COURT FILE NO.: FS-17-416298
DATE: 20200129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Iryna Antonyuk
Applicant
– and –
Mykhaylo Antonyuk
Respondent
Self-represented
Igor Yushchenko, for the Respondent
HEARD: December 9, 10, 11 and 20, 2019
E.L. Nakonechny, J.
REASONS FOR DECISION
[1] The only issue at this trial is whether this court should recognize the divorce that the Respondent obtained in Kyiv, Ukraine, dated October 23, 1998, (the “Certificate of Divorce”) pursuant to s. 22 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”).
[2] The Respondent argues that the divorce is valid. He has since remarried. He and his current spouse have a son aged 17.
[3] The Applicant argues that the divorce is invalid for the following reasons:
a. The date of the divorce, October 23, 1998, pre-dates the date of separation, January 1999.
b. The divorce application and notices of court hearing were not served on the Applicant.
c. Neither party ever resided in the Vatutinsky District of Kyiv, where the divorce was granted. They did not own property in that district nor did they have any ties to that district.
d. The Respondent was not ordinarily resident of Ukraine for one year immediately preceding the commencement of the divorce proceeding.
[4] The Applicant also argues that the person named “Iryna Antonyuk” on the Certificate of Divorce is not her, but is the Respondent’s current wife, also named Iryna Antonyuk. The Applicant attempted to obtain a copy of the Certificate of Divorce in Kyiv in 2007. She was told she could not have a copy because she did not reside at the address that was associated with the file and could not prove that she was the person the divorce was issued to.
Background
[5] The Respondent was born in Ukraine. The Applicant was born in Russia. They were married in Kyiv on July 13, 1983. The parties have one child, A., born May 23, 1986, now aged 33. Both parties are trained as computer engineers.
[6] The parties began the process to immigrate to Canada in 1996. It took about two years, until January 1998, to receive permission to immigrate. Once this was granted, the parties had a six-month window to move before the permission expired.
[7] The Respondent states that trouble in the marriage began after they applied to immigrate. He says the parties lived a “separate and unhappy life” in the year prior to leaving for Canada. He slept in the living room, and he spoke to his best friend about the problems in the relationship and the possibility of divorce.
[8] The Applicant left her job in January 1998 to prepare for the move. The Respondent says this made the situation between the parties worse. At some point the Applicant confessed to having a relationship with another person. The Respondent believed the marriage was at an end.
[9] The Respondent states that the parties discussed divorce in May or June 1998, prior to the move to Canada. The Respondent suggested the divorce should take place in Ukraine. The parties had resided in Kyiv during their marriage, they were part owners of the apartment they lived in, and they understood the process. He says the Applicant agreed, but was concerned the divorce would impact the immigration application.
[10] The Respondent spoke to the Applicant’s parents and his own parents. He told them the parties might divorce and not immigrate to Canada. The Applicant’s mother came to visit in the hope of helping the parties. The Respondent’s mother also became involved. The Applicant then told the Respondent she did not agree to the divorce.
[11] On June 27, 1998, the parties and their daughter landed in Canada. The Applicant’s Record of Landing states he had Canadian funds of $15,490 in a Ukrainian Credit Union Account as well as U.S. funds in the amount of $1,120. This is confirmed by a bank statement in evidence.
[12] When the parties immigrated to Canada, they each returned their internal Ukrainian passport to the Ukrainian government. This, the Applicant says, is proof that the parties intended to give up their residency in Ukraine and not return to live there. They each kept their international Ukrainian passports.
[13] The Respondent returned to Ukraine on July 12, 1998 to complete work on an ongoing employment contract. On July 3, 1998, prior to leaving Canada, he transferred $7,170, about one half of the funds in the Ukrainian Credit Union account, to an account in the Applicant’s name. On July 10, 1998, he transferred a further $700 to the Applicant’s account and withdrew $700 himself. This left about $154 in the account. The Respondent states that he transferred the funds to divide the parties’ cash assets equally as part of their separation.
[14] The Respondent states that he was open with the Applicant about his plan to commence the divorce proceeding when he returned to Ukraine. He acknowledges that the Applicant did not agree to the divorce because she wanted to keep the family together. The Respondent felt the marriage had been over for some time. He cited as his reasons the Applicant’s infidelity and the fact that they had been living apart physically and emotionally for months.
[15] The Applicant denies that she had a romantic relationship outside of the marriage. She says she had friends and participated in social activities with others but that was all. She also denies that she ever agreed to the divorce. She states that she was unaware of the Respondent’s plan to proceed with the divorce when he returned to Ukraine.
[16] The Applicant believes that the Respondent transferred money to her before he left for Ukraine in order for her to pay rent and expenses while he was away. She admits they spoke on the telephone long distance but denies they discussed divorce. The Applicant was waiting for the Respondent to return to her and their daughter in Canada.
The Divorce Proceeding in Ukraine
[17] In August 1998, the Respondent met with a lawyer in Kyiv three or four times to fill out the necessary forms and to sign documents to commence the divorce proceeding. He provided the lawyer with the Applicant’s address for service in Toronto. He was also required to provide her last known address in Kyiv, which was the apartment where they resided before they left Ukraine.
[18] The Respondent used the Kyiv address of his current wife, Iryna Opanasyuk, on the documents for the divorce proceeding. He knew Ms. Opanasyuk when the parties resided in Ukraine. They reconnected and began a romantic relationship when the Respondent returned to Kyiv. He says at that time he did not see himself as a “married man”.
[19] The Respondent did not send any of the documents in the divorce proceeding to the Applicant. He was told by his lawyer that the court was required to give the Applicant notice of the divorce hearing.
[20] The divorce hearing took place on September 28, 1998 in the Vatutinsky District Court of Kyiv. Pinchuk, T.E. was the presiding judge.
[21] The Respondent submits into evidence the handwritten Resolution of Pinchuk J. (“the Resolution”), which orders the dissolution of the marriage of Mykhaylo Volodymyrovych Antonyuk and Iryna Vyacheslavivna Antonyuk. The Resolution confirms the parties have been married since 1993 and that they have a daughter, A., born of their marriage. This is contrary to the Applicant’s assertion that she is not the Iryna Antonyuk named in the Certificate of Divorce issued from this proceeding.
[22] The Resolution states that Iryna Antonyuk did not appear at the hearing and that she was informed about the date and time of the hearing on September 25 and 28, 1998.
[23] In the Resolution, Pinchuk J. references the relevant statutes, Articles 15, 30, 62, and 172 of the Civil Procedure Code of Ukraine, and Articles 38 and 40 of the Marriage and Family Code of Ukraine. Pinchuk J. states that having heard from the claimant and considered the materials of the case, he is satisfied that the claim for divorce has been satisfied and the marriage is subject to dissolution on the following bases:
a. The parties lived separately and terminated all marriage and family relations. They did not find mutual understanding.
b. The claimant (Mykhaylo Volodymyrovych Antonyuk) does not want reconciliation.
c. The family split and there may not be continuation. [as per translation]
[24] The Resolution was entered into force by the Certificate of Divorce, as Number 191619. The Respondent paid the required fee to obtain two originals of the Certificate of Divorce, one for each of the parties.
The Respondent’s Position
[25] The Respondent returned to Canada in January 1999. On his return he went to the Applicant’s apartment and gave her a duplicate original of the Certificate of Divorce. The Respondent retrieved his personal belongings from the apartment on that day.
[26] The Respondent states that the parties did not discuss the divorce for about 17 years, until 2016. The Applicant’s Income Tax Returns filed in 2014, 2015, and 2016 states her marital status as “divorced”. The Applicant was aware of the Respondent’s remarriage and that he and his current wife had a son.
[27] In 2016, the Applicant told the Respondent she needed a document that would prove the Ukrainian divorce was valid so that she could remarry in Canada.
[28] The Respondent called the office in Ukraine where the Certificate of Divorce was issued. He was referred to a central office and asked to provide a copy of his Canadian Passport, his International Ukrainian Passport (which was expired), and to pay a fee. One day after the request, he received a replacement copy of the Certificate of Divorce and an extract of the State Register showing a record of the marriage and a record of the dissolution of the marriage. The Respondent provided the Applicant with a copy of the Certificate of Divorce signed and sealed by the Civil Registry Office, the Ministry of Justice of Ukraine, the Ministry of Foreign Affairs of Ukraine and the Ministry of Foreign Affairs Ukrainian Consular Office of the Canadian Embassy. He also provided a notarized translation.
[29] The Respondent spoke to a lawyer and asked if the notarized translation was sufficient to permit the Applicant to remarry in Canada. (The Respondent and his current wife married in Ukraine.) The lawyer told him a letter from a lawyer confirming the validity of the foreign divorce could be obtained for a fee of about $250.
[30] The Respondent tried to assist the Applicant by giving her the information she needed to remarry. She did not accept this and said that someone could object to the Ukrainian divorce, and this would prevent her remarriage. The parties had an argument about this.
[31] On December 23, 2016, the Respondent received an e-mail from the Applicant accusing him of obtaining a false divorce certificate and giving him one month to provide a “valid Canadian divorce certificate”. The e-mail goes on to accuse the Respondent of marrying a second woman while the two of them were still married, divorcing the second wife on the “same day after marriage to get forgery divorce certificate”, taking money from their joint account to take the second wife on an expensive vacation, not paying child support for A., and killing A.’s hamster and cat.
[32] The Applicant’s e-mail states that the Respondent marrying a second woman while still married to her is a criminal offence (bigamy), but she does not threaten criminal charges. The Applicant states she has retained a lawyer to commence an Application for Divorce in Canada.
[33] Based on this e-mail, the Respondent believes that the Applicant is not just seeking a simple divorce. He believes she wants to cause harm to his current wife and son by attempting to nullify his current marriage. This would disrupt his current wife’s spousal rights and obligations and negatively impact their marriage and the stability of their family.
The Applicant’s Position
[34] The Applicant denies that she knew the Respondent planned to obtain a divorce when he returned to Kyiv in July 1998. She denies receiving the Certificate of Divorce from the Respondent in January 1999. She acknowledges the meeting in January 1999 but says that was when the Respondent gave her “notice” that he was separating from her. He moved out of the apartment on that day.
[35] The Applicant states that she was never served by the Ukrainian Court with any documents from the divorce application. She had no notice of the hearing and no opportunity to attend and oppose the divorce. The Applicant claims that she has never received an original of the Certificate of Divorce.
[36] The Applicant acknowledges that the name in the Certificate for Divorce, Iryna Vyacheslavivna Antonyuk, is her name, but says she did not use her patronymic name, Vyacheslavivna, on her passport or other identification. She states that the Vatutinsky District Court of Kyiv did not have jurisdiction to hear the divorce proceeding because the parties never lived in the Vatutinsky district. She does not believe the Respondent could lawfully obtain a divorce in Kyiv after he immigrated to Canada because he no longer had an address in Kyiv and was no longer a resident.
[37] The Applicant states that the Respondent first gave her a photocopy of the Certificate of Divorce in 2000 or 2001. He told her it was “too late” to appeal the divorce. The Applicant believed the Respondent and felt she had no option but to accept the divorce.
[38] After she received a copy of the Certificate of Divorce, the Applicant asked the Respondent to begin paying child support for A., who was then 15 years old. The Applicant wanted a signed document because they were separated and there was a divorce document.
[39] The Applicant brought the Respondent to a notary public, who drafted a Child Support and Access Agreement (“the Agreement”) based on instructions received from both parties. The parties met with the notary a second time to review and sign the document on July 6, 2001.
[40] The Respondent produced copies of cheques for child support paid to the Applicant for the period from May 6, 2000 to September 18, 2002. The amount of the cheques prior to the date of the Agreement was between $200 and $300. The Respondent began paying the agreed upon support of $468 per month after the Agreement was signed. The Applicant concedes that she received and cashed the support cheques.
[41] At some point the Respondent began giving A. cheques made payable directly to her. The Applicant says this coincided with the date the Respondent brought his current wife to Canada. This is not correct. The Respondent’s current wife’s Record of Landing in Canada is dated March 16, 2001, before the Agreement was signed.
[42] The Applicant travelled to Ukraine in 2007. She went to the registry office to obtain an original of the Certificate of Divorce and to see the court file. She brought a copy of the Certificate of Divorce the Respondent gave her. She was told there was no divorce registered in her name.
[43] The Applicant was told she had to provide a document number as well as proof of her Ukrainian address to request a copy of the divorce. She was told the document she received from the Respondent was not issued to her but to a different Iryna Antonyuk with an address in the Vatutinsky District. Because her address was not from that district and she could not prove that she was “related” to that court decision, she could not obtain the court file or any documents from it.
[44] The Applicant states she was told by a “free lawyer” in the registry office that there were two affidavits in the court file signed by another Iryna Antonyuk with an address in the Vatutinsky District.
[45] The Applicant began to question the validity of the divorce after August 2007. However, she took no further steps to confirm the validity until 2010. She applied then to the Ukrainian Embassy for an original of the Certificate of Divorce. She was again told there was no divorce document issued in her name. She was also told that the original court file had been destroyed in accordance with legislation which limited the period of retention of marriage dissolution cases to three years from the date of judgment.
[46] The Applicant says it was not until 2017 that she had the funds to hire a lawyer to challenge the validity of the divorce.
[47] The Applicant acknowledges that she began listing her marital status as “divorced” when filing her income tax returns beginning in 2001. She continued to do so even after she began to question the validity of the divorce in 2007. The Applicant says her lawyer made inquiries with Canada Revenue Agency but was told that she could not change her marital status from “divorced” back to “separated” on her tax returns. I received no independent evidence on this issue.
The Evidence of the Respondent’s Friend, Alexander Dvorkin
[48] Alexander Dvorkin has been friends with the Respondent from their time together as young officers in the Ukrainian military. Mr. Dvorkin picked up the parties and A. at the airport when they arrived from Ukraine in June, 1998. He recalls that the Respondent spoke to him about the divorce at that time.
[49] In January 1999, Mr. Dvorkin and his wife went with the Respondent to the Applicant’s home. The Applicant invited the Respondent and the Dvorkins in for tea. Mr. Dvorkin recalled that the Respondent brought documents in a protective cover. He did not know what the documents were nor did he see the Respondent give them to the Applicant, but he does recall the Respondent not having the documents when they left the apartment.
[50] The Applicant, the Respondent and the Dvorkins sat at a table and spoke while they were having tea. Mr. Dvorkin understood from the conversation that the parties were divorced. Mr. Dvorkin observed that the Applicant was not surprised by the discussion of the divorce. There was no anger or disagreement between the Applicant and the Respondent during the conversation.
[51] I found Mr. Dvorkin to be a credible witness. He testified that he wanted to help the parties when they first came to Canada. Mr. Dvorkin said he felt badly when the Respondent told him he planned to divorce. He told the Respondent that settling in Canada would be difficult and that the parties should try to work things out if they could.
The Evidence of the Expert, Oleksandr Vasyliovych Andriienko
[52] The Respondent provided the expert evidence of Oleksandr Vasyliovych Andriienko, a lawyer licenced by Kyiv City Assessment and Disciplinary Board of the Bar, dated January 25, 2007. Mr. Andriienko was qualified as a specialist in the national legislation of Ukraine and its application, particularly in family law and civil disputes.
[53] In his report, Mr. Andriienko sets out the relevant legislation in force in 1998 and 1999 relating to dissolution of marriage: the Constitution of Ukraine, dated June 28, 1996, the Marriage and Family Code of Ukraine, dated June 20, 1969 and amended on April 1, 1996, and the Civil Procedure Code of Ukraine, dated July 18, 1963 and amended on July 24, 1996.
[54] Mr. Andriienko’s report confirms the following (as per translation):
a. One party is permitted to apply for the dissolution of the marriage without the other spouse’s consent. They must prove to the court that further living as a couple and family preservation is impossible (Article 39-40 of the Marriage and Family Code).
b. Cases of disputes in family relationships are to be considered by local general courts (Part 1, Article 24 of the Civil Procedure Code). Vatutinsky District Court of Kyiv is a local general court.
c. The general rule is that a lawsuit is filed with the court at the place of residence of the defendant. However, if the defendant has no place of residence in Ukraine, the court has discretion to permit claims for marriage dissolution to be filed in the place of the claimant’s residence (Part 12, Article 126 of the Civil Procedure Code).
The issue of jurisdiction is studied by the court at the time it receives the divorce application. The court decides whether to accept the application for hearing and gives its reasons for the acceptance. These reasons would have formed part of the court file that was destroyed in 2010.
Articles 312-314 of the Civil Procedure Code do not expressly recognize the violation of rules of territorial jurisdiction as an unconditional ground of appeal.
Mr. Andriienko opines that, despite the destruction of the reasons, the court must have approved the jurisdiction at the application stage to send the case to hearing. The application proceeded and Pinchuk J. held that the Respondent (claimant in the Ukrainian proceeding) had met the test required to prove his case for dissolution of the marriage under the required law.
d. The judge sends a copy of the application and court documents along with a summons to hearing to the defendant within 7 (minimum) or 20 (maximum) days of the acceptance of the application (Part 2, Articles 143 and 146 of the Civil Procedure Code). If a party does not attend court on the hearing date, the court may, at its own discretion, adjourn the case or consider it in the absence of the other party (Parts 1 and 2, Article 172 of the Civil Procedure Code).
e. The court should have provided the Applicant (defendant in the Ukrainian proceeding), who was not present at the hearing, with a copy of the judgement within five days. As a named party in the case, the Applicant continues to be entitled to obtain a copy of the judgment at any time through the office of court records (Article 216 of the Civil Procedure Code).
f. The civil procedure and family-related laws in effect at the time did not use the term “residency”. Instead, the relevant legislation used a term akin to “citizenship”. The fact that the parties had permanent residence status in Canada did not reduce their rights and duties as citizens of Ukraine. Both parties had the right to apply for divorce in Ukraine as citizens of Ukraine regardless of where they actually lived at the time and whether they had a permanent residence permit in another country (Part 1, Article 4, Part 3, Article 24, Section VI, Articles 423-428 of the Civil Procedure Code).
g. The Marriage and Family Code of Ukraine does not require the parties to live separately for one year or any specific period of time before granting the divorce. The court has the right to ask the parties if reconciliation is possible and may, at its discretion or at the request of one of the parties, delay the granting of the divorce if it finds that reconciliation is possible. If one party confirms that there is no possibility of reconciliation, the court has no basis to delay the divorce.
[55] In Mr. Andriienko’s opinion, Pinchuk J. of the Vatutinsky District Court of Kyiv had the jurisdiction to grant the dissolution of the marriage of the parties. The Respondent had satisfied the grounds for divorce required under the laws of Ukraine and took all the necessary procedural steps required under the laws of Ukraine to obtain the divorce.
[56] Mr. Andriienko was a very helpful witness. His analysis of the relevant laws and procedure and their application to the divorce proceeding was methodical and logical. Mr Andriienko’s demeanor suggested he had no personal interest in the outcome of the case. I accept his analysis and opinion.
The Law and Analysis
[57] Section 22 of the Divorce Act enables a court to recognize a foreign divorce on three bases:
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.
(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.
[58] Foreign divorce decrees are presumptively valid. The onus is on the party challenging the validity of the divorce to convince the court that the divorce should not be recognized in Ontario: Essa v. Mekawi, 2014 ONSC 7409, at para. 62.
[59] In Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362, at paras. 10-11, Chappel J., held that s. 22(3) of the Divorce Act allows the court to use conflict of law principles and the common law to recognize a foreign divorce:
“At common law, there are presumptions in favour of the validity of a foreign divorce decree. Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained […]. The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:
The Respondent did not receive notice of the Divorce Application;
The foreign divorce decree is contrary to Canadian public policy;
The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
Where there is evidence of fraud going to the jurisdiction of the granting authority;
There was a denial of natural justice by the granting authority in making the divorce order.
[citations omitted]
By contrast, there are numerous bases upon which Ontario courts will recognize a divorce obtained in a foreign country, including the following:
The parties were domiciled in the foreign country that granted the divorce (“the granting country”) when the divorce proceedings were commenced;
Either party was domiciled in the granting country when the divorce order was made;
The divorce, wherever granted, would be recognized by the law of the country where the parties were domiciled when the divorce order was made;
The jurisdictional rule of the granting country corresponds to the Canadian jurisdictional rule in divorce proceedings;
Where either party had a real and substantial connection with the granting country;
Where the foreign divorce would be recognized in another foreign jurisdiction with which either party has a real and substantial connection.
[citations omitted]
[60] Both parties were citizens of Ukraine at the time the divorce proceeding was commenced. I accept Mr. Andriienko’s opinion that the Respondent had the right as a citizen to commence the proceedings for divorce on that basis. I also accept his opinion that Ukrainian law does not require a one-year separation period or any specific time period of separation before granting a divorce.
[61] The law of Ukraine does not use the term “ordinarily resident”. The Respondent resided in Ukraine from birth. The parties resided in Ukraine during their fifteen-year marriage. They owned, and continue to own, property there. Each party had a real and substantial connection to Ukraine.
[62] The Applicant says she was not given notice of the divorce hearing. The Resolution of Pinchuk J. states that the Applicant was informed of the divorce hearing on September 25 and 28, 1998. Pinchuk J. was satisfied that the proper steps were taken to give the Applicant notice of the hearing before he made his decision. The judge had discretion under the Civil Procedural Code to hear the matter in the Defendant’s absence.
[63] I have no jurisdiction to inquire whether the foreign court erred in applying the relevant law absent an allegation of fraud going to its jurisdiction. The Applicant does not allege fraud. She alleges the parties never lived in the Vatutinsky District of Kyiv and that a court in that district did not have jurisdiction to hear the proceeding.
[64] Mr. Andriienko stated that the issue of jurisdiction would have been decided by the Vatutinsky District court at the time it received the application for divorce, before the matter proceeded to a hearing. The fact that the proceeding was heard in that district confirms to me that the court found it had jurisdiction. There is no evidence of fraud.
[65] The Certificate of Divorce is not contrary to Canadian public policy. The Respondent did not obtain the divorce in Ukraine to evade his legal obligations in Ontario. The Applicant never brought a claim for any family law relief against the Respondent until she commenced this Application for a divorce only in March 2017.
[66] At the outset of trial, I specifically asked the Applicant if she was seeking any relief beyond the divorce. She told me she was not. The Applicant gave no evidence that any of her legal rights were impacted by the foreign divorce other than her ability to remarry. She acknowledged that if I made an Order finding that the foreign divorce was valid, that issue would be solved.
[67] The Applicant raised no objection to the Certificate of Divorce in the 17 (by the Respondent’s evidence) or 15 (by the Applicant’s evidence) years after she received a copy of it. She relied on the Certificate of Divorce when filing her Income Tax Returns, a document which requires the taxpayer to certify the correctness of the contents.
[68] The Applicant is aware of the Respondent’s remarriage and his second child. She did not advise the Respondent of her dispute regarding the validity of the Certificate of Divorce until many years after these events.
[69] The Respondent has not specifically raised the equitable doctrines of laches or estoppel, but he does argue it would be unjust and unfair for the Ontario court not to recognize the Certificate of Divorce as valid. The Applicant waited an unreasonable length of time to challenge the divorce. She knew the Respondent relied on the validity of the divorce to remarry and start a second family.
[70] The Supreme Court of Canada in Downton v. Royal Trust Co. et al., 1972 CanLII 148 (SCC), [1973] S.C.R. 437, held that a person may be precluded from attacking the validity of a foreign divorce if it would be inequitable in the circumstances for him or her to do so. One of these circumstances may be where a party has waited an unreasonably long time before attacking the divorce and the other party has remarried in the meantime: Downton, at p. 451, citing The American Law Institute, Restatements of the Law, Conflict of Laws, 2d (1971).
[71] The Applicant’s own evidence is that she believes the Certificate of Divorce was valid until at least 2007. Even then, she waited nine years before taking any steps to challenge its validity. It would be very detrimental to the Respondent and his family if that divorce was not recognized.
[72] For the reasons above, I am not convinced the Applicant has met the onus of proving the Certificate of Divorce was not properly obtained and should not be recognized.
Order
[73] The divorce of the Applicant and Respondent granted by Certificate of Divorce issued October 23, 1998, registered in the Civil Registry Office of the Vatutinsky District in Kyiv, No. 191619, is valid and recognized pursuant to s. 22 of the Divorce Act for the purposes of determining the marital status of the parties in Canada.
[74] The Application is dismissed.
[75] If the parties are unable to reach an agreement on costs, the Applicant shall serve and file written costs submissions no longer than three pages, not including Offers to Settle and Bills of Costs, no later than seven business days from the release of these reasons. The Respondent shall serve and file any responding materials within seven business days of receipt of the Applicant’s material, subject to the same length restrictions. The Applicant may file two pages of submissions in reply seven business days after receipt of the Respondent’s materials. Costs submissions may be submitted electronically to my assistant, Anna Maria at annamaria.tiberio@ontario.ca.
E.L. Nakonechny
Released: January 29, 2020
COURT FILE NO.: FS-17-416298
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Iryna Antonyuk
Applicant
– and –
Mykhaylo Antonyuk
Respondent
REASONS FOR JUDGMENT
Nakonechny J.
Released: January 29, 2020