Court File and Parties
COURT FILE NO.: FS-20-00019436-0000
DATE: 20210901
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TATIANA VYAZEMSKAYA, Applicant
AND:
DZHAMSHID SAFIN, Respondent
BEFORE: Justice J. Steele
COUNSEL: Oleksiy Bykov, for the Applicant
Dzhamshid Safin, Self-Represented
HEARD: August 26, 2021
ENDORSEMENT
- This is a motion by the applicant, Tatiana Vyazemskaya, for an order to set aside a divorce order from Russia
Background
The parties were married on or about November 22, 2012 in Russia. There is one child of the marriage, K.S. (born December 8, 2012). The family immigrated to Canada in March 2018. They reside in Canada now and are permanent residents of Canada.
There is some disagreement between the parties as to when they separated in the affidavit evidence. The applicant in her objection, which was filed in respect of the divorce in Russia, stated that Mr. Safin lived until November 17, 2019 with her in the same apartment.
On or about November 15, 2019, over a year and half since the parties moved together as a family to Canada, Mr. Safin applied for divorce in Russia.
After learning of the divorce proceedings, the applicant filed an objection with the courts in Russia (the “Objection”), stating that, among other things, the proceedings ought to be determined in their place of residence in Toronto, Canada in accordance with the laws of that jurisdiction. An English translated version of the objection was included with the record.
The Justice of the Peace in Russia granted the divorce on or about January 13, 2020 (the “Divorce Decision”). An English translated version of the Divorce Decision was included with the record.
The applicant commenced proceedings in the Ontario Court of Justice on July 15, 2020, which proceedings were transferred to this court.
The Law and Analysis
- Under section 22 of the Divorce Act:
“(1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.
(2) A divorce granted, after July 1, 1968, 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.”
In Wilson v. Kovalev, 2016 ONSC, 163, the court determined that section 22(3) of the Divorce Act is interpreted so as to permit the court to use conflict of law principles and the common law to recognize a foreign divorce.
A divorce granted in a foreign jurisdiction is presumed to be valid and the onus is on the applicant to convince the court that the divorce should be set aside. There are several grounds upon which the court will decline to recognize a foreign divorce. As stated by the Court in Wilson v. Kovalev, 2016 ONSC, 163 (at para. 10):
“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 (Powell v. Cockburn, 1976 SCC 29, [1976] S.C.J. No. 66 (S.C.C.); Martinez v. Basail, 2010 ONSC 2038 (S.C.J.); Janes v. Pardo, Supra.) 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 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; or
There was a denial of natural justice by the granting authority in making the divorce order.
Further, the court will recognize a divorce obtained in a foreign country in numerous circumstances, including where either party had a real and substantial connection with the granting country: Wilson v. Kovalev, Supra.
Service of Russia Divorce Proceedings
The applicant argues that the divorce granted in Russia was obtained without proper service to the applicant.
The applicant relies heavily on Novikova v. Lyzo, 2019 ONCA 821. In that case there was similarly a divorce proceeding in Russia. Service of the divorce application was done by registered mail to the registered address of Ms. Novikova in Russia, where her parents refused to accept the documents on her behalf. She was aware of the proceedings but did not receive any of the documents and did not receive a copy of the divorce decree within the appeal period. The court upheld the motion judge’s determination that the Russian divorce was invalid based on lack of notice to Ms. Novikova, which was a denial of natural justice. The Court of Appeal stated that “[t]his was the reason for the refusal to recognize the Russian Divorce.” The Court of Appeal indicated that it was appropriate to address this issue before determining whether there was a “real and substantial connection”. For the reasons set out below, this case is distinguishable on its facts.
Based on the record before and the oral submissions, I am satisfied that Ms. Vyazemskaya had notice of the divorce proceedings in Russia and received the documents. While I accept that the original service of Mr. Safin’s statement of claim was sent to the parties’ prior residence in Russia, which they still own, Ms. Vyazemskaya was aware of the divorce proceedings and received the documents. I make this finding for the following reasons:
a. Ms. Vyazemskaya filed the Objection to Mr. Safin’s divorce statement of claim and stated, inter alia, “On November 20, 2019, I – Vyazemskaya Tatiana Vladimirovna received notification send to my email from my husband Safin Dzhamshid Rashidovich that a preliminary hearing was scheduled on December 2, 2019 by the Justice of the peace of the Judicial district No. 5”.
b. The statement above in Ms. Vyazemskaya’s objection is consistent with Mr. Safin’s evidence that he sent Ms. Vyazemskaya an email on November 20, 2019. His evidence is that she was notified of every step in the Russian court proceedings. There are affidavits of service in respect of (i) personal service on December 12, 2019 on Vyazemskaya Tatiana Vladimirovna of a copy of the statement of Claim – about divorce and a subpoena for civil case, and (ii) personal service on January 25, 2020 on Vyazemskaya Tatiana Vladimirovna of a copy of the Divorce Decision.
I further note that the evidence is that Ms. Vyazemskaya received a copy of the Divorce Decision on January 25, 2020. Unlike the Novikova case, Ms. Vyazemskaya received a copy of the divorce decree within the applicable appeal period (30 days) and could have appealed the Divorce Decision.
For the reasons set out above, I decline to set aside the foreign divorce on the ground that the applicant did not receive notice.
Real and Substantial Connection
The applicant further argues that neither party had a real and substantial connection to Russia as both of them resided in Canada at all relevant times. As a result, the applicant argues that the foreign divorce should not be recognized.
In Wilson v. Kovalev, 2016 ONSC 163, the court, in considering whether a divorce granted in Peru should be recognized in Canada, stated (at para. 12):
“…Canadian courts expanded the grounds for recognition of foreign divorces to include the “real and substantial connection” test following the decision of the House of Lords in Indyka v. Indyka, [1969] 1 A.C. 33 (U.K.H.L.). In order to meet the real and substantial connection test, it is not necessary to demonstrate that the most real and substantial connection is with the granting country. A minimal connection to that country may be sufficient provided that the connection is not superficial in nature (Essa, Supra; Coutu v. Gauthier Estate, 2006 NBCA 16 (C.A.)).
In determining that the parties had a real and substantial connection with the country of Peru in Wilson, the court based its conclusion on the fact that both parties were born and raised in Peru; they were married in Peru; after the marriage they continued to live in Peru for about 2 years; the parties only lived in Canada for about six months before they separated; both parties continued to be Peruvian citizens at the time of the divorce; both parties had many extended family members living in Peru; both parties retained valid Peruvian national identification documents; the applicant likely was entitled to a state pension in Peru and the respondent was entitled to a state pension in Peru and had bank accounts in the country; the respondent had been back to Peru to visit family members at least twice since the divorce was granted. The court concluded that “these parties were more closely connected to Peru than to Canada when they initiated their divorce proceedings in Peru [on consent of both parties] and when the divorce decree was issued”.
- In Essa v. Mekawi, 2014 ONSC 7409, in addressing the real and substantial connection test, the court stated (at paras. 69 and 70):
“The case law indicates that the “real and substantial connection” test does not mean a determination of the “most real and substantial connection.” A minimal connection to the jurisdiction may suffice as long as it is not superficial (Coutu v. Gauthier Estate, 2006 NBCA 16). In this case, the parties and the girls had a definite, real and substantial connection to Egypt. There is nothing “weak” or “superficial” about their connection to Egypt, where the girls were habitually resident.
The burden is on the Applicant to convince the court to assume jurisdiction. “The party must establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum, or points only to a weak relationship between them” (Van Breda, para. 95). While there may be some connection to Ontario, on balance, the Applicant has not convinced this court that the connection with Egypt is “minimal or non-existent.” She has not provided enough evidence to convince this court to assume jurisdiction and I recognize the Egyptian divorce as valid and decline to accept jurisdiction over these proceedings.”
- Applying the test to this case, the applicant has not convinced me that the connection with Russia is minimal or non-existent. Although the parties are both now permanent residents of Canada, the parties were married in Russia, had their child in Russia, still have Russian citizenship, have extended family in Russia and own property in Russia.
Respondent’s Reasons for Seeking Divorce in Russia
The applicant’s submission is that the respondent obtained the divorce in Russia in order to avoid paying spousal support to the applicant. It is clear that the Divorce Decision does not address spousal support and, if the Divorce Decision stands, the applicant will be unable to seek spousal support in Ontario: Okmyansky v. Okmyansky, 2007 ONCA 427.
In his submissions, Mr. Safin correctly pointed out that none of the cases cited stated that if there was an intention to avoid spousal support by commencing divorce proceedings in another jurisdiction this would be sufficient to set aside the foreign divorce.
If a party intentionally sought a divorce in another jurisdiction for the purpose of avoiding payment of spousal support in Ontario, in my view this would be contrary to public policy and would be sufficient grounds to not recognize the foreign divorce.
In the Objection, the applicant stated: “Moreover, according to Canadian law, child support in Canada paid in a larger amount than provided for by the legislation of Russia and in addition, Canadian law provides for spousal support for a wife, which the plaintiff is trying to avoid by filing documents with the Russian court”. She further stated: “While I was trying to peacefully negotiate with the plaintiff and sign an agreement of separation in Canada, with adequate financial support from the plaintiff, due to the fact that, through the fault of the plaintiff, I now have no job and no opportunity to study, since I depend on the plaintiff’s income, the plaintiff decided to go to the court of Russia in order to avoid a proper financial support provided for by Canadian law”.
In her affidavit, the applicant stated: “It was in the Respondent’s best interest to have the divorce in Russia because in Russia the law does not give rights to the spouse to claim support in the matrimonial proceedings.” “The Respondent was aware of this law and proceeded to file for divorce in Russia to avoid the obligation to pay spousal support or else the Respondent would of [sic] filed for divorce in Ontario”. “The Respondent acted in bad faith and dilberately [sic] filed for divorce in Russia to avoid paying spousal support”.
The respondent’s evidence was that he was not trying to avoid spousal support obligations and that he sought the divorce in Russia due to his lack of understanding and knowledge of the Canadian legal system. He also continued to make “voluntary support payments (additional to child support) for a long time after separation and Russian divorce.”
Based on the record before me, there has not been a cross examination on the affidavits so the evidence is conflicting and untested.
Having read the affidavit evidence and heard the argument of the parties, and given the importance of this issue, I am not comfortable determining this issue on the written record before me. In my view, oral evidence and cross examinations are required so that the court may make the necessary findings of credibility. Accordingly, in order to ensure that the primary objective set out in Rule 2 of the Family Law Rules is satisfied, I have determined that there shall be a ½ day trial of an issue before me, which shall proceed as follows:
a. The evidence in chief shall be the affidavit evidence already filed on this motion.
b. There will be an opportunity for viva voce evidence by way of cross-examination and re-examination.
c. Each party will also be provided with an opportunity to make closing oral submissions.
- The parties shall coordinate with the family trial office to book the ½ day trial before me.
J. Steele J.
Date: September 1, 2021