband's expert's opinion is accepted as the correct one, then under Syrian law neither spouse is required to be present or live in Syria for Syrian courts to have jurisdiction to dissolve their marriage. [page750] Canadian law requires ordinary residence in a province for one year immediately prior to the commencement of a divorce proceeding. As such, the Syrian jurisdictional rules do not correspond to the Canadian jurisdictional rules in divorce proceedings, and Syrian jurisdiction cannot be established on this ground.
[32] If the wife's expert's opinion was to be accepted as the correct one, Syria would have had to decline jurisdiction on the basis that the wife's domicile was in Canada.
(iv) Where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada
[33] Again, as neither party had ordinarily resided in Syria for one year preceding the commencement of the divorce proceeding, this ground is not established either.
(v) Where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted
[34] This is the "meat and bones" of the husband's argument on jurisdiction. The husband argues that, in this case, the "real and substantial connection" test is easily met. It is not disputed that although neither party was residing in Syria when the divorce was sought, they were both born, raised, educated and married in Syria. The husband's evidence is that he continued to visit Syria regularly, once a year or every other year. He states that he maintained close ties with Syria where his mother, brothers and sisters lived, and that he owns a residential property in Homs. He states that it was always his intention to resettle and retire in Syria until he changed his mind at some point in 2014 in the wake of the Syrian civil war. Finally, he states that the wife also maintained close ties with Syria where her cousins and parents resided (before her parents immigrated to Canada in 2011).
[35] The concept of "real and substantial" connection, as used for the purpose of deciding whether an interprovincial judgement should be recognized by another province in Canada, has been adopted by the Supreme Court of Canada for the purpose of recognizing foreign (international) judgments in Beals. In that case, the Supreme Court explained that a foreign judgement should be recognized in Canada if the foreign court had a "real and substantial connection" to the action or the parties. This legal concept was further explained as follows, at para. 32: [page751]
The "real and substantial connection" test requires that a significant connection exist 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.
[36] I do not agree that in the context of recognizing foreign divorces, the fact that parties were born, raised and married in a country satisfies the "real and substantial connection" test when, as here, these parties have not resided in that country or had any active involvement therein for almost 20 years. I do not agree that the mere fact that the parties' extended families continue to reside in that country, and that the parties visit them once every year or every second year, is sufficient to give rise to the "significant" connection necessary to ground jurisdiction.
[37] Although the husband claims to have maintained close ties with his mother and siblings in Syria during the parties' marriage, in his affidavit sworn on June 28, 2019 he states that after he separated from the wife in 2007, "the distance between myself and the rest of my family became very apparent to me and I began to long for more contact with my close family and friends from my childhood. As a result, I found myself speaking with my mother, brothers, sisters and friends back in Syria more and more frequently." This suggests to me that the husband's relationship with his mother, siblings and friends in Syria was not as close as he asserts.
[38] Further, while the husband states that he owns property in Syria to further support the existence of close ties to Syria, the evidence clearly establishes that this property was purchased by him after the parties' separation. The parties did not own any real property or other significant assets in Syria since they left the country in 1989. Other than the fact that the parties' respective families continued to reside there, and that they maintained contact and visited them throughout the 20 years that followed, there is no other indicia of the parties' participation in something of significance or active involvement in Syria since 1989.
[39] In coming to the conclusion that Syria did not have a real and substantial connection to the parties or their divorce, I rely on the Nova Scotia Court of Appeal's conclusions in Orabi. In that case, the court stated that "an occasional trip, or a passage with temporary residence merely for the purpose of satisfying a foreign divorce competence requirement, is not a 'real and substantial' connection." I find that this is exactly the case here. [page752]
(vi) Where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection
[40] Neither party presented arguments on this ground.
[41] The parties also spent a considerable amount of time arguing over whether the divorce granted in Syria was valid in that country in accordance with the rules of procedure applicable there. To the extent that a Canadian court finds that the foreign court had jurisdiction to entertain a divorce proceeding, I am not certain that it is open to the Canadian court to explore whether the divorce was validly granted in that country, and to refuse to recognize it here on that ground (unless the applicant can successfully raise available defenses of fraud, natural justice or public policy). It seems to me that, in that case, the validity of the divorce (if some rule of law or procedure was infringed) should be disputed before the court that granted it in the first place.
[42] In any event, given my conclusions below, this issue is moot.
Attornment and wife's acceptance of the Syrian divorce
[43] It is the husband's contention that the wife acknowledged the validity of the parties' Syrian divorce by giving her father power of attorney to collect her dowry from the husband in June 2009. As the husband's expert explained, the wife's right to her dowry accrues upon the dissolution of the marriage. Under Syrian law, the dowry is considered a preferential debt upon the husband. By filing the divorce, the husband is automatically obligated to pay the dowry. The wife's dowry would not have been due if the parties had not been divorced. Therefore, argues the husband, the wife's decision to appoint her father to collect her dowry is an indication that she accepted the Syrian court's authority to grant a divorce and that a valid divorce had taken place.
[44] I disagree with that contention.
[45] I find as a fact that the wife took no steps to object to the Syrian divorce proceeding based on her understanding that such divorce would not be valid in Canada. In her affidavit, she states that in 2008, right after the husband told her that he intended to divorce her, she consulted a lawyer in Ottawa to seek legal guidance and understanding as to her rights. She states that she was advised that the Syrian divorce would not be valid in Canada.
[46] Her evidence in that regard is confirmed, in my view, by an exchange of e-mails between the parties in May 2010 in which the recognition of the Syrian divorce in Canada is discussed and the possibility of obtaining an uncontested divorce through the [page753] Canadian courts is suggested by the husband. This suggestion is rejected by the wife who responds: "I don't know how you got the idea that a form should be filled for uncontested divorce, this term means that both parties agree on everything through their lawyer."
[47] I also disagree with the husband's contention that the wife "appointed her father as power of attorney to collect her dowry". Based on the evidence before me, this is a significant mischaracterization of what actually occurred.
[48] In his sworn affidavit, the wife's father explained that it was the husband who made significant efforts through his Syrian lawyer and his brother to convince him to accept the payment of the wife's dowry on her behalf. Before paying the dowry, the husband's brother (and his lawyer before him) insisted that the wife's father sign a waiver of all her rights on her behalf, something he says he eventually did under a great deal of pressure.
[49] Finally, in a letter sent by the wife's Ottawa lawyer to the husband on August 12, 2014, the wife's position that the Syrian divorce is not valid in Canada is reiterated, and the husband is advised about his obligation to provide child and spousal support to the wife in accordance with Canadian law. The wife states that there was no need for her to insist on obtaining a support order in Canada since the husband continued to provide financial support well after the Syrian divorce was granted. The wife also states that she was afraid the husband would react in anger and cut off support if she took any steps before the courts, including to challenge the Syrian divorce in Canada, a chance she was not prepared to take given that the two dependent children in her care required their father's financial support to complete their post-secondary education.
[50] I am satisfied, based on the evidence before me, that the wife did not accept the jurisdiction of the Syrian authorities to grant this divorce. She knew that there was nothing she could have done to prevent the divorce from being granted in Syria in any event, and she did not seek the enforcement of her rights before the Syrian courts.
Breach of natural justice
[51] As stated above, even if I am wrong to conclude that Syria did not have jurisdiction to grant the parties' divorce, I would not have recognized the divorce in any event, on the ground that the process followed by the Syrian court resulted in a denial of natural justice to the wife.
[52] As indicated above, I find that the wife's family was never served with the divorce decree in Syria, as required by the Syrian rules of procedure. It was the husband's expert's opinion [page754] that the approach to the rules of service in Syria are not strict or constructionist like here in Canada. What the court looks at is actual notice by the wife or her family, regardless of the way the divorce came to their knowledge. Even if the wife or her family were not formally notified (as is understood here), or even if they were not notified at all, the divorce would still be valid in Syria. In his cross-examination, he explained:
If she never received any notice, I could understand that there would be a little bit of an issue but unfortunately under Islamic law she still would be divorced because divorce is considered one of God's rights or kind of like a divine religious issue. They are only a mere formality that would come into place. The divorce would be valid, but its effectiveness may be date of notice as opposed to from date of issuance.
[53] It is not disputed that pursuant to the laws of Syria, the wife does not have the ability to contest the granting of the divorce: her only right is to try and convince her husband to reconcile. When a divorce is granted, the wife's entitlement to support for herself is limited to a maximum of three years.
[54] In Beals, the Supreme Court of Canada stated that a domestic court enforcing a judgment has a heightened duty to protect the interests of defendants when the judgment to be enforced is a foreign one. The domestic court must be satisfied that minimum standards of fairness have been applied to the Ontario defendants by the foreign court. At paras. 61 to 65, the court added:
The enforcing court must ensure that the defendant was granted a fair process.
Fair process is one that, in the system from which the judgment originates, reasonably guarantees basic procedural safeguards such as judicial independence and fair ethical rules governing the participants in the judicial system.
. . . If the foreign state's principles of justice, court procedures and judicial protections are not similar to ours, the domestic enforcing court will need to ensure that the minimum Canadian standards of fairness were applied. If fair process was not provided to the defendant, recognition and enforcement of the judgment may be denied.
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. The defence is limited to the procedure by which the foreign court arrived at its judgment. However, if that procedure, while valid there, is not in accordance with Canada's concept of natural justice, the foreign judgment will be rejected.
. . . . . [page755] In Canada, natural justice has frequently been viewed to include, but is not limited to, the necessity that a defendant be given adequate notice of the claim made against him and that he be granted an opportunity to defend.
[55] I am of the view that a process which leaves one party with absolutely no voice and no ability to defend oneself with regards to his or her own marital status, which in turn leads to that party loosing significant legal rights in his or her country of residence, seriously contravenes the principles of natural justice upon which our judicial system is built.
Conclusion
[56] For all the above reasons, recognition of the Syrian divorce in Ontario is denied and the wife's application for spousal support shall proceed.
Costs
[57] If the parties cannot agree on costs, I will accept brief written submissions not exceeding three pages (exclusive of bills of costs and offers to settle). The wife will have 15 days from the date of this decision to provide her submissions and the husband will have 15 days thereafter to do the same. The wife will be allowed a brief reply if deemed necessary, not exceeding one page, which shall be provided within seven days from receipt of the husband's submissions.
Recognition of foreign divorce denied.
End of Document