Court File and Parties

COURT FILE NO.: FD9/19 DATE: May 29, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Kyle Jonathon Giesbrecht, applicant AND: Ching Bong Lo, respondent

BEFORE: TOBIN J.

COUNSEL: Kenneth B. Fraser for the applicant

HEARD: in chambers

ENDORSEMENT

[1] This is an application for divorce made under Part 2 of the Civil Marriage Act, S.C. 2005, c. 33 (the “CMA”).

Facts

[2] The parties married on March 23, 2018 in Tillsonburg, Ontario.

[3] Neither party lives in Ontario at this time. Both reside in Hong Kong.

[4] The applicant has lived in Hong Kong since August 2012. The respondent has lived in Hong Kong since July 2013.

[5] On August 29, 2018, the parties separated.

[6] The application for divorce was issued on January 3, 2019.

[7] The CMA establishes a divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of the marriage.[^1]

Legal Considerations

[8] The relevant sections of the CMA are as follows:

Definition of court

6 In this Part, court, in respect of a province, means

(a) for Ontario, the Superior Court of Justice;

Divorce — non-resident spouses

7 (1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if

(a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;

(b) neither spouse resides in Canada at the time the application is made; and

(c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

Application

(2) The application may be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse

(a) is incapable of making decisions about his or her civil status because of a mental disability;

(b) is unreasonably withholding consent; or

(c) cannot be found.

[9] The court with jurisdiction to grant a divorce in Ontario under the CMA is the Superior Court of Justice: s. 6(a).

[10] Section 7 of the CMA provides that the court of the province where the marriage was performed may grant a spouse a divorce if three conditions are met:

(a) the parties have lived separate and apart for at least one year before the making of the application;

(b) neither party resides in Canada when the application is made; and

(c) for at least one year before the application was made, the parties shall have been living in a state where their marriage is not recognized as valid.

[11] The divorce application can be made by one spouse with the other’s consent: s. 7(2).

[12] It appears to me that s. 7(1) of the CMA means that an application is made under that section when it is issued. The making of an application corresponds to the commencement of a proceeding as referred to in ss. 3 and 8(2)(a) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (the “DA”). The commencement of proceedings under the DA means the date the divorce application was issued.

Matters of Concern

[13] The applicant has met a number of the conditions required under the CMA for a divorce to be granted. However, two conditions appear not have been satisfied.

Have the parties lived separate and apart for at least one year before the making of the application?

[14] The divorce application was made, that is, issued on January 3, 2019. This date is approximately four months after the parties separated.

[15] Section 7(1)(a) of the CMA is unlike s. 8(2)(a) of the DA, which requires that the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce process. The CMA requires the parties to have lived separate and apart for one year before the making of the application.

[16] The evidence does not establish that the parties had lived separate and apart for one year upon making the application. To the contrary, the evidence suggests that the parties had only lived separate and apart for approximately four months as of January 3, 2019 when the application for divorce was made.

Is proof of foreign law by expert evidence required to prove that the parties have lived in a state where their marriage is not recognized as valid?

[17] The question whether a foreign state recognizes the validity of the Canadian marriage is a question of foreign law.

[18] The applicant filed a consent signed by both parties (which satisfies CMA s. 7(2)) in support of the divorce application. Contained in the consent is the following statement:

5. Hong Kong is a state where the parties cannot obtain a divorce because Hong Kong does not recognize the validity of the parties’ same sex marriage.

[19] A finding that a state does not recognize the validity of a marriage is informed by foreign law. If the court requires evidence of foreign law, it is a question of fact that is to be proved by way of expert evidence. In Lear v. Lear (1974), 1974 CanLII 527 (ON CA), 5 O.R. (2d) 572 (C.A.), the Court held, at para. 10:

… In general the foreign law must be proved by expert evidence and not merely by putting the text of a foreign enactment before the court or citing foreign decisions or books of authority. …

[20] In Friedl v. Friedl, 2009 BCCA 314, the British Columbia Court of appeal stated, at para. 20:

For the purpose of applying foreign law, a BC court must rely on the evidence of an expert competent to explain and interpret the foreign law, and the judge’s conclusion on the foreign law is a finding of fact.

[21] This issue was referred to in Droit de la famille – 152986, 2015 QCCS 5570. This is a decision of the Quebec Superior Court on a joint application for divorce made under the CMA. One of the parties lived in China and the other in France. The parties filed two legal opinions: one, an affidavit from a Chinese lawyer, and the other, a letter from a French lawyer. The court made the following observation with respect to the evidence required regarding the state of foreign law as follows, at para. 12:

Le recours à l’opinion d’un avocat paraît revêtir les attributs formels requis. Quant au fond, le Tribunal doit être convaincu, par prépondérance de la preuve, que les parties ne peuvent divorcer ni en France ni en Chine et que conséquemment leur mariage n’y est pas reconnu.

[22] The applicant has not provided admissible expert evidence on which the court can find that Hong Kong does not recognize the validity of the parties’ marriage.

Next Steps

[23] The applicant may, if he wishes, file further evidence and make submissions regarding the two deficiencies identified in this endorsement by June 30, 2020. If no further evidence or submissions are made by that date, the divorce application shall be dismissed without prejudice to either party making an application for divorce.

“Justice B. Tobin”

Justice B. Tobin

Date: May 29, 2020

[^1]: Cynthia Kirkby, Legislative Summary – Bill C-32: An Act to Amend the Civil Marriage Act (publication No. 41-1-C32-E), 9 March 2012, rev. 19 June 2013 (Parliamentary Information and Research Service).