COURT FILE NO.: FS-20-14738
DATE: 20221202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARZANA RATAN SONIA
Applicant/Responding Party
– and –
ABDUL HANNAN RATAN
Respondent/Moving Party
Obaidul Hoque, for the Applicant/Responding Party
Syed Kabir, for the Respondent/Moving Party
HEARD: September 6, October 4, November 3, 7 & 8, 2022[^1]
ENDORSEMENT
P.J. Monahan J.
I. Introduction
[1] The Respondent seeks various forms of relief, consequential on my July 18, 2022 Endorsement finding that the Applicant married a third party, Towfique Ahmed (“Towfique”), on May 24, 2020.[^2] In particular, the Respondent seeks the following:
a. An order setting aside the consent orders issued by me on March 30 and 31, 2021, (the “Consent Orders”) dealing with the validity of the March 17, 2017 Bangladeshi divorce between the parties (the “2017 Divorce”), on the grounds that the Respondent’s consent was vitiated by the Applicant’s misrepresentation that she had never married Towfique; and
b. in the event that the Consent Orders are set aside, the Respondent seeks a further order declaring that the 2017 Divorce is valid under the laws of Bangladesh and should be recognized for purposes of the Divorce Act[^3] and the Family Law Act,[^4] and for purposes of determining all issues in this proceeding, including in determining whether the Applicant’s claims for equalization of net family property is barred by the limitation period in s. 7 (3) of the Family Law Act.
[2] The Applicant opposes the relief sought by the Respondent. She argues that the Consent Orders should not be set aside since the Respondent knew about her marriage to Towfique at the relevant time and is simply attempting to resile from his earlier agreement. In the alternative, in the event that the Consent Orders are set aside, the Applicant seeks an order finding that the 2017 Divorce should not be recognized for purposes of Canadian law because of one or more of the following: (i) the 2017 Divorce never actually occurred and all of the divorce-related documents provided by the Respondent are fraudulent and/or forgeries; (ii) even if not an outright fabrication, the Respondent failed to follow the procedures required to obtain a divorce in Bangladesh; or (iii) even if the divorce is presumptively valid on its face, the 2017 Divorce is contrary to principles of natural justice and Canadian public policy, since the Applicant never got proper notice of it, and, in any event, the Bangladeshi divorce procedure which permits a husband to unilaterally divorce his wife (also known as a ‘talaq’ divorce) is fundamentally inconsistent with Canadian values.
[3] For the reasons set out below, I set aside the Consent Orders on two independent grounds, namely: (i) the Respondent’s consent to those Orders was vitiated by the Applicant’s misrepresentation that she had never married Towfique; and (ii) I would not have approved the Consent Orders had there been credible evidence in March 2021 that the Applicant had married Towfique.
[4] Having set aside the Consent Orders, I consider de novo the issues relating to the validity and recognition of the 2017 Divorce.
[5] Based on an analysis of the relevant evidence and law (including the legal framework governing divorce in Bangladesh), I find that the Applicant received proper notice of the 2017 Divorce, that there was no fraud involved in obtaining it, and that it became effective for purposes of Bangladeshi law in March 2017. I further find that the 2017 Divorce satisfies the common law principles governing the recognition of foreign divorces in Canada, in accordance with s. 22 (3) of the Divorce Act, and is therefore presumed to be valid for purposes of Canadian law. None of the grounds upon which a Canadian court may refuse to recognize a foreign divorce apply in the circumstances of this case.
[6] I therefore recognize the 2017 Divorce as valid under Canadian law, including for purposes of the Divorce Act and the Family Law Act. Moreover, because the 2017 Divorce became effective more than two years prior to the commencement of this proceeding in January 2020, and the Applicant has not pleaded or sought any extension in the limitation period in the Family Law Act, the Applicant’s claim for equalization of the parties’ net family property is barred by s. 7 (3) of the Family Law Act.
[7] Throughout this proceeding, I have been mindful of that fact that a finding that the parties were divorced in Bangladesh in 2017 will necessarily have significant consequences for the Applicant. Such a finding will mean that, despite having been married to the Respondent for two decades and the couple having three children together, she would have no claim for spousal support or equalization.
[8] This is obviously not an outcome to be arrived at lightly. It is precisely for this reason that I have devoted such a considerable amount of court time to this matter over an 18-month period, and prepared these lengthy and detailed reasons. Nevertheless, as I explain below, I find that the Applicant commenced this proceeding in bad faith, knowing full well that she had been previously divorced, and even went so far as to create fraudulent documents in an effort to obtain the relief she seeks from the Respondent. In these circumstances, the only legally appropriate and just outcome is to find the 2017 Divorce valid and enforceable in Canada, notwithstanding the fact that this will necessarily negatively impact the Applicant.
II: Background
[9] The background to this proceeding is complicated and is described in considerable detail in my July 2022 Endorsement. The key relevant circumstances can be summarized as follows.
i. The parties were married in Bangladesh on September 6, 1998. There are three children of the marriage: a son, SMR (born August 1, 1999), and two daughters, FRA (born November 30, 2001) and FRF (born January 5, 2005);
ii. The parties lived in Bangladesh throughout their marriage, until the Respondent and the parties’ three children obtained landed immigrant status in Canada in 2015,[^5] and the Applicant joined them in February 2017;
iii. The Respondent alleges that on November 17, 2016, while the parties were in Bangladesh, he delivered a written notice to the Applicant informing her of his intention to divorce her (the “Divorce Notice”), and that the 2017 Divorce became effective on March 17, 2017, in accordance with the relevant provisions of Bangladeshi law;
iv. On January 7, 2020, the Applicant issued an Application in this Court seeking a divorce and corollary relief from the Respondent under the Divorce Act and the Family Law Act.
v. In his Answer filed in early February 2020, the Respondent disputed the Applicant’s claims on various grounds, including that the parties had already been divorced in Bangladesh in March 2017.
vi. In her February 22, 2020 Reply, the Applicant argued, inter alia, that the Respondent’s claim that they had been divorced in Bangladesh was a fabrication and, in any event, that he had failed to follow the proper divorce procedure required under Bangladeshi law.
[10] It was agreed that a focused two-day hearing should be held to determine, as a preliminary matter, whether the 2017 Divorce had actually taken place and, if so, whether it should be recognized for purposes of Canadian law (the “Preliminary Issue”).
[11] When the matter came before me in March 2021, it quickly became apparent that, although the Preliminary Issue was framed in ostensibly narrow and specific terms, the factual and legal issues it raised were extremely complicated. In preparation for the March 2021 two-day hearing, the parties had filed thousands of pages of evidence and intended to call a significant number of witnesses, most of whom would be testifying from Bangladesh, in Bengali, with the assistance of an interpreter. After five days of oral evidence, the Court was still hearing from the first witness, the Respondent, and it appeared that it might well take weeks, if not longer, to hear all the evidence and submissions on the applicable legal principles.
[12] Given these challenges, at the outset of the second week of the hearing, I raised with the parties the possibility of a compromise resolution on the basis that, even if the 2017 Divorce was valid under Bangladeshi law, I might also find that it should not be recognized in Canada on grounds of public policy. I invited the parties to consider their positions in light of this potential or hypothetical compromise outcome.
[13] Later that day, the parties agreed to resolve a number of the issues in dispute largely along the lines I had suggested. This agreement provided the basis of the Consent Orders, the key elements of which were as follows:
i. the 2017 Divorce was valid under Bangladeshi law, and had not been obtained by fraud;
ii. While the parties did not agree on whether adequate notice of the 2017 Divorce was provided to the Applicant, it was agreed that the 2017 Divorce should not be recognized in Canada on grounds of public policy;
iii. Although still married for purposes of Canadian law as of the date of the Consent Orders, the parties were ordered to be divorced and this divorce order was severed from the corollary issues in the proceeding;
iv. The Applicant has a claim for equalization of net family property under the Act, and that entitlement was not barred by the limitation provisions of the Act;
v. The date of the parties’ separation was not yet determined (with the Applicant claiming it was December 22, 2018, and the Respondent claiming it was November 17, 2016); and
vi. The parties were directed to a Settlement Conference to address the remaining issues in dispute.
[14] I would note that just prior to the parties agreeing to these terms, the Respondent stated that he had learned that the Applicant had married Towfique in 2016. The Applicant denied having married Towfique and said that she would not discuss the matter unless the Respondent produced evidence in support of his assertion. The Respondent had no such evidence, and I directed that the matter would not be considered any further. The parties and the Court proceeded to approve the Consent Orders.
[15] However, at a follow-up Settlement Conference in August 2021, the Respondent advised that he had since obtained an affidavit from an individual who said he had attended a wedding between the Applicant and Towfique in 2020. As I explained in my August 27, 2021 Endorsement, if the Applicant had married Towfique, this would likely necessitate substantial amendment to the Consent Orders. This is because the Consent Orders provided, amongst other things, that the Applicant was still married to the Respondent on March 30, 2021, which could not be true if the Applicant was at that time also married to Towfique.
[16] I therefore indicated in August 2021 that before the litigation could proceed any further, the issue of whether the Applicant had married Towfique needed to be properly investigated. I directed the parties to produce evidence relevant to this issue and scheduled a return date to consider what further steps were necessary or appropriate.
[17] Over the following nine months, both parties filed voluminous documentary evidence, conducted questioning of each other as well as of a number of third-party witnesses, and appeared before me numerous times to deal with procedural and evidentiary issues. This culminated in a two-day oral hearing at the end of June 2022, following which I issued the July 2022 Endorsement, in which I found, on a balance of probabilities, that the Applicant married Towfique on May 24, 2020.
[18] By way of summary of that Endorsement, although I found that the Applicant had married Towfique, I also noted that the evidence tendered by the Respondent in support of this conclusion was not without its flaws and frailties. The Respondent had not attended the wedding himself and had to rely on the evidence of six individuals (the “Third-Party Affiants”), who said they had been there or had personal knowledge of the marriage between the Applicant and Towfique.[^6] The Third-Party Affiants were not able to recall many details about the wedding ceremony and there were certain inconsistencies between their accounts. They had difficulty explaining how they had sworn their affidavits that had been filed by the Respondent, as well as in identifying the location of the apartment building where the wedding had taken place.[^7]
[19] While these considerations are no doubt material in assessing the credibility of the Third-Party Affiants, it is important not to lose sight of the forest for the trees. The Applicant’s position was not that the Third-Party Affiants were mistaken on details such as where the wedding took place or who the guests were. Rather, the Applicant’s claim was that the Third-Party Affiants were lying and had simply fabricated a story about attending a wedding in order to assist the Respondent in the Ontario family law proceeding commenced by the Applicant.
[20] In light of the positions of the parties, only two conclusions were possible. Either the Third-Party Affiants had entirely fabricated this false claim about an imaginary wedding that never happened, or they were genuinely attempting to describe an event they attended two years ago previously, and of which their memory had significantly faded.
[21] While not entirely beyond doubt, on balance, I found the latter conclusion to be correct. The inconsistencies and/or gaps in the evidence of the Third-Party Affiants did not lead me to conclude that they were lying about the fact that the wedding took place. They testified in a straightforward and forthright manner, and admitted when they were unsure of, or could not recall, a particular fact or circumstance. None of them attempted to evade or deflect the questions that were being asked. Moreover, despite some inconsistencies as noted above, on the whole, their descriptions of the wedding were consistent with each other. They never wavered from their assertion that Towfique and the Applicant did marry each other.
[22] Moreover, the suggestion that the Third-Party Affiants were engaged in a conspiracy with the Respondent to deprive the Applicant of her claims in this proceeding does not accord with logic or common sense. The Third-Party Affiants had nothing to gain and no reason to lie about the wedding. To the contrary, the four who testified did so despite fearing for their safety, on account of threats they had received in the days prior. Moreover, most of them had no prior relationship with the Respondent, and thus no reason to conspire with him to advance his claims in this litigation. Conversely, most of them had prior close connections to Towfique — one is even married to Towfique’s brother — thereby making it all the more implausible that they would have betrayed Towfique by providing false testimony in this case. All of these considerations led me inescapably to the conclusion that the Third-Party Affiants were telling the truth when they said that they either attended this marriage or had personal knowledge of it.
[23] My July 2022 Endorsement also considered in some detail the circumstantial evidence in support of the conclusion that the Applicant married Towfique, none of which need be repeated.[^8] I also found the evidence of the Respondent to be largely credible, while that of the Applicant to be contradictory and not believable but, likewise, that need not be repeated either.
[24] One final but important observation is simply that the issue of whether the Applicant married Towfique is a collateral matter in this litigation. The subject matter of this proceeding is whether the Respondent and the Applicant were divorced, and whether any such divorce should be recognized in Canada. The separate issue of whether the Applicant later married Towfique has been considered only insofar as it is relevant to determining whether the Consent Orders should be set aside and as one of many factors in analyzing the applicability of the public policy ground for refusing to recognize a foreign divorce. But it is important that the discussion of this collateral matter not distract the court or the parties from the true subject matter of the litigation.
III: Issues
[25] The following issues arise for decision in this proceeding:
i. Should the Consent Orders be set aside, with the result that the validity and recognition of the Divorce should be considered de novo?
ii. Did the 2017 Divorce between the parties actually take place, as claimed by the Respondent, or is it a fabrication based on forged and/or fraudulent evidence, as claimed by the Applicant?
iii. If the Divorce did take place, does it satisfy the common law principles governing recognition of a foreign divorce, pursuant to s. 22 (3) of the Divorce Act?
iv. Should the Court refuse to recognize the Divorce on any of the following grounds:
On grounds of natural justice, on the basis that the Applicant never received notice of the divorce; or
On any other ground of public policy.
v. If the Divorce is valid and recognized for purposes of Canadian law, are the Applicant’s claims for equalization of net family property barred by the limitation period in s. 7 (3) of the Act?
IV: Applicable Legal Principles
a. Test for Setting Aside Consent Orders
[26] Both the Family Law Rules (the “Family Rules”) and the Rules of Civil Procedure (the “RCP”) include provisions permitting a court order to set aside an order previously made.
[27] Rule 25 (19) of the Family Rules provides in relevant part that a court may change an order that “was obtained by fraud” or that “contains a mistake”. Rule 25 (19) is also to be read in light of the “Primary Objective” of the Rules, as set out in Rule 2 (2), which is that cases be dealt with justly.
[28] Rule 59.06 (2) (a) of the RCP provides that a court may set aside or vary an order on grounds “of fraud or of facts arising or discovered after it was made”. Where the Family Rules do not cover a matter adequately, Rule 1(7) allows a court to resort to the RCP by analogy where appropriate. Pursuant to this Rule, recent jurisprudence from this Court suggests that a court may resort to Rule 59.06 (2) (a) if the matter is not adequately covered by Rule 25 (19) of the Family Rules.[^9]
[29] Of particular importance in the present case is that the Consent Orders were made on consent rather than as a result of an actual adjudication on the merits. It is well established that the test for setting aside an order obtained on consent differs from that applicable in cases where there has been a judicial determination on the merits.[^10] Because the basis for a consent order is simply the parties’ agreement, such an order may also be set aside on the same grounds as the underlying agreement that gave rise to it.[^11] These grounds include fraud, misrepresentation, common mistake, or any other grounds which would invalidate a contract.[^12]
[30] In the civil context, fraud is a false representation of fact made either with knowledge of its falsehood or recklessly without belief in its truth, with the intention that it should be acted upon, and inducing the complaining party to act upon it. Thus, civil fraud is proved where it is established that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly careless whether it is true or false, with an intention to and in fact inducing action on the part of the party to whom the false representation was made.[^13]
b. Recognition of Foreign Divorces under the Divorce Act
[31] Section 22 of the Divorce Act provides for the recognition of foreign divorces in Canada. Section 22 (3) expressly upholds the common law principles applicable to the recognition of foreign divorce. In Novikova v. Lyzo, the Court of Appeal adopted the following summary of these common law principles, as set out in Payne on Divorce:[^14]
Canadian courts will recognize a foreign divorce: (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.
[32] The test for a “real and substantial connection” in the above passage requires a significant connection between the cause of action and the foreign jurisdiction. This connection can be established where a party “has participated in something of significance or was actively involved in that foreign jurisdiction”.[^15] More traditional indicia of jurisdiction, such as residence and presence in the foreign country, bolster the chances of finding a real and substantial connection, but they are not required.[^16] A minimal connection may suffice as long as it is not superficial.[^17] It is a low bar.[^18] Factors that have led courts to find a real and substantial connection include historical residence in the foreign country and recent emigration; having extended family still residing there; getting married in the jurisdiction; and maintaining other ties, such as bank accounts, property ownership, national identification documents, and citizenship.[^19]
[33] When a real and substantial connection is established, or one of the other criteria mentioned above is met, a foreign divorce is presumed to be valid for purposes of Canadian law and the grounds upon which it should not be recognized are limited.[^20] Thus, Canadian courts will generally not inquire into whether a divorce was obtained in compliance with the law of the foreign jurisdiction. The substantive grounds upon which a foreign divorce was granted, including whether the legal requirements applicable in that jurisdiction were properly followed, is a matter to be pursued before the courts of that jurisdiction, rather than Canada.[^21] Though there are some exceptions to this rule,[^22] none are applicable in the circumstances.
[34] The need to recognize foreign decisions, including the way foreign countries grant divorces, is rooted in the principle of comity. Comity is further rooted in the principles of territoriality and reciprocity. If we expect judgments from Canadian courts, applying Canadian law, to be recognized abroad, Canadian courts must, in turn, respect the jurisdiction of foreign courts in applying their own laws.[^23] There would be great uncertainty and a lack of finality if parties were permitted to re-litigate issues already decided in foreign jurisdictions again in Canada, requiring domestic courts to interpret and apply foreign law over which they have no jurisdiction. Respect and recognition of foreign judgments is imperative in the modern, highly integrated world; it ensures order, fairness, and “security of transactions with justice”.[^24] Moreover, a refusal to recognize divorces validly obtained in foreign jurisdictions could create significant uncertainty in the marital status of anyone from such jurisdictions seeking to immigrate to Canada, and who had previously been divorced in accordance with local law in the foreign jurisdiction. This would be inconsistent with long-standing principles of Canadian immigration policy, designed to remove barriers to immigration from countries with legal traditions different from our own.[^25]
[35] Though these principles originate in discussions of recognizing foreign judgments, they are just as readily applicable where foreign laws provide for procedures that do not involve court intervention, such as the bare talaq method of divorce in Bangladesh. As is described below, Bangladesh has opted to allow for divorce without any court intervention. The principle of comity requires that this foreign divorce process be recognized, just as we would expect a divorce granted in Canada to be recognized abroad.
[36] In this context, the limited grounds upon which a Canadian court may refuse to recognize a foreign divorce can be summarized as follows:
i. the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country;
ii. there was fraud involved in the granting of the divorce going to the jurisdiction of the granting authority;
iii. there was a denial of natural justice, including the absence of notice; or
iv. the foreign divorce is contrary to Canadian public policy.[^26]
c. Expert Evidence on the Legal Framework Governing Divorce in Bangladesh
[37] There were three experts who provided opinions on the legal framework governing divorce in Bangladesh: two on behalf of the Applicant,[^27] and one from the Respondent.[^28] Although the experts disagreed on certain matters, they were in general agreement as to the applicable requirements in cases where a husband seeks to dissolve a marriage through pronouncement of ‘talaq’.[^29]
[38] In particular, all three of the experts agreed that a talaq divorce is governed by section 7 of the Muslim Family Laws Ordinance 1961 (the “MFLO”). Section 7 requires that the divorcing husband give written notice of his intention to divorce to the Chairman/Mayor of the concerned local municipality and to provide his wife with a copy of the notice. The law further provides that upon receipt of such a notice of divorce, the Chairman shall, within 30 days, constitute an Arbitration Council for purposes of reconciliation between the parties. The talaq becomes effective (i.e., the parties are legally divorced) after the expiry of 90 days from receipt of the divorce notice by the Chairman, unless, within that 90-day period, the talaq is revoked or the parties reconcile.
[39] One of the Applicant’s experts, Dr. Hoque, provided a helpful description of the legislative intent underlying s. 7 of the MFLO. Dr. Hoque noted that prior to the enactment of this provision in 1961, a Muslim husband had a unilateral and apparently unbridled power to divorce his wife. The 1961 legislative reforms attempted to take a balanced approach by retaining the husband’s wide power to divorce but providing the wife with an opportunity to take part in the process. For this reason, the divorce does not take effect until the expiry of 90 days after notice being sent to the Chairman, who will form an Arbitration Council with the duty to attempt a reconciliation between the parties. The legislation “clearly contemplates a machinery of conciliation whereby a husband wishing to divorce his wife unilaterally may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses… The objective of s. 7 is to prevent hasty dissolution of marriages by the husband, unilaterally, without an attempt being made to prevent disruption of the matrimonial status.”[^30]
[40] Despite the important role attributed to the Arbitration Council in attempting to effect a reconciliation between spouses, it appears that in most cases, this requirement is not in fact followed.[^31] There were some differences of opinion between the experts as to whether the failure of the Chairman to constitute an Arbitration Council would invalidate a divorce. However, the Respondent’s expert, Md. Chowdhury, and one of the Applicant’s experts, Dr. Hoque, agreed that the failure of the Chairman to constitute such a Council would not render a divorce invalid, and I accept their opinions on this issue.
[41] A separate statute, the Muslim Marriages and Divorces (Registration) Act 1974, provides for the registration of divorces by a Nikah Registrar. Such registration is made upon application by the person effecting the divorce, but such registration is not required for the divorce to become effective. In cases where such an application is made, the Nikah Registrar’s duty is to register the divorce when satisfied that the concerned divorce has been duly effected by the relevant party.
V: Should the Consent Orders Be Set Aside?
[42] In my view, there are two independent grounds upon which the Consent Orders should be set aside and the matters in question should proceed to adjudication on the merits:
i. the Respondent’s consent was vitiated by fraud, namely, the Applicant’s misrepresentation that she never married Towfique; and
ii. even if the test for fraud were not met, the Consent Orders should be set aside due to facts discovered after it was made. The Consent Orders were issued on the basis that there was no credible evidence in support of any alleged marriage between Towfique and the Applicant and, had any such credible evidence been known at the time, the Court would not have approved and issued the Consent Orders.
[43] In arriving at my decisions under both Rule 25 (19) of the Family Rules and Rule 59.06 (2) (a) of the RCP, I have considered the Primary Objective of the Family Rules under Rule 2 (2) to “enable the court to deal with cases justly”. Rule 25 (19) must be interpreted in keeping with this Primary Objective[^32] and, by analogy, in my analysis under Rule 59.06 (2) (a).[^33]
[44] I consider both of these grounds below.
a. The Consent Orders Should Be Set Aside Because the Respondent’s Consent was Vitiated by the Applicant’s Misrepresentation That She Never Married Towfique
[45] Just prior to the Consent Orders being agreed to, the Applicant denied ever having married Towfique. Since I have found that she did in fact marry Towfique in May 2020, her statement to the contrary is a misrepresentation that was intended to be acted upon, and was in fact acted upon, when the Respondent agreed to the Consent Orders. He would not have agreed to the Consent Orders had he known about this marriage. This falls squarely within the definition of civil fraud described earlier, namely, a knowingly false representation made with an intention to induce, and, in fact, inducing action on the part of the party to whom the false representation was made.
[46] The Applicant says that the Respondent was already aware at that time that she had married Towfique, and yet proceeded to agree to the Consent Orders anyway. But what the Respondent appeared to believe at that time was that the Applicant had married Towfique in 2016. This was clearly incorrect since it is agreed that, at that time, the Respondent and the Applicant were still married. The Respondent had no evidence of the actual May 2020 marriage between the Applicant and Towfique.
[47] Where a party in a family law proceeding makes a deliberate material misrepresentation, there is no onus on the other party to investigate the matter or to test the veracity of the information provided.[^34] Here, the Applicant categorically denied having married Towfique and said that she would not discuss the matter further unless he produced evidence in support of his assertion. This denial was an attempt by the Applicant to shift the onus onto the Respondent of proving that her denial was false, whereas the onus was actually on her to advise the Respondent and the Court of the actual facts.
[48] I would therefore set aside the Consent Orders on the basis of Rule 25 (19) of the Family Rules.
b. The Consent Orders Were Issued on the Basis That There Was No Credible Evidence in Support of Any Alleged Marriage Between Towfique and the Applicant and, Had Any Such Credible Evidence Been Known at the Time, the Consent Orders Would Not Have Been Approved and Issued
[49] The Consent Orders originated in a suggestion of a potential compromise resolution advanced by the Court (rather than the parties) on March 29, 2021. The parties considered their positions and subsequently agreed to the terms of the compromise resolution that had been put forward by the Court.
[50] Although, as noted above, the issue of whether the Applicant married Towfique was briefly discussed on March 29, 2021, there was, at that time, no credible evidence in support of any such marriage. Moreover, the Respondent’s claim in March 2021 was that the Applicant had married Towfique in 2016. This clearly could not have been the case since it was agreed that in 2016 the parties continued to be married to each other. There was thus no reason to investigate the matter. After hearing from the parties, I directed that the issue of whether the Applicant had married Towfique would not be considered any further.
[51] What this makes plain is that, had there been credible evidence of a marriage between the Applicant and Towfique in March 2021, the Consent Orders would not have been approved and issued by the Court. This is confirmed by my Endorsement of August 27, 2021, which was issued in response to the Respondent producing an affidavit from an individual stating that he had attended a 2020 wedding between the Applicant and Towfique. Given that there was now prima facie credible evidence suggesting that the Applicant might well have married Towfique, I directed in that Endorsement that this matter needed to be addressed as a priority before any of the remaining issues in the litigation could be considered. I also explained that if the Applicant had indeed married Towfique, the Consent Orders would likely require amendment, since they provided that the Applicant was at that time married to the Respondent, which could not have been true if she was also married to Towfique.
[52] It necessarily follows that, had such prima facie credible evidence been available in March 2021, I would neither have proposed the terms of the Consent Orders, nor would I have ruled that the issue of the alleged marriage between the Applicant and Towfique was not to be considered any further. Instead, I would have required that appropriate inquiries be made into the matter, which is precisely what I did in August 2021 when the Respondent produced credible evidence on the issue. The Respondent also naturally would not have entered the agreement if I had not directed the parties to resolve these issues amongst themselves and if he was, in fact, aware that there was evidence of the May 2020 marriage.
[53] I would therefore set aside the Consent Orders on the basis of Rule 59.06 (2) (a) of the RCP, namely, that due to facts discovered after the orders were made, which, had they been known at the time, would have resulted in the orders not being issued. I note that this second ground for setting aside the Consent Orders, unlike the first described above, applies regardless of whether the Applicant in fact married Towfique: it is enough that there was evidence to that effect.
[54] In any event, the Consent Orders can also be set aside pursuant to the Court’s inherent power at common law to set aside an order based on new or newly discovered facts to prevent a miscarriage of justice. In West v. West, Perkins J. set out the common law test to be met in setting aside or changing an order based on this inherent jurisdiction and relied on it in the context of deciding whether to set aside a temporary order.[^35] This test is clearly made out here. Had the evidence of the Applicant’s remarriage been available at the time, even without my finding that the marriage did, in fact, take place, I would neither have suggested the terms of the Consent Order, nor would the Consent Orders as drafted have been approved.
[55] This result is consistent with the Primary Objective of the Family Rules. The Consent Orders no longer provide a legitimate or just basis upon which to resolve the significant remaining issues in this litigation. Both parties now strongly dispute various aspects of the Consent Orders. The Consent Orders state that the parties were divorced pursuant to the laws of Bangladesh and that there was no fraud involved, yet the Applicant maintains that the Respondent’s claims that the parties were divorced in Bangladesh are entirely fraudulent. The Consent Orders also provide that the Divorce should not be recognized in Canada, but the Respondent maintains that the Divorce should be recognized in Canada since it was obtained properly, and that this entire litigation has proceeded on the basis of the Applicant’s false claims that they were never divorced.
[56] The Consent Orders did not resolve all the issues in the litigation. Yet given the fundamental and irreconcilable differences in the respective positions of the parties on the very matters that are the addressed in the Consent Orders, I see no reasonable basis upon which this litigation can be continued on that basis. I further note that the effect of setting aside the Consent Orders is simply to require that all the issues in this litigation be considered de novo, with both parties having the right to advance any of the claims set out in their pleadings. Nor would setting aside the Consent Orders involve reopening litigation that has previously been finally settled, since a number of issues remained unresolved and the litigation continued despite the Consent Orders. On the other hand, if the Consent Orders are allowed to stand, the parties and the Court will be precluded from seeking a judicial determination on matters upon which there continues to be a fundamental disagreement.
[57] In my view, this would not be a just result and would be inconsistent with the Primary Objective of the Family Rules. It necessary follows that the Consent Orders must be set aside and the relevant matters must be considered de novo by this Court.
VI: Did the 2017 Divorce Between the Parties Actually Take Place, As Claimed by the Respondent, or Is It a Fabrication Based on Forged and/or Fraudulent Evidence, As Claimed by the Applicant?
[58] The central issue in this litigation is simply whether the 2017 Divorce actually took place. I note that there is a fulsome record before the Court on the issue. In addition to the many thousands of pages of documentary evidence filed by each of the parties, the Court heard four days of viva voce evidence from the Respondent in March 2021 (including close to two full days of cross-examination), and on November 7, 2022, the Respondent was cross-examined on his self-declared marital status in his tax returns. The Court also heard viva voce evidence in November 2022 from the parties’ two adult children, SMR and FRA. FRA was also cross-examined.
[59] I set out below the evidence most relevant to the issue of whether the 2017 Divorce actually took place, followed by my analysis and findings. Before I do so, however, I make the following general observation that should be borne in mind in considering the discussion that follows.
[60] There are only two potential outcomes on the issue of whether the parties were divorced in Bangladesh in 2017: either they were divorced, or they were not. Moreover, if they were divorced, then the Applicant must be lying, whereas if they were not divorced, then the Respondent must be lying.
[61] This follows from the respective positions of the parties in this litigation. Neither claims that there was any confusion or doubt between them as to whether they were actually divorced in 2017. On the one hand, the Respondent says he handed the Divorce Notice to the Applicant in person on November 17, 2016; that they were both aware that the 2017 Divorce became effective in March of 2017; and that, despite the fact that they resided in the same apartment with their children until December 2019, the Applicant knew that they had been divorced.
[62] On the other hand, the Applicant is equally clear that the parties were never divorced in Bangladesh. She denies that the Respondent handed her the Divorce Notice on November 17, 2016. She says that all the divorce-related documents produced by the Respondent are frauds, prepared in collusion with the local Nikah Registrar (the “Registrar”), whom he bribed. The 2017 Divorce alleged by the Respondent never happened, and she and the Respondent were still legally married when she commenced this proceeding in January 2020.
[63] In short, not only do the parties take diametrically opposed positions on whether the 2017 Divorce ever took place, but they also each claim that the other is lying about it. Obviously, only one of them can be right. The further inevitable corollary is that the one who is wrong is not only wrong, but must also be lying.
a. Respondent’s Evidence
[64] The Respondent testified that, in November 2016, he decided to divorce the Applicant because he believed she was carrying on an affair with Towfique. He went to the office of the local Nikah Registrar (the “Registrar”), who assisted him in preparing the required divorce notice (the “Divorce Notice”). He signed the Divorce Notice, left a copy with the Registrar, couriered a copy to the Applicant at her parents’ residence (where she was staying at the time), and couriered a copy to the Mayor of Brahmanbaria.
[65] The Respondent said that he and the Applicant were planning to take a flight to India that evening. He therefore also took a copy of the Divorce Notice with him to the airport to give to her in person. When they met at the airport at about 7 p.m. that evening, he told the Applicant that he intended to divorce her and gave her a copy of the Divorce Notice.
[66] The parties then called their children in Toronto to inform them of the fact that they were getting a divorce. They assured the children that they would try to work together to ensure as little disruption to the children’s lives as possible.
[67] As is described in more detail below, until very recently, the Applicant has maintained that they took a morning flight to India on that day and thus the Respondent could not have delivered the Divorce Notice to her prior to their flight. In support of his version of events, at the hearing in March 2021, the Respondent provided a letter from the Superintendent of Police Immigration at the Hazrat Shahjalal International Airport, confirming that the parties had both left on an evening flight to India on November 17, 2016.
[68] The Respondent had previously sponsored the Applicant’s application for an immigrant visa to Canada under the spousal sponsorship category. Despite the fact that they were separated and about to be divorced, the Respondent concluded that it would be in the children’s best interests if the Applicant could join them in Canada. He therefore continued his sponsorship of the Applicant’s immigration to Canada under the spousal sponsorship category. The immigration application was subsequently approved by Citizenship and Immigration Canada, and the Applicant arrived in Canada as a landed immigrant on February 24, 2017.
[69] The Respondent says that after the Applicant arrived in Canada, she resided with him and their three children in Toronto, initially in a two-bedroom apartment and later in a three-bedroom apartment. However, although they were all living in the same apartment, the Respondent says that he and the Applicant were sleeping in separate rooms and lived separate lives. Nevertheless, at the request of their children, the Respondent and the Applicant attended significant family celebrations together, including the children’s birthdays, and photographs were taken on these occasions.
[70] The Respondent says there was neither reconciliation between the parties, nor a withdrawal of his Divorce Notice, and that on March 17, 2017, the 2017 Divorce was registered by the Registrar. On June 15, 2017, the Respondent obtained a divorce certificate (the “Divorce Certificate”) confirming that the 2017 Divorce became effective on March 17, 2017 and setting out particulars of its registration.
[71] The Respondent says that, following their divorce, he and the Applicant continued living as separated couples in the same apartment with their children until December 22, 2019, when the Applicant unilaterally decided to leave. He says that she did not provide any details of her whereabouts either to him or to the children and they did not know where she had gone. Then, the Respondent learned that, on December 27, 2019, the Applicant had registered Matrimonial Home Designations on two properties which he had purchased in 2017 and, in early January 2020, he received a copy of the Application issued in this proceeding.
[72] The Respondent says that after receiving the Application, on January 28, 2020, his counsel brought to the attention of Applicant’s counsel the fact that the parties had been divorced in Bangladesh in 2017. His counsel then received, from Applicant’s counsel, a document which appeared to be a certificate from the Registrar (the “Registrar’s Attestation Certificate”), stating that the Divorce Certificate which the Respondent says he had obtained from the Registrar was in fact a forgery.
[73] The Respondent says that, upon receiving the Registrar’s Attestation Certificate, he contacted the Registrar and provided him a copy of the document received from the Applicant. The Registrar advised the Respondent that the Registrar’s Attestation Certificate was itself a forgery which he had never signed. The Respondent subsequently obtained an affidavit from the Registrar (the “Registrar’s Confirmation Affidavit”) stating that the Applicant and the Respondent were divorced on March 17, 2017, that the Divorce Certificate was genuine, and that the Registrar’s Attestation Certificate had been manufactured by some unscrupulous people who had forged his signature and office letterhead.
[74] The Respondent also filed affidavits from the parties’ two adult children, SMR and FRA (the “Adult Children”). In those affidavits, the Adult Children stated that their parents told them in November 2016 that they were divorcing; that they learned that their parents’ divorce became effective in March 2017; that during the time that they were living with their parents in Toronto between 2017 and 2019, they knew that their parents had been divorced; and that they each spoke with their mother in March 2020, at which time she acknowledged that she had made false allegations against the Respondent in this proceeding and had also created forged documents in an attempt to win the case.
[75] The Respondent also provided his income tax returns for 2017 and 2018 filed with the Canada Revenue Agency (the “CRA”), showing his marital status as “Divorced”. However, he also provided documents indicating that, in February 2020, he had applied to the CRA to change his marital status. The Respondent’s accountant was then directed to provide an affidavit explaining this change in the Respondent’s marital status. The accountant’s affidavit stated, inter alia, that when originally filed, the Respondent’s 2017 and 2018 tax returns had shown his marital status as “Married”.
[76] Upon receiving this information, I granted leave to the Applicant to cross-examine the Respondent on this issue. During this cross-examination on November 7, 2022, the Respondent maintained that, prior to early 2020, he had been unaware of the fact that the original versions of his tax returns had shown his marital status as “Married”. He stated that he only became aware of this mistake when he was applying to refinance the properties which he had purchased in 2017. The Respondent was also questioned as to why the Applicant’s tax returns, prepared by the same accountant, showed her marital status to be “Married”. The Respondent indicated that the Applicant’s tax returns had been prepared by the accountant solely on the Applicant’s instructions, and thus he could not explain why those returns had stated that she was married. Nor could he explain how his income for these tax years was identical to the income reported on the Applicant’s tax returns.
[77] Finally, just prior to the argument of this motion in November 2022, the Respondent provided a letter from the Mayor of Brahmanbaria confirming that her office had received the November 2016 Divorce Notice. The Mayor’s recent letter replaced an earlier letter from her dated December 31, 2020, stating that the Divorce Notice could not be located. The more recent letter from the Mayor explained that they had found the Divorce Notice by undertaking a further search of their records.[^36]
b. Applicant’s Evidence
[78] The Applicant describes the Respondent’s claims regarding the 2017 Divorce as a “charade of a fake divorce”, staged by the Respondent for the sole purpose of defeating her spousal support and other economic claims in Canada. Nevertheless, as described below, the Applicant’s description of how this “charade” was carried out has shifted significantly over time.
[79] In her February 22, 2020 Reply, the Applicant said that the first time she found out about the 2017 Divorce was when she received fake and fraudulent divorce documents from the Respondent on January 28, 2020. The Applicant maintained that, prior to that date, she had never received the Divorce Notice from the Respondent, nor had the parties ever been divorced. To the contrary, they had lived together as man and wife until their separation on December 22, 2018 (the date of separation set out in her Application).
[80] The Applicant also said, in her February 22, 2020 Reply, that the Respondent had offered the Registrar a bribe equivalent to C$7600 in return for the Registrar issuing a letter falsely confirming the validity of the fraudulent divorce and preparing a fake registration book purporting to show that the divorce had been duly registered. However, the Registrar refused this bribe and confirmed to the Applicant that the divorce documents provided by the Respondent were forged.
[81] The Applicant then commenced two legal proceedings in Bangladesh on September 1, 2020, relating to the alleged fraudulent divorce claims of the Respondent. However, as described below, the facts as pleaded in these proceedings were quite different from those set out in the February 22, 2020 Reply.[^37]
[82] The first proceeding was a Criminal Complaint filed September 1, 2020 in Dhaka, Bangladesh (the “Criminal Complaint”), seeking to have the Respondent and the Registrar both charged with fraud for having created forged documents. However, in contrast to her February 2020 Reply (in which she had claimed that she had no knowledge of the 2017 Divorce until January 28, 2020), in her Criminal Complaint, she said that she had first learned of the alleged divorce on January 9, 2020, when she obtained a copy of the Divorce Certificate. The Applicant said that this document had been fraudulently created by the Respondent in collusion with the Registrar.
[83] The Criminal Complaint then asserted that the Applicant had returned to Bangladesh on January 16, 2020 and attended on that day at the Registrar’s office. Despite having previously colluded with the Respondent in preparing this fraudulent Divorce Certificate, the Registrar told the Applicant that the Divorce Certificate was a fake, and that the registration book referred to in the Divorce Certificate did not exist. The Registrar agreed to provide the Applicant with a certificate confirming these facts.
[84] On February 12, 2020, the Applicant’s parents attended at the Registrar’s office to receive the promised certificate, and the Registrar gave her parents the Registrar’s Attestation Certificate. But then, the Registrar colluded with the Respondent, and together they created a fake registration book purporting to show that the 2017 Divorce had in fact been duly registered.
[85] The Applicant also commenced a Civil Suit in Bangladesh on September 1, 2020 against both the Respondent and the Registrar (the “Civil Suit”), pleading facts broadly similar to (but different in certain material respects) from those set out in the Criminal Complaint. The Civil Suit said that when the Respondent had learned of her divorce proceeding in Ontario, he colluded with the Registrar to create the Divorce Certificate. On January 16, 2020, the Applicant’s lawyers were informed by the Registrar’s office that there was no record of the Divorce Certificate and no registration book confirming the 2017 Divorce, and, on February 12, 2020, the Registrar provided the Registrar’s Attestation Certificate confirming that the Divorce Certificate was a fraud. Then, the Registrar reversed course and, together with the Respondent, created a false and forged registration book purporting to confirm the registration of the 2017 Divorce. On March 15, 2020, her lawyers went to the Registrar’s office and found this fake registration book. The Civil Suit sought a declaration that the Divorce Certificate and the fake registration book were forgeries and had no validity.
[86] In late November 2020, the Applicant submitted in this Court her materials for the motion on the Preliminary Issue (the “Applicant’s November 2020 Materials”). The Applicant’s November 2020 Materials reverted to the original claim advanced in her February 22, 2020 Reply, namely, that the first time she had learned of the fake Divorce Certificate was when she received it from the Respondent’s lawyer on January 28, 2020. The Applicant also said that her family members met with the Registrar on February 12, 2020. The Registrar told her parents that the Divorce Certificate was totally fabricated and gave them the Registrar’s Attestation Certificate. The Registrar then reversed course and accepted a bribe equivalent to C$7600 in return for providing an affidavit stating that the Registrar’s Attestation Certificate was a fraud. But then, the Registrar reversed course a second time on March 15, 2020, when he told a team of eight lawyers working for the Applicant that the Divorce Certificate was a fake and there was no registration book referencing the Divorce Certificate.
[87] The Applicant’s November 2020 Materials also said that the Divorce Notice had never been received by the Brahmanbaria Mayor’s office, nor had she or her parents ever received it. She specifically denied having received the Divorce Notice from the Applicant at the Dhaka airport on the evening of November 17, 2016, prior to the parties taking a flight to India. She claimed that the parties had taken a morning flight to India that day, and that it was therefore impossible for the Respondent to have obtained the Divorce Notice from the Registrar’s office and brought it with him to the airport. The Applicant further alleged that the letter from the Police Superintendent of Immigration at the airport, purporting to show that they had left on an evening flight rather than in the morning, was fraudulent. The Applicant also claimed that courier receipts which the Respondent had submitted as evidence of the fact that he had sent the Divorce Notice to the Mayor were fraudulent.
[88] The Applicant’s November 2020 Materials also noted that, on September 1, 2020, she had filed the Criminal Complaint against the Respondent and the Registrar, and that the court in Bangladesh had appointed a police officer to investigate the matter. However, the Applicant claimed the police investigator had been bribed by the Respondent and, accordingly, had prepared a false report that found that there was no merit to her complaint. The Applicant said she had made an application to the Chief Judicial Magistrate in Dhaka seeking to have the police investigator’s report set aside, and that the matter was scheduled to be heard by the Dhaka court on February 24, 2021.[^38]
[89] The Applicant also stated that she and the Respondent had continued to live together in the same apartment in Toronto long after the date of their purported divorce. She described the idea that a Muslim man, who had purportedly divorced his wife for adultery, would continue to live with her and provide financial support, as “simply bizarre”. The Applicant said that the mere suggestion that a man would do that would be deemed offensive in Bangladesh.
[90] The Applicant also claimed that the Respondent had forced their Adult Children to provide false affidavits supporting his case. According to the Applicant, the Respondent had threatened to kick the children out their apartment and to stop paying their tuition if they didn’t provide these false affidavits. She also claimed that the children are at the mercy of the Respondent, a violent man, and they risk “unspeakable abuse” if they do not comply with his commands. Since the affidavits of the Adult Children had clearly been manipulated by the Respondent, no weight should be attached to them.
[91] In her February 22, 2020 Reply, the Applicant also said that she had never broken the law in her entire life, and that she had no criminal record. Although she had been arrested once, that was only because the Respondent had lodged a false complaint against her.
[92] In her October 18, 2022 Affidavit, the Applicant noted that, in four different criminal proceedings in Bangadesh dating back to 2017, the Respondent had referred to her (or she was otherwise identified) as his wife.[^39] She also said that in his tax filings with the CRA up until February 2020, the Respondent had declared his marital status as “Married”.
[93] Finally, I note that the Applicant recently altered her position on two matters: (i) the date of the parties’ separation; and (ii) the timing of the parties’ flight to India on November 17, 2016.
[94] With respect to the first issue, the date of the parties’ separation, in her Application, the Applicant had stated that the parties were separated on December 22, 2018. However, in her most recent affidavits filed in October and November 2022, the Applicant claimed that the parties had actually separated on December 22, 2019. She further claimed that the separation date of December 22, 2018 mentioned in her Application was a mistake on the part of the lawyer who had filed those materials.
[95] With respect to the second issue, the timing of the parties’ flight to India on November 17, 2016, as noted above, the Applicant had previously stated that the parties took a morning flight that day. However, in her October 18, 2022 affidavit, the Applicant acknowledged that the flight to India on November 17, 2016 was in the evening. She said she had been “a little confused” on the matter, since there were some flights to India that they used to take in the morning. However, the Applicant claimed that nothing turned on this mistake because she had always claimed that they had travelled to India together on that date.
c. Evidence of the Parties’ Adult Children
[96] As noted above, the Respondent filed affidavits from the parties’ two Adult Children stating, inter alia, that the Applicant had received notice of the 2017 Divorce in 2016 and was aware of the fact that the Divorce became effective in 2017. The Applicant maintained that the Respondent had forced their Adult Children to provide these affidavits and that the statements they made were untrue.
[97] I concluded that it was not possible to determine the appropriate weight to be given to these affidavits without hearing directly from the Adult Children. I therefore ordered them to provide viva voce evidence and to be made available for cross-examination. The Applicant, through her counsel, did not oppose the Adult Children being called to give evidence. However, the Applicant indicated that she did not wish to cross-examine the Adult Children, in the interest of preserving her relationship with them to the greatest extent possible.
[98] In his evidence, SMR stated that he is currently 23 years old and in the fifth and final year of a computer science degree at the University of Toronto. He also has a part-time internship with a private company performing data analysis, which pays him $60,000 per year. He expects to graduate from the computer science program in May 2023.
[99] SMR stated that he had not been pressured by his father into providing his September 2020 affidavit. His father had not threatened him or forced him to provide the affidavit. Although SMR still lives with his father and his two sisters, his father was in Bangladesh at the time of his testimony, and he confirmed that he had not spoken with either of his parents about the case since receiving the court order to testify. He confirmed that he was telling the truth to the best of his knowledge.
[100] SMR confirmed that the statements made in his September 10, 2020 affidavit were true. In that affidavit, he had said that he and his sisters had received a call from their father on or about November 17, 2016, informing them that it was not possible for him to continue with his marriage to their mother and that he had sent a divorce notice to her. SMR and his sisters then spoke to their mother, who confirmed that she had received the Divorce Notice. Their parents assured the children that they would work together to ensure the least disruption in their lives. In his viva voce testimony, SMR said that this telephone call had taken place early in the morning (Toronto time) on November 17, 2016.[^40] He said that he had spoken to both of his parents on the call, and that both of them had confirmed that his mother had received the Divorce Notice from his father.
[101] SMR said that both his parents later told him that their divorce became effective on March 17, 2017. However, despite the fact that they were divorced, his mother continued to live with them in their apartment, although their parents slept in separate rooms. SMR also explained that the children had asked both parents to celebrate birthdays and other family events together, and that, because of that request, the parents did so.
[102] SMR said that their mother abandoned them when she left the home on December 22, 2019. He later learned that she had commenced a family court application against their father. In a March 2020 telephone conversation, SMR asked his mother about the allegations she had made against his father, and she admitted that these allegations were not true. His mother also told him that she had manufactured a certificate from a divorce registrar’s office in Bangladesh by instructing people known to her. SMR asked her why she had signed these documents if the allegations she was making were extremely baseless. SMR testified that his mother told him that her lawyer had forced her to provide these fake documents in order to win the case “as part of the game”.
[103] SMR was not cross-examined by counsel for the Applicant.
[104] In her evidence, FRA said that she is currently a third-year student at Toronto Metropolitan University studying for a degree in public health. She is also working part-time at a restaurant and earns about $1500 a month. This enables her to pay her expenses, which she prefers as she does not really like the idea of asking her father for money.
[105] FRA confirmed that her father neither pressured her to provide her September 2020 affidavit, nor did he threaten to kick her out of the house or to refuse to pay her tuition fees if she did not provide it. She did not provide the affidavit under duress.
[106] FRA’s September 2020 affidavit had stated that she became aware that her parents were separated in November 2016. In her viva voce evidence in chief, she explained that, on the morning of November 17, 2016, she was woken up by SMR early in the morning, telling her that their parents had called from the airport in Bangladesh to tell them that they were separating. Her brother spoke to the parents first, and then he passed the phone over to her. Her father told her that they were officially separating.
[107] FRA said that she came to know that their parents were divorced in Bangladesh in March 2017. However, after the divorce, their mother continued to live with the Respondent and the children in the same apartment, although her mother slept with her and her sister rather than with her father. Their parents also attended family gatherings and birthdays together even though they were divorced.
[108] FRA said that, in March 2020, she spoke with her mother and asked her why she had commenced this family case, since, as far as FRA was concerned, it had come out of nowhere. FRA said that her mother acknowledged that the divorce documents that she had acquired to advance her case were false. FRA added that, even now, she does not understand what her mother is doing, and she believes this case has been going on for way too long.
[109] Although Applicant’s counsel had previously advised that he was under instructions from his client not to cross-examine either of the Adult Children, he indicated that he wished to ask FRA one question. He then proceeded to cross-examine FRA for the next 25 minutes. In the course of the cross-examination, FRA clarified and elaborated upon what she had said in her evidence in chief.
[110] In particular, over the course of FRA’s cross-examination, the following points emerged:
FRA confirmed that she had spoken directly with her mother during the telephone conversation on November 17, 2016. She further stated that her mother had said that she had received divorce documents from her father.
FRA was asked whether it was possible that her mother had merely said that her father intended to give her a divorce notice. FRA repeated that her mother told her that she had actually received the divorce notice, not that she was going to receive it sometime in the future.
FRA was asked how she came to know that her parents were divorced in 2017. She replied that her parents both told her that they were divorced on the day it became official.
FRA initially said that she thought this conversation about the divorce becoming official had taken place on March 17, 2017, but she later said that she was not sure of the exact date, since this had taken place over five years in the past. She also was not sure whether her father was there in person or whether he was merely on the telephone from Bangladesh. But what she was certain of was that her mother was there in person on that day, and that both her parents confirmed that, as of that date, they were officially divorced.
Applicant’s counsel repeatedly questioned FRA about whether her parents had obtained a divorce certificate by the time of the call that had taken place on or around March 17, 2017. FRA said that the divorce was officiated on that day and she believed that they had had a divorce certificate.
FRA was asked how she first came to learn about her mother’s divorce application. FRA explained that she and her brother had a discussion with her father about the application in January 2020. She said that after learning of her mother’s case, she felt lost and distraught. She regarded the statements made by her mother in the court documents as coming out of nowhere and she had no idea why her mother was making the claims she was making. When FRA learned of her mother’s court case, she felt so lost that it affected her performance at school, but she eventually managed to get herself back on track.
FRA was asked whether she had told her father that the allegations in her mother’s application were false. She replied that she did tell her father that she disagreed with her mother’s allegations, and that what her mother was saying had never happened.
FRA was shown a paragraph from the Respondent’s Answer, in which the Respondent had claimed that his children disagreed with all of the allegations in the mother’s Application. FRA was asked whether the Respondent’s statement was true.
FRA replied that it was true, since she did disagree with all of the allegations being made by her mother. FRA said she specifically disagreed with the allegation that her father had abused her mother in front of the children. She acknowledged that her parents had disagreements but stated that her father had never resorted to violence of any type, whether mental or physical. Her observation had been that her father had been cordial and respectful towards her mother. Thus, when she learned of her mother’s allegations of physical and mental abuse, she was thrown off balance and wondered where these allegations had come from.
- I note that FRA was not cross-examined on her evidence that the Applicant told her in March 2020 that she knew her claims in this proceeding were without foundation and, further, that the Applicant said she had created forged documents in an effort to win the case. Thus, FRA’s evidence as to that conversation is uncontradicted.
d. The Proceedings Commenced by the Applicant in Bangladesh Are No Bar to this Court Considering the Validity of the 2017 Divorce
[111] As noted earlier, on September 1, 2020, the Applicant commenced the Criminal Complaint as well as the Civil Suit. In addition, on September 24, 2020, she filed a formal complaint against the Registrar with a more senior registrar in Dhaka. She argues that because she has challenged the validity of the 2017 Divorce before the courts of Bangladesh, those courts have jurisdiction over the issue. Therefore, until the Bangladeshi courts determine the matter, it would be improper for a Canadian court to decide that the Respondent has a valid divorce granted in a foreign jurisdiction that is capable of being recognized in Canada.
[112] The difficulty with this argument is that the Applicant herself invoked the jurisdiction of this Court when she commenced her Application and subsequently claimed that the 2017 Divorce was a fraud. Therefore, the validity or invalidity of the 2017 Divorce must necessarily be considered in order to properly adjudicate the claims in her own Application. The fact that the Applicant subsequently commenced proceedings in Bangladesh challenging the validity of the 2017 Divorce cannot prevent the Court from considering issues which the Applicant herself is asking this Court to decide.
[113] I set out below the status of the proceedings which the Applicant has commenced in Bangladesh challenging the validity of the 2017 Divorce. I then explain why the case law relied upon by the Applicant, in support of her argument that this Court should await a determination by the Bangladeshi courts over the validity of the 2017 Divorce, has no application in this case.
i. The Applicant’s Bangladeshi proceedings challenging the validity of the 2017 Divorce, and her complaint against the Registrar
[114] As noted above, on September 1, 2020, the Applicant commenced the Criminal Complaint as well as the Civil Suit, while on September 24, 2020, the Applicant filed a complaint against the Registrar with a more senior registrar in Dhaka. In all three of these proceedings, the Applicant alleged that the Respondent, together with the Registrar, created a fake divorce certificate and a fake registration book in an effort to defeat her claims in her Ontario matrimonial proceeding.
[115] Of these three Bangladeshi proceedings, only the Criminal Complaint has been the subject of a formal adjudication by a court. Shortly after that Criminal Complaint was filed, the Chief Metropolitan Magistrate in Dhaka appointed a police Sub-Inspector to investigate the Applicant’s allegations. The Sub-Inspector, assisted by a second Sub-Inspector (the “Police Investigators”) duly conducted an investigation and, on November 14, 2020, submitted a detailed report (the “Police Report”) to the court.
[116] In their Report, the Police Investigators explained that they had made considerable efforts to meet with the Applicant and her parents in order to obtain further information about the Complaint, but those efforts had been unsuccessful. They had spoken by telephone a number of times with the Applicant and asked her to meet with them at their office, but she never appeared. The Police Investigators then attended at the two residential addresses which the Applicant had listed in her Criminal Complaint in order to speak with her, but were unable to locate her at either of these residences. However, they did learn that, up until July 2020, the Applicant had been living in apartment 4F in the Shurma Bhaban Apartment in the Mirpur district of Dhaka with her husband Towfique Ahmed.[^41]
[117] The Police Investigators also spoke with the Applicant’s father on his cell phone. They explained that they wished to speak with the father about his claim that he and his wife (i.e., the Applicant’s mother) had obtained a certificate from the Registrar stating that the Respondent’s divorce documents were fraudulent. The Applicant’s father provided various excuses as to why he was unable to meet with them. The Police Investigators then asked whether the Applicant’s mother could meet with them, but the Applicant’s father said that she was not available because she was ill. The Police Investigator also asked the Applicant’s father how they could contact the Applicant herself. The Applicant’s father claimed that he did not know the Applicant’s whereabouts or how to contact her.
[118] The Police Investigators were able to meet with the Respondent as well as the Registrar. The Respondent explained how he obtained the 2017 Divorce and provided the Police Investigators with the relevant documents. The Investigators also received confirmation from the Registrar that the Respondent had divorced the Applicant, with the Registrar providing the Investigators with relevant supporting documentation. The Police Investigators reviewed these records and found that they were in order.
[119] In her Criminal Complaint, the Applicant had identified three witnesses who she claimed would be able to corroborate her allegations of fraud against the Respondent. These three witnesses met with the Police Investigators and provided statements in which they said they were unaware of any fraud involving the Respondent.
[120] The Police Investigators also determined, based on cell phone tracking data, that the Applicant could not have visited the Registrar’s office on January 16, 2020 as she had claimed, since she had been in another location that day. Similarly, the Applicant’s parents could not have visited the Registrar’s office on February 12, 2020 and obtained documents from him (as the Applicant had also claimed), since her father’s cellphone showed that he was in another location on that day as well.
[121] The Police Report concluded that the Respondent had given the Divorce Notice to the Applicant and that the divorce had become effective on March 17, 2017. There was no truth to the Applicant’s fraud allegations and the Criminal Complaint should be dismissed.
[122] When she received the Police Report, the Applicant claimed that the Police Investigators had been bribed by the Respondent to prepare a fake report, and she filed a notice of dissatisfaction with the Metropolitan Magistrate in Dhaka. This resulted in a hearing before a Metropolitan Magistrate on February 24, 2021, at which the Applicant was represented by legal counsel. After hearing submissions, the Court found that the Police Report had been properly prepared, accepted the findings in the Report, and dismissed the Applicant’s Criminal Complaint.
[123] The Applicant filed an appeal of the Metropolitan Magistrate’s decision on March 18, 2021. Court documents filed by the Applicant indicate that the appeal has been brought forward for hearing numerous times over the past 18 months. However, at each scheduled hearing, the court docket simply records “no action taken by either side”, and the matter is automatically adjourned to a later date. To date, there is no evidence of any meaningful action having been taken by the Applicant with respect to her appeal of the February 24, 2021 dismissal of the Criminal Complaint.
[124] I would also point out that, before this Court, the Applicant has not identified any specific objection she has to the findings in the Police Report, apart from her bare allegation that the Respondent bribed the court-appointed Police Investigators. Nor has she disputed the Police Investigators’ finding that she and her parents were given ample opportunity to provide evidence to the Police Investigators but failed to do so.
[125] Turning to the Civil Suit filed by the Applicant on September 1, 2020, the Respondent states that he has never been served with the Suit. Although this is disputed by the Applicant, she has not provided any evidence showing that the Civil Suit has been properly served. Nevertheless, even if it was served, the parties are agreed that no further action has been taken by the Applicant since the filing of the Civil Suit on September 1, 2020.
[126] With respect to the Applicant’s September 24, 2020 complaint filed against the Registrar, there is no evidence of any resulting disciplinary or other action having been taken against the Registrar. Moreover, there is no dispute that the Registrar continues to serve as a Nikah Registrar. I therefore draw the inference that the Applicant’s complaint against the Registrar was either dismissed or otherwise found to be lacking in sufficient merit to be acted upon.
[127] In short, of the three proceedings commenced in Bangladesh by the Applicant, only the Criminal Complaint has been formally considered by a Bangladeshi court or competent authority, which has resulted in the Complaint being dismissed.
ii. The fact that the Applicant has commenced proceedings in Bangladesh in which she makes the same allegations of fraud as are raised in this proceeding does not prevent this Court from making findings in relation to the allegations.
[128] In her Application, the Applicant seeks a variety of corollary relief, including spousal support and equalization of the parties’ net family property. It is well established, and not disputed by either party in this proceeding, that a former spouse who has previously been divorced in a foreign jurisdiction cannot bring a claim for spousal support in Ontario.[^42] While a former spouse does have a claim for equalization of net family property under the Family Law Act, such a claim must be brought within two years of the date of the divorce.[^43]
[129] Therefore, if the parties were previously divorced in Bangladesh in 2017, this Court would have no jurisdiction to consider her claim for spousal support, and her claim for equalization of net family property would be barred by the limitation provision governing such a claim in the Family Law Act. It necessarily follows that the Court cannot grant the Applicant the relief she is seeking without determining whether the parties were divorced in Bangladesh, as claimed by the Respondent, or whether the 2017 Divorce never took place, as claimed by the Applicant.
[130] The Applicant has cited a number of cases in which matrimonial proceedings in Ontario have been stayed or dismissed, either because there was no real and substantial connection between Ontario and the subject matter of the dispute, or because Ontario was not the appropriate forum to determine the issues in dispute.[^44] Those cases simply have no application in the circumstances of this case. Neither party disputes the fact that Ontario has jurisdiction over the Applicant’s proceeding, nor is either party seeking to stay or dismiss the Applicant’s claims. Because this Court cannot grant the relief sought by the Applicant without determining whether the parties were previously divorced in Bangladesh, consideration of that issue cannot be postponed in order to await a ruling by a Bangladeshi court. Rather, this Court must proceed to determine legal issues which the Applicant herself has squarely raised for adjudication here in Ontario, which necessarily includes whether she and the Respondent were divorced in Bangladesh in 2017.
[131] I note as well that putting the adjudication of these issues on hold until the Bangladeshi proceedings brought by the Applicant have been resolved would significantly delay litigation that has already taken almost three years. The Civil Suit in Bangladesh, for example, was commenced in September 2020, with little to no action being taken since then. Delaying these proceedings for even longer — potentially years — creates the risk of substantially prejudicing the Respondent, who may well have substantially rearranged his finances by the time of the adjudication of an eventual net family property equalization. This consideration of substantial prejudice caused by delay is typically considered in deciding whether to extend a limitation period under s. 7 (3) of the Act.[^45] Given the delay that would be created by putting these proceedings on hold, these same considerations are helpful in considering this issue here.
e. Credibility Assessment and Findings
[132] Each party claims that the other is lying, and that the other has produced fraudulent documents in support of their claims. Thus, in order to make the necessary findings on the factual and legal issues before me, I must assess the credibility and reliability of their evidence.
[133] As discussed in my July 2022 Endorsement, one of the most valuable means of assessing a party’s credibility is to examine the consistency in their evidence. While inconsistencies vary in their nature and importance, if a witness is found to have made deliberately false statements or relied on false documents, that may well cause the trier of fact to question or reject the entirety of a witness’s testimony.[^46]
[134] As explained below, these are particularly relevant considerations in assessing the parties’ credibility in this proceeding.
i. The Applicant’s evidence is not credible and no weight should be attached to it.
[135] The Applicant’s evidence on this motion has been characterized by outright contradictions, inconsistencies, changes in position, and implausible claims.
[136] I begin my assessment of the Applicant’s credibility by noting that she has advanced three different versions of how and when she first became aware of the Respondent’s fraudulent claims regarding the 2017 Divorce.
[137] In her February 22, 2020 Reply, she said she first became aware of the Respondent’s fraud when her lawyer received documents from the Respondent’s lawyer on January 28, 2020. In contrast, in her September 1, 2020 Criminal Complaint she claims that she first learned of the Respondent’s fraud on January 9, 2020. The Applicant’s Criminal Complaint also claims that, on January 16, 2020, she personally went to the office of the Registrar, who told her that the divorce-related documents provided by the Respondent were fakes. In further contrast, in her September 1, 2020 Civil Suit, she says that she first learned of the Respondent’s fraud on January 16, 2020, when her lawyers attended at the Registrar’s office and the Registrar told them that the Respondent’s divorce-related documents were fakes.
[138] When these different versions of when the Applicant first became aware of the Respondent’s fraud were raised with the Applicant’s counsel in oral argument, he was unable to provide any explanation for the inconsistencies. However, counsel did agree that the Applicant’s claims contradicted each other and could not all be true.
[139] The Applicant’s account of the involvement of the Registrar in the Respondent’s alleged fraudulent scheme is also characterized by inconsistencies and, in any event, makes no sense. In her February 22, 2020 Reply, she says that the Respondent offered the Registrar a bribe in Bangladeshi currency equivalent to C$7600 but he refused to accept it, while in her November 2020 Materials, the Applicant claims that the Registrar accepted a bribe from the Respondent equivalent to C$7600.
[140] Stranger still is the Applicant’s claim that the Registrar, who she claims assisted the Respondent in preparing the fraudulent Divorce Certificate, admitted in writing to her as well as to her parents that the document was a fake. But then, having admitted the Divorce Certificate was fraudulent, thereby in effect exposing himself as a fraudster, the Registrar resumed his participation in the fraud scheme by assisting the Respondent in preparing a fake registration book. This sequence of events does not make sense, since a participant in a fraud does not confess the fraud to the intended victim in writing, only to continue with the fraud that he has just exposed through his own written confession.
[141] The Applicant’s allegations regarding the fake registration book she claims was created by the Registrar and the Respondent are also inconsistent and confusing. In her Civil Suit, the Applicant claims that on March 15, 2020, her lawyers found the fake registration book at the Registrar’s office. However, in her November 2020 Materials, the Applicant claims that on March 15, 2020, a team of eight lawyers searched the Registrar’s office and were unable to find any registration book referring to the alleged 2017 Divorce. (This latter claim gives rise to the obvious question of why anyone would create a fake registration book but then keep it hidden in a place where it could not be found, since the whole point of creating a fake registration book must surely be to provide evidence that the fake divorce documents are actually genuine.)
[142] Apart from these various contradictions and the lack of logic in the Applicant’s fraud claims, a further difficulty arises from the fact that her allegations were fully investigated by two court-appointed Police Investigators in Bangladesh, who found them to be without merit. The Applicant and her parents declined to meet with Investigators, despite being asked on a number of occasions to do so. The three witnesses who the Applicant claimed would corroborate her allegations instead provided statements to the police indicating that they knew nothing about the alleged fraud. The Police Investigators met with both the Respondent and the Registrar, reviewed the relevant documents and record books, and found everything to be in order. Their conclusion was that there was no fraud involved and that the Respondent and the Applicant were divorced on March 17, 2017, precisely as the Respondent claims. This finding was confirmed by the Chief Metropolitan Magistrate in Dhaka on February 24, 2021, after a contested hearing in which the Applicant had counsel.
[143] Although the Applicant has filed an appeal of that ruling, in this proceeding, she has not identified any particular shortcomings or errors in the Police Report. Rather, she simply claims that the Police Investigators were bribed by the Respondent to produce a fraudulent report. But, like the allegation that the Registrar accepted a bribe, the claim that the Police Investigators were bribed is a bare allegation without any specific facts pleaded or evidence offered in support.
[144] A further and even more significant challenge to the Applicant’s credibility comes from the mouths of her Adult Children, two of whom have testified that it is the Applicant herself, rather than the Respondent, who is engaged in fraud. Amongst other things, the parties’ Adult Children say that the Applicant admitted to them in March 2020 that she commenced this proceeding despite knowing that it had no merit, given that she and the Respondent were divorced in Bangladesh. The Adult Children also say that, in that March 2020 conversation, the Applicant admitted to them that she created fake documents of her own, having been forced by her lawyer to do so in an effort to win the case.
[145] To be sure, the Applicant claims that the Adult Children are lying, and that the Respondent forced them to support his case to cover up his own lies about the 2017 Divorce. But, as I will explain in more detail below when I consider the credibility of the Adult Children, these allegations of coercion are expressly rejected by the Adult Children, who say that they have not been pressured by the Respondent and affirm that they are telling the truth. If the Adult Children are in fact telling the truth — which I conclude below that they are — then the inevitable conclusion is that it is the Applicant who is lying, not the Respondent or the Adult Children.
[146] There are a variety of other inconsistencies or contradictions in the Applicant’s evidence, three of which are particularly relevant in considering her credibility. These are as follows:
the Applicant’s change in position regarding the parties’ date of separation;
the Applicant’s change in position regarding the time of the parties’ flight to India on November 17, 2016; and
the Applicant’s claim that she has never committed a crime and only been arrested once, in contrast with the Registrar, who has been charged with a number of criminal offences.
[147] I consider each of these matters below.
- The Applicant’s change in position regarding the parties’ date of separation
[148] As noted above, in her January 7, 2020 Application, the Applicant claimed that the parties separated on December 22, 2018. However, in her November 2, 2022 affidavit, the Applicant says that this was a mistake made by her lawyer in preparing the Application and that she and the Respondent were living together as man and wife until they separated on December 22, 2019.
[149] The date of separation is not a minor detail in a divorce application. Section 8 of the Divorce Act provides that spouses may be divorced on the basis of living separate and apart only if they have been separated for at least a year. Moreover, the Family Law Act provides that the value of the parties’ net family property is to be determined as of the date of separation. The fact that the Applicant and her counsel expressly turned their mind to the issue of the date of separation when drafting the Application is reflected in the statement in the document that “[b]oth parties are separated since December 22, 2018 which is more than one year.”
[150] Since the Application was issued by the Court on January 7, 2020, the obvious reason why the Applicant stated that the parties have been separated since December 22, 2018 (rather than December 22, 2019), was in order to show that they had been separated for more than a year and that the Court had jurisdiction to grant the divorce pursuant to s. 8 of the Divorce Act. This belies the Applicant’s current claim that the statement in her Application that the parties separated on December 22, 2018 was due to a mistake on the part of her lawyer.
[151] I would also point out that the Applicant’s claim that the parties separated on December 22, 2018 was not merely advanced in her Application. Rather, she has repeatedly claimed throughout the course of this litigation that the parties separated on that date. This includes at a June 2021 case conference held specifically to consider this issue. The Applicant does not offer any explanation as to how a mistake made by her lawyer in the drafting of her original Application could have been repeated so frequently over the course of this litigation.
[152] Yet there is a more fundamental problem with the Applicant’s recent claim that the parties separated on December 22, 2019, relating to the date upon which she and her counsel actually signed the Application. Although the Application was issued on January 7, 2020, the Applicant and her counsel signed the document on December 17, 2019. The Application stated that the parties were already separated, not that they were planning to separate on some date in the future. Therefore, if the parties did not actually separate until December 22, 2019, as the Applicant now claims, the claim in her Application that she and the Respondent had already separated must be false.
[153] When this matter was raised with Applicant’s counsel in oral argument, he indicated that he had not noticed the date upon which the Applicant and her then-counsel had signed the Application. He could not explain how the Applicant can now be claiming that she and the Respondent separated on December 22, 2019, five days after the date on which she and her counsel signed an Application claiming that the parties had already been separated for a year.
[154] I conclude that not only has the Applicant changed her position with respect to the parties’ date of separation, but also that neither of the dates she has proposed can be correct. The December 22, 2018 separation date is now acknowledged by the Applicant to be incorrect, while the December 22, 2019 separation date also cannot be correct because the Applicant and her counsel signed the Application five days prior to that date.
- The Applicant’s change in position regarding the time of the parties’ flight to India on November 17, 2016
[155] Throughout this litigation, the Applicant has claimed that she and the Respondent flew together to India on the morning of November 17, 2016. The timing of the flight was material since, if the parties had actually travelled together to India on that morning, the Respondent could not have delivered the Divorce Notice to the Applicant in the evening, as he had claimed.
[156] In her October 18, 2022 affidavit, the Applicant acknowledges for the first time that the parties actually flew to India in the evening of November 17, 2016. She explains that her previous claim to the effect that they had flown in the morning was a result of confusion on her part because there were some morning flights to India that they used to take. However, the Applicant claims that nothing turns on her change in position in this regard, since she always agreed that she and the Respondent travelled to India together on November 17, 2016.
[157] In assessing the significance of this change in position, I note that the Applicant has never previously acknowledged any doubt or uncertainty on the matter. In fact, not only has she claimed that the Respondent was lying about the timing of the flight, but the Applicant has also alleged that a letter from the Police Superintendent of Immigration at the Dhaka airport, stating that the parties had departed in the evening, was a fraud. Moreover, at the hearing before me in March 2021, her counsel spent over two hours cross-examining the Respondent, in an ultimately futile effort to show he had somehow conspired with the Police Superintendent to manufacture this allegedly false letter.
[158] The Applicant is wrong to claim that nothing turns on her change in position regarding the timing of the flight on November 17, 2016. By changing her position in this regard, the Applicant is also abandoning, without explanation, her earlier claims of fraud against the Respondent and the Police Superintendent of Immigration with respect to the letter he provided confirming the timing of the parties’ departure from Dhaka that day.
[159] In my July 2022 Endorsement, I made reference to this matter and strongly suggested that the documents from the Police Superintendent were genuine. In the absence of any other explanation, I infer that it was this comment in my July 2022 Endorsement, rather than her improved memory with respect to the timing of the November 17, 2016 flight, which prompted the Applicant to abandon her obviously unsustainable allegations of fraud against the Police Superintendent of Immigration.
- Contrary to the Applicant’s claim that she has never broken the law in her entire life and has no criminal record, the Applicant has recently been convicted of three significant criminal offences in Bangladesh.
[160] The Applicant claimed in her Reply that she has never broken the law in her entire life and has no criminal record. She contrasts her own unblemished behaviour with that of the Registrar who, she claims, is currently being investigated in connection with a number of criminal allegations. The Applicant draws attention to these matters in order to enhance her own credibility while undermining that of the Registrar.
[161] The Respondent points out that, in the past few years, the Applicant has been convicted of a number of significant criminal offences in Bangladesh, certain of which involve crimes of dishonesty.
[162] For example, in December 2020, the Applicant and Towfique were convicted of criminal intimidation in connection with an incident that had taken place in May 2016. The facts as found by the court were that the Respondent and his nephew were travelling in a motor vehicle late at night in Dhaka when the Applicant and Towfique, who were in a separate motor vehicle, blocked the roadway and forced the Respondent to exit his vehicle. Towfique then held a knife to the throat of the Respondent and threatened to kill him if he did not withdraw a complaint he had previously filed against the Applicant. Fortunately, the Respondent, with the assistance of his nephew, was able to break free and escape without injury. The court found both the Applicant and Towfique guilty of criminal intimidation and sentenced each of them to one year in prison.
[163] The Applicant pointed out that in submissions made to the Dhaka court in relation to this matter in March 2020, the Respondent had referred to her as his wife. She claimed that these statements support her allegation that the 2017 Divorce was a fraud. On the other hand, the Respondent noted that he had referred to the Applicant as his wife because, at the time of the incident in 2016, they had still been married.
[164] In February 2022, the Applicant was convicted of defrauding a third-party in Bangladesh of the equivalent of C$30,000 in 2019. The Court found that, in July 2019, the Applicant and her mother had promised to prepare fake immigration documents that would permit the victim to immigrate to Canada. The Court found that no such fake documents were ever provided and that the Applicant never returned the money paid by the victim. The Applicant was convicted and sentenced to two years in prison.
[165] The Applicant points out that, in the court’s judgment, she is referred to as the Respondent’s wife. However, the Respondent notes that these references in the court’s judgment were based on statements made by the Applicant herself, rather than by the Respondent. As such, the Respondent maintains that the statements cannot be relied upon as evidence that the Respondent believed at that time that he and the Applicant were still married.
[166] In October 2022, the Applicant was convicted of theft in connection with an incident that had taken place in March 2016. The court in Bangladesh found that the Applicant and Towfique stole jewelry and cash from the Respondent and sentenced the Applicant to two years’ imprisonment.
[167] The Applicant points out that, in the court’s judgment, the Respondent is quoted as referring to her as his wife. However, the Respondent once again states that he referred to the Applicant in this way because, at the time of the incident, she was, in fact, his wife.
[168] I consider below whether the references in these criminal proceedings to the Applicant as the wife of the Respondent are material in assessing the Respondent’s credibility. For the moment, I merely observe that the fact that the Applicant has been convicted of three serious criminal offences in Bangladesh in the last two years, after claiming that she has never committed a crime in her entire life, is a further relevant consideration in assessing her credibility.
[169] In conclusion on the issue of the Applicant’s credibility, I make four general observations.
[170] First, the Applicant’s allegations of fraud are contradictory and, in many cases, make no sense. She has provided three different versions of when she first became aware of the Respondent’s fraud in relation to the 2017 Divorce. Her claims that the Registrar was bribed by the Respondent, and that the Registrar actively participated in the fraudulent scheme, are contradictory and make no sense. The Applicant alleges not only that the Respondent conspired with the Registrar, but also with two court-appointed Police Investigators (whom he also bribed). All the Applicant’s bribery claims are bare allegations with no supporting evidence of any kind.
[171] Second, the Applicant’s allegations of fraud on the part of the Respondent have been investigated by Police Investigators at the direction of a criminal court in Bangladesh and were found to be without merit. The findings of the Police Investigators were accepted by the criminal court in Bangladesh at a contested hearing in which the Applicant was represented by counsel. Given the lack of evidence in support of the Applicant’s allegations of fraud, the Court dismissed the Criminal Complaint. Her earlier claim that the Police Superintendent of Immigration at the Dhaka airport also committed fraud has recently been abandoned without explanation, but only after the claim was obviously unsustainable.
[172] Third, the Applicant has changed her position on a number of significant issues in this litigation without adequate explanation. This includes the Applicant’s claim as to the date upon which the parties separated, with the Applicant proposing two different separation dates, neither of which can be true.
[173] Fourth, the Adult Children have testified that the Applicant told them that she knew when she filed her Application that her allegations were false. The Adult Children also say that the Applicant admitted to them that she manufactured fake documents in order to support her claim, albeit at the direction of her lawyer. As I will explain further below, the evidence of the Adult Children is essentially uncontradicted and wholly credible, and in and of itself provides a sufficient basis to reject the Applicant’s evidence.
[174] I therefore find that the Applicant’s evidence regarding the 2017 Divorce is simply not credible. I reject that evidence and attach no weight to it.
[175] I note that this finding is identical to the conclusion I reached in my July 2022 Endorsement. Importantly, however, I have not relied upon the credibility assessment in my July 2022 Endorsement in arriving at my findings in this Endorsement. Nevertheless, the fact that on two separate occasions I have come to the identical conclusion regarding the Applicant’s credibility is mutually reinforcing, and provides a higher degree of confidence in that finding.
ii. The Respondent’s evidence regarding the 2017 Divorce is internally consistent and is, in most important respects, uncontradicted. Despite some concerns over his credibility, I accept his evidence with respect to the 2017 Divorce
[176] The Respondent testified for four days in March 2021 and was cross-examined by counsel for the Applicant for almost two full days. He has also filed voluminous documentary evidence in support of his claim that he and the Applicant were divorced in Bangladesh in March 2017.
[177] The Respondent’s evidence regarding the 2017 Divorce is internally consistent and, apart from bare denials or unsupported allegations by the Applicant, is largely uncontradicted. This includes the Respondent’s evidence regarding how he went about obtaining the Divorce Notice from the office of the Registrar on November 17, 2016. The Respondent’s claim that he couriered a copy of the Divorce Notice to the Mayor of Brahmanbaria is corroborated by the Mayor’s recent letter confirming that her office received a copy of the Notice. The Respondent’s evidence that he delivered a copy of the Divorce Notice to the Applicant at the Dhaka airport on the evening of November 17, 2016 is corroborated by the evidence of the Adult Children, who say they received a call from their parents that day informing them of that fact. Moreover, the Respondent’s claim that both he and the Applicant were aware that the 2017 Divorce became effective in March 2017 is also corroborated by the evidence of the Adult Children, who say that their parents confirmed to them that they were divorced at that time.
[178] The Applicant disputes the Respondent’s evidence that he had hand-delivered a copy of the Divorce Notice to her at the airport that evening. The Applicant also claims that the Adult Children are lying in their evidence. However, as discussed below, her claim that the Adult Children are lying is a bare and generalized denial that avoids addressing the specific factual claims regarding the 2017 Divorce made by both the Respondent and the Adult Children.
[179] The Respondent’s evidence is also corroborated by the evidence of the Registrar, whose detailed affidavit supports the Respondent’s claim that he and the Applicant were divorced in 2017. As noted above, there is no evidence to support the Applicant’s allegation that the Registrar was bribed by the Respondent. The Applicant’s complaint against the Registrar was not acted upon, as he continues in his appointed position. In short, there is no credible evidence to support the claim that the Registrar has conspired with the Respondent for the past three years in order to advance the Respondent’s position in a family law proceeding in Ontario.
[180] I therefore accept the Registrar’s evidence that the parties were divorced in Bangladesh in March 2017, which further corroborates the Respondent’s evidence in that regard. The Respondent’s evidence is further corroborated by the findings of the criminal court in Dhaka, which, following an investigation, dismissed the Applicant’s allegations of fraud.
[181] In addition to being corroborated in these important respects, the Respondent’s evidence regarding the 2017 Divorce has remained consistent throughout this litigation. Unlike the Applicant, he has never deviated from the specific factual claims he made in his original pleadings in this case.
[182] The Respondent explained that he referred to the Applicant as his wife in the Bangladeshi criminal cases involving the Applicant because, at the time of the underlying relevant events in 2016, they were still married. I find this explanation to be reasonable in the circumstances and accept it.
[183] The only significant credibility concern with respect to the Respondent relates to his evidence regarding his Canadian tax returns. The Respondent claims that he was unaware of the fact that, on his Canadian tax returns for the years 2017, 2018 and 2019, he originally identified himself as “Married”. Yet those returns had to have been prepared on the basis of instructions that the Respondent provided to his accountant. I also note that the Respondent was gaining a tax advantage by claiming he was married, since this permitted him to split his income with the Applicant for those years and would accord with the fact that the parties’ income in their tax returns for those years was identical. I therefore reject the Respondent’s evidence that he was unaware of the fact that he declared himself to be married on those tax returns.
[184] Despite this concern, I find that it does not call into question the extensive and largely uncontradicted evidence of the Respondent regarding the 2017 Divorce. On balance, I find his evidence on issues relating to the 2017 Divorce to be credible and I accept his evidence that he divorced the Applicant in Bangladesh in 2017.
iii. I accept the evidence of the Adult Children, which is credible and largely uncontradicted
[185] The Adult Children each filed affidavits in September 2020, and also testified via Zoom in November 2022. As described above, their evidence is essentially that both the Applicant and the Respondent understood that they were divorced as of March 2017. They both say that the Applicant admitted to them that she commenced this proceeding in 2020 knowing that her claims were false and had no merit and, in addition, that she manufactured evidence in an effort to win the case.
[186] The Applicant does not address the specific factual claims made by the Adult Children. She does not say whether she spoke with the Adult Children about having received the Divorce Notice on November 17, 2016, nor does she say whether she and the Respondent told the Adult Children in March 2017 that their divorce had become effective. The Applicant also avoids discussing whether she spoke with the Adult Children in March 2020, when they say she admitted to them that her legal claims had no merit.
[187] Instead, the Applicant merely denies their evidence generally, claiming that they have been pressured into providing false evidence by the Respondent. In her November 2020 affidavit, the Applicant claimed that neither of the children was employed and that they rely totally on the Respondent for food, lodging, and education expenses. The Applicant alleged that the Respondent threatened to withdraw his financial support if the Adult Children refused to provide evidence in support of his position in this proceeding. In her most recent affidavit, dated November 2, 2022, the Respondent repeated her claim that the Adult Children are at the Respondent’s “mercy for their livelihood”. She also suggested that because the Respondent is a “violent man”, the Adult Children were at the risk of “unspeakable abuse if they do not comply with his commands”. The Applicant did not provide any details as to what this “unspeakable abuse” might involve.
[188] In their testimony, both Adult Children specifically denied having been pressured in any way by the Respondent. They also explained that although they are both still university students, they earn sufficient income to pay a significant portion of their own expenses. Neither of the Adult Children was cross-examined on this evidence, which is therefore uncontradicted. I accept their evidence that they have testified voluntarily and not as a result of pressure from the Respondent.
[189] Although Applicant’s counsel did not cross-examine SMR, he did cross-examine FRA with respect to certain aspects of her evidence. However, far from undermining the credibility of her evidence, this cross-examination provided FRA with an opportunity to both clarify and elaborate on her evidence in important respects. For example, FRA confirmed that on November 17, 2016, the Applicant had specifically stated in their telephone conversation that she had received a copy of the Divorce Notice from the Respondent. FRA also stated that in March 2017, both the Applicant and the Respondent had told her and her brother that their divorce had become effective. Though FRA said that her parents had obtained a divorce certificate at the time of the call, which could not be true, since the Respondent did not obtain a divorce certificate until a few months later, I find that this statement was merely due to a reasonable confusion on the part of FRA and does not detract from her credibility. I accept that what she meant was that the divorce was officiated on this day, as she also stated, and that she likely reasonably confused the meaning of the divorce being official with having official documentation to that effect. FRA further stated that she disagreed with all of the claims in the Applicant’s Application, including the Applicant’s allegations that the Respondent had been physically or verbally violent while the parties had been living together.
[190] What is also telling is that FRA was not cross-examined with respect to the March 2020 conversation she had with the Applicant, in which FRA says the Applicant acknowledged that she commenced this proceeding knowing that her claims were without foundation and, further, that the Applicant said she had created forged documents in an effort to win the case. That evidence — as well as the identical evidence of SMR regarding a separate conversation he had with the Applicant at the same time — is therefore uncontradicted.
[191] I therefore accept the evidence of the Adult Children as a whole. I specifically accept their evidence that on November 17, 2016, the Applicant told them that she had received a copy of the Divorce Notice from the Respondent; that the Applicant and the Respondent told the Adult Children in March 2017 that their divorce had become effective; that although the Applicant continued to reside with the Respondent and their children following the 2017 Divorce, the Applicant slept in a separate room from the Respondent and the parties understood that they had been divorced; and that the Applicant told the Adult Children in March 2020 that she had commenced this proceeding knowing that her allegations against the Respondent were false and, further, that she has manufactured evidence in order to win the case.
f. Findings of Fact Regarding the 2017 Divorce
[192] Based on these credibility assessments and conclusions, I make the following findings of fact regarding the 2017 Divorce:
i. the Respondent prepared the Divorce Notice with the assistance of the Registrar and his staff on November 17, 2016;
ii. the Respondent delivered the Divorce Notice to the Applicant at the Dhaka airport on November 17, 2016;
iii. the Respondent couriered a copy of the Divorce Notice to the Applicant at her parents’ address, where she was staying at the time;
iv. the Respondent sent a copy of the Divorce Notice to the Mayor of Brahmanbaria, which was received by her office;
v. the Registrar registered the 2017 Divorce on March 17, 2017 and issued the Divorce Certificate in June 2017, stating that the 2017 Divorce became effective on March 17, 2017;
vi. there was no fraud involved in obtaining the 2017 Divorce and all of the divorce-related documents submitted by the Respondent are genuine;
vii. the Applicant and the Respondent were both aware that the 2017 Divorce became effective as of March 17, 2017, and so informed their children on or about that date;
viii. the corollary of the finding in the immediately preceding subparagraph is that the parties did not reconcile within the 90-day period following the delivery of the Divorce Notice, and I so find;[^47]
ix. although the parties continued to reside in the same apartment after the 2017 Divorce, they slept in separate rooms, were living separate and apart, and understood that they were divorced;
x. the Applicant commenced this proceeding knowing that the parties had been previously divorced in Bangladesh in March 2017; and
xi. the Registrar’s Attestation Certificate, purporting to claim that the 2017 Divorce was a fraud, was manufactured by the Applicant, and is itself a fraud.
VII: The 2017 Divorce Satisfies the Common Law Test for the Recognition of Foreign Divorces, and is Therefore Presumed to Be Valid in Accordance With S. 22 (3) of the Divorce Act
a. The Presumption of Foreign Divorce Validity Applies
[193] The consequence of the findings of fact as set out above is that the 2017 Divorce occurred as alleged by the Respondent, and that it became effective on March 17, 2017, as stated in the June 2017 Divorce Certificate from the Registrar.
[194] It is also beyond dispute that there was a real and substantial connection between the parties and Bangladesh at that time. The parties were married in Bangladesh in 1998, lived there throughout their marriage, and their three children were all born in Bangladesh. Although the Respondent had attained landed immigrant status in Canada in 2015, he continued to reside primarily in Bangladesh until late 2016, while the Applicant resided in Bangladesh until she arrived in Canada as a landed immigrant in February 2017.
[195] Moreover, the Applicant herself initiated divorce proceedings in Bangladesh on March 28, 2016, which she ultimately withdrew in June of the same year. Given that the Applicant clearly believed Bangladesh to be the appropriate forum for a divorce at that time, it cannot be that the real and substantial connection to the jurisdiction no longer existed by the time the Respondent gave notice of the 2017 Divorce a few months later.
[196] Thus, the 2017 Divorce satisfies the common law test for the recognition of foreign divorces, as most recently affirmed by the Court of Appeal in Novikova. It is therefore recognized and presumed to be valid for purposes of Canadian law, in accordance with s. 22 (3) of the Divorce Act. I will also note that, even if the evidence of the Applicant could constitute some credible evidence of invalidity to rebut the presumption of validity of a foreign divorce, I would have found that, on a balance of probabilities, the Respondent has proven that the divorce was a valid one.
b. The Failure of the Mayor of Brahmanbaria to Convene an Arbitration Council is Not a Reason for Canadian Courts to Refuse to Recognize the 2017 Divorce
[197] As explained earlier, Bangladeshi law requires the Mayor of the local municipality to convene an Arbitration Council in an effort to encourage the parties to reconcile in the 90-day period following the delivery of a divorce notice. It is agreed that, in this case, no such Arbitration Council was in fact convened.
[198] Nevertheless, as the Court of Appeal noted in Novikova, Canadian courts will generally not inquire into whether a divorce was obtained in compliance with the law of the foreign jurisdiction.[^48] The substantive grounds upon which a foreign divorce was granted is a matter to be pursued before the courts of the foreign jurisdiction, rather than Canada. In any event, the Respondent’s expert and one of the Applicant’s both agreed that the failure to convene an Arbitration Council does not invalidate a divorce.
[199] Therefore, the failure to convene an Arbitration Council in this case is not a reason for a Canadian court to refuse to recognize the validity of the 2017 Divorce.
VIII: None of the Grounds Upon which a Canadian Court May Refuse to Recognize a Foreign Divorce Apply in this Case
a. There Was No Denial of Natural Justice in Obtaining the 2017 Divorce
[200] As discussed above, the Applicant received the Divorce Notice on November 17, 2016, in accordance with the requirements of Bangladeshi law. The Respondent also delivered a copy of the Divorce Notice to the Mayor of Brahmanbaria, as legally required. This was not a case like Novikova, where the husband had failed to give notice to the wife as required by the foreign law. Accordingly, there was no breach of natural justice in obtaining the 2017 Divorce.[^49]
b. Public Policy Considerations Favour the Recognition of the 2017 Divorce in Canada, Rather Than the Refusal to Recognize It
[201] The Applicant claims that a bare “talaq” divorce, whereby a man is permitted to divorce his spouse through unilaterally pronouncing a divorce, is contrary to Canadian public policy. She cites a number of Canadian cases which have refused to recognize a bare talaq divorce, including the Federal Court’s 2008 decision in Amin v. Canada,[^50] and two recent decisions of this Court, Al Sabeki v. Al Jajeh,[^51] and Abdulla v. Al-Kayem.[^52]The Applicant argues that because the divorce in this case is a bare “talaq” divorce, it is contrary to Canadian public policy and should not be recognized for purposes of Canadian law.
[202] While the Canadian courts in the cases cited by the Applicant did refuse to recognize bare “talaq” divorces, they did so on grounds of lack of notice or a failure of jurisdiction. In none of those cases did the court decide that a bare “talaq” divorce is inherently or necessarily contrary to Canadian public policy.
[203] Amin was a judicial review of a decision of the Immigration and Refugee Board (the “IRB”) that the applicant had failed to establish the existence of a legally valid Pakistani divorce that would have enabled him to sponsor his spouse from a second marriage to immigrate to Canada. (Under the relevant Canadian regulations, in order to sponsor his second wife as a permanent resident, the applicant had to prove that his first marriage had been legally dissolved.) The applicant had married his second wife in 2002 and claimed that he had divorced his first wife in 1993. However, the IRB found that, although the 1993 divorce may have been effective for religious purposes, it did not come into effect legally in Pakistan until 2005 when it was registered by the applicant. Because the applicant was not legally divorced when he married his second wife and 2002, his sponsorship of his second wife was refused.
[204] Barnes J. of the Federal Court dismissed the application for judicial review on the basis that the IRB’s decision (namely, that the applicant had never been legally divorced from his first wife prior to his marriage to his second wife) was reasonable. While Barnes J. did express concerns over the appropriateness of recognizing a bare talaq divorce for purposes of Canadian law, the actual ground for the decision was simply that the applicant had failed to show that he had actually been divorced in Pakistan at the relevant time.
[205] In Al Sabki, a husband, who was then living in Singapore, obtained a divorce decree in Syria and sent it to his wife, who was living in Ontario. The husband then remarried. Audet J. of this Court refused to recognize the Syrian divorce decree on the basis that neither party had a real and substantial connection with Syria. Moreover, there had been a denial of natural justice in obtaining the divorce because the husband had failed to provide notice of the divorce to the wife and/or her family members, as was required under Syrian law.
[206] Similarly, in Abdulla, a husband obtained a talaq divorce in Dubai in March 2017. A month later he sent a letter to his wife, who had been living in Canada since 2005, informing her that they were now divorced. The wife subsequently commenced an application in Ontario seeking spousal support. The husband did not file an Answer and the matter came before Chozik J. as an uncontested trial. Chozik J. refused to recognize the foreign divorce for purposes of Canadian law because there was no evidence before him as to the procedure that had been followed in obtaining it. He also found that the wife was not given any notice of the proceeding and, thus, even if properly obtained, there had been a breach of natural justice.
[207] In short, while the decisions relied upon by the Applicant do express understandable reservations over the appropriateness of recognizing a talaq divorce in Canada, those comments were made in circumstances where there were specific and well-established grounds for refusing to recognize the particular divorce in question. Moreover, talaq divorces have been recognized in other recent decisions of this Court.[^53] I conclude that, depending on the circumstances in a particular case, even a bare talaq divorce obtained in a foreign jurisdiction can be recognized as valid for purposes of Canadian law.
[208] The question in this case, therefore, is whether in the present circumstances the Court should use its narrow discretion to refuse to recognize the validity of the 2017 Divorce on grounds of Canadian public policy.
[209] In my view, public policy considerations militate in favour of recognition of the 2017 Divorce, rather than the opposite, for the simple reason that the Applicant cannot invoke principles of Canadian public policy if she herself has ignored or contradicted those same principles.[^54]
[210] I have earlier found that the Applicant commenced this proceeding in bad faith, knowing that she had previously been divorced from the Respondent in Bangladesh in 2017. She then “doubled down” on her bad faith claim by manufacturing forged documents designed to falsely claim that the Respondent was engaged in a complicated fraudulent conspiracy with various officials in Bangladesh. The Applicant has continued to insist that the Respondent has been engaged in this complicated fraud despite growing evidence to the contrary, including the sworn testimony of her two Adult Children whom the Applicant claims are lying. In the meantime, she decided to marry Towfique in a private ceremony in Dhaka in May 2020, even while insisting in this Court that she was still married to the Respondent.
[211] Parties and their counsel in matrimonial proceedings in this province (and elsewhere in Canada) are expected to conduct themselves in good faith. This includes an obligation to assist the court in promoting the Primary Objective of the Family Law Rules, namely, to enable the court to deal with cases justly.[^55]
[212] Commencing a claim in bad faith is inherently contrary to the Primary Objective since a bad faith claim is necessarily designed to work an injustice. It is an attempt to deceive not only other parties to the litigation, but also the court itself, with a view to persuading the court to accept the validity of a claim which the claimant knows to be untrue. Such a course of conduct is unacceptable in any litigation context,[^56]but it is particularly troubling in the uniquely vulnerable circumstances of marriage breakdown.[^57]
[213] Moreover, in Essa, this Court considered whether to set aside an otherwise valid Egyptian divorce on the grounds of public policy. Though, like in the present case, recognizing the divorce would have barred the applicant from proceeding with her claims for equalization of net family property in Canada due to the two-year limitation period, Campbell J. did not refuse to recognize the divorce on grounds of public policy partially due to the applicant’s own actions. The applicant had wrongfully removed the children of the marriage from Egypt to Canada against an Egyptian court order. The Court concluded that the wrongful removal of the children was “in itself, contrary to Canadian public policy”, and that this kind of behaviour could not be supported or encouraged by Canadian courts by assuming jurisdiction of the applicant’s corollary relief claims in Canada.[^58] Though the type of wrongful conduct in this case differs from Essa, the same reasoning applies here.
[214] A party who invokes Canadian public policy as a ground for refusing to recognize the validity of a foreign divorce cannot themselves have conducted the litigation in a manner contrary to principles of Canadian public policy. This includes, at a minimum, ensuring that one does not advance claims which one knows to be untrue. Yet this is precisely what the Applicant has done in this case. Having made allegations and claims which she knew to be without merit, only to have those allegations and claims exposed as untrue, the Applicant now seeks to fall back upon the very principles of Canadian public policy which she herself has ignored over the course of this litigation. To grant the Applicant the relief she is seeking in this proceeding would thus itself be contrary to principles of Canadian public policy, rather than in furtherance of those principles.
c. Conclusion
[215] I conclude that none of the grounds for refusing to recognize the 2017 Divorce apply in this case. I therefore recognize the validity of the 2017 Divorce for purposes of Canadian law, including in respect of the Divorce Act and the Family Law Act.
IX: The Applicant’s Claim for Equalization of Net Family Property is Barred by the Limitation Period in S. 7 (3) of the Family Law Act
[216] Although a spouse who has previously been divorced in another country cannot bring a claim for spousal support under either the Divorce Act or the Family Law Act, divorced spouses can bring claims for equalization of net family property under the latter statute.[^59] However, such claims must be brought within two years of the date the marriage was terminated by divorce.[^60] Since I have found that the 2017 Divorce was effective as of March 17, 2017, and the Applicant did not commence this proceeding until January 7, 2020, her claim for equalization is barred by the limitation period in s. 7 (3).
[217] The Court has discretion to extend this limitation period provided that certain conditions are satisfied, one of which is that relief is unavailable because of delay that has been incurred in good faith.[^61] The Applicant has never pleaded or sought an extension of the limitation period, maintaining, instead, that the limitation period does not apply since she and the Respondent were never divorced. Even if the Applicant had sought an extension of the limitation period, I would not have granted any such relief since the delay in bringing such a claim was not incurred in good faith.
[218] I therefore find that the Applicant’s claim for equalization of net family property is barred by s. 7 (3) of the Family Law Act.
X: Disposition
[219] Order to go, on a Final Basis, as follows:
i. the Consent Orders are hereby set aside.
ii. The parties were divorced in Bangladesh effective March 17, 2017, as stated in the Divorce Certificate, and the parties were aware at that time that they were divorced.
iii. There was no fraud involved in obtaining the 2017 Divorce.
iv. There was a real and substantial connection between the parties and Bangladesh at the time of the 2017 Divorce and, accordingly, the 2017 Divorce satisfies the common law grounds for recognition of a foreign divorce and is presumed to be valid, pursuant to and in accordance with s. 22 (3) of the Divorce Act.
v. According to the expert evidence on the law of Bangladesh filed in this proceeding, the fact that the Mayor of Brahmanbaria failed to convene an Arbitration Council would not invalidate the 2017 Divorce under Bangladeshi law. In any event, that is an issue to be pursued before the courts of Bangladesh, and does not constitute a ground for this Court to refuse to recognize the validity of the 2017 Divorce for purposes of Canadian law.
vi. None of the grounds for refusing to recognize the validity of the 2017 Divorce for purposes of Canadian law apply in this case. In particular:
The Respondent delivered the Divorce Notice personally to the Applicant at the Dhaka airport on the evening of November 17, 2016, and also delivered the Divorce Notice by courier to the Mayor of Brahmanbaria at that time. Accordingly, there was no breach of the principles of natural justice in obtaining the 2017 Divorce.
The Applicant commenced this proceeding knowing that she had previously been divorced from the Respondent. Accordingly, recognizing the validity of the 2017 Divorce for purposes of Canadian law would not be contrary to principles of Canadian public policy. In fact, because the Applicant commenced this proceeding in bad faith, principles of Canadian public policy support of the recognition of the 2017 Divorce by this Court.
vii. Therefore, the 2017 Divorce is hereby recognized as valid for all purposes of Canadian law.
viii. Because the Applicant was divorced from the Respondent in Bangladesh in 2017 and that divorce is recognized for purposes of Canadian law, she has no claim for spousal support under either the Divorce Act or the Family Law Act. Although she did have a claim for equalization of net family property under the Family Law Act for a period of two years after the 2017 Divorce became effective (namely, until March 17, 2019), her application was not commenced until January 7, 2020. The Applicant has not pleaded or sought an extension in the limitation period, nor would any such extension be justified since the delay in seeking the extension was not incurred in good faith. Accordingly, her claim for equalization of net family property is barred by s. 7 (3) of the Family Law Act.
[220] With respect to costs, I recognize that, given the length and complexity of these proceedings, it will likely take the parties a considerable amount of time to properly prepare costs submissions. I therefore direct the parties to make such submissions in accordance with the following schedule: (i) the Respondent will serve and file costs submissions of up to 10 pages (not including bills of costs and offers to settle) by January 6, 2023; (ii) the Applicant will serve and file responding cost submissions of up to 13 pages (not including bills of costs and Offers to Settle) by February 3, 2023; and (iii) the Respondent will serve and file reply cost submissions of no more than three pages by February 17, 2023.
P. J. Monahan J.
Released: December 2, 2022
COURT FILE NO.: FS-20-20-14738
DATE: 20221202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARZANA RATAN SONIA
Applicant/Responding Party
– and –
ABDUL HANNAN RATAN
Respondent/Moving Party
ENDORSEMENT
P.J. Monahan, J.
Released: December 2, 2022
[^1]: These parties have actually been before me 30 times since March 2021 on issues relating to whether they were divorced in Bangladesh in March 2017. I have listed here only those appearances since the release of my Endorsement in July 2022.
[^2]: See Sonia v Ratan, 2022 ONSC 3690 (the “July 2022 Endorsement”).
[^3]: RSC 1985, c. 3 (2nd Supp.) (the "Divorce Act").
[^4]: RSO 1990, c. F.3 (the "Family Law Act”).
[^5]: I note, parenthetically, that although the Respondent and the three children obtained landed immigrant status in 2015, the children did not move to Canada permanently until August 30, 2016.
[^6]: Towfique was not able to confirm or deny whether he had married the Applicant since he unfortunately passed away on May 22, 2021 from complications arising from COVID-19.
[^7]: I note that evidence considered on this motion clarified the issue of where the May 2020 wedding took place. See the discussion in note 41 below.
[^8]: I also wish to acknowledge that I made an error in stating that in a recent criminal court case in which the Applicant had been convicted of fraud, she was identified as Farzana Ahmed, the wife of the late Syed Towfique Ahmed. My statement was based on media accounts which had been submitted by the Respondent. In her materials submitted on this motion, the Applicant had filed a copy of the actual reasons for decision in the fraud case, in which the Applicant is identified as Farzana Ratan Sonia.
[^9]: See the comments made by this Court in obiter dicta in Samson v. Samson, 2021 ONSC 3358, at para. 15; W.A.C. v. C.A.F., 2021 ONSC 5140, at para. 87; and Stephens v. Stephens, 2016 ONSC 367, at paras. 33-34. See also Lerus v. Vilgrain, 2020 ONCJ 77, at paras. 189 and 191.
[^10]: See Danylkiw v. Danylkiw, 2003 CanLII 2283 (ON SC), [2003] 37 R.F.L. (5th) 43 (Ont. S.C.J.) ("Danylkiw"), at para. 57, aff’d 2004 CanLII 34838 (ON CA), [2004] O.J. No. 4411 (C.A.); Rick v. Brandsema, 2009 SCC 10, at para. 64.
[^11]: McCowan v. McCowan, (1995), 1995 CanLII 1085 (ON CA), 24 O.R. (3rd) 707 (C.A.), at para. 19.
[^12]: Mohamed v. Mohamed, 2018 ONCJ 530, at para. 49; Joshi v. Joshi, 2014 ONSC 4677.
[^13]: Danylkiw, at para. 60, citing Gregory v. Jolley et al. (2001), 2001 CanLII 4324 (ON CA), 54 O.R. (3rd) 481 (C.A.), at para. 15.
[^14]: Novikova v. Lyzo, 2019 ONCA 821 ("Novikova"), at para. 14.
[^15]: Beals v. Saldanha, 2003 SCC 72 (“Beals”), at para. 32.
[^16]: Beals, at para. 37.
[^17]: Essa v. Mekawi, 2014 ONSC 7409 (“Essa”), at para. 69, citing Coutu v. Gauthier Estate, 2006 NBCA 16.
[^18]: Abraham v. Gallo, 2022 ONSC 1136 (“Abraham”), at para. 63.
[^19]: Salehi v. Tawoosi, 2016 ONSC 540 (“Salehi”), at para. 36; Wilson v. Kovalev, 2016 ONSC 163, at paras. 13-14; Abraham, at paras. 64-65; Mattar v. Elbarbary, [2019] O.J. No. 5127 (S.C.J.), at para. 29; and Martinez v. Basil, 2010 ONSC 2038, at para. 11.
[^20]: Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218 ("Powell").
[^21]: Powell, at p. 228; Novikova, at para. 16; Pitre v Nguyen, 2007 BCSC 1161, at paras. 17-18; and Salehi, at para. 35.
[^22]: Beals, at para. 51. See also Sangi v. Sangi, 2011 BCSC 523, at para. 198, where the British Columbia Supreme Court wrote that the rule from Powell was “modestly expanded” in Beals.
[^23]: Travers v. Holley, [1953] 2 All E.R. 794 (Eng. C.A.), at p. 32, cited in Powell, at p. 228.
[^24]: Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, at paras. 28-34.
[^25]: See e.g., Government of Canada, “Modernizing Canada’s immigration system to support economic recovery and client experience”, January 31, 2022, available at: https://www.canada.ca/en/immigration-refugees-citizenship/news/2022/01/modernizing-canadas-immigration-system-to-support-economic-recovery-and-improve-client-experience.html.
[^26]: Novikova, at para. 15; Abraham, at para. 10.
[^27]: The Applicant's experts were Dr. Ridwanul Hoque of Charles Darwin University in Australia and Mr. Mustafizur Rahman Khan, an advocate enrolled with the Bangladesh Bar Council since 1999.
[^28]: The Respondent's expert was Md. Munsurul Hoque Chowdhury, a Senior Advocate and former Justice of the High Court Division of the Supreme Court of Bangladesh.
[^29]: I note that Bangladeshi law also provides a procedure in cases in which a divorce is initiated by a wife, but that is not relevant to this proceeding and will not be discussed.
[^30]: In his opinion, Dr. Hoque is here quoting from the opinion of S.A. Rahman J. of the Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhamamd Yusuf (1963), 15 D.L.R. 9.
[^31]: Md. Chowdhury stated that an Arbitration Council is only formed in about 5% of the cases, due to the lack of staff to deal with the reconciliation process between parties in the thousands of divorces occurring each year in Bangladesh. Neither of the Applicant's experts disputed this assertion by Md. Chowdhury.
[^32]: Gray v. Gray, 2017 ONCA 100.
[^33]: See Davis v. Morris, 2006 CanLII 8196 (ON CA), [2006] O.J. No. 1043 (C.A.), at para. 21, where the Court of Appeal relied on the Primary Objective in deciding to set aside a default judgment. Though I do not rely on the Primary Objective as an independent ground to set aside the Consent Orders, I have considered it in interpreting Rule 59.06 (2) (a).
[^34]: Virc v. Blair, 2014 ONCA 392, at para. 58.
[^35]: 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (S.C.J.), at para. 23.
[^36]: When this matter first came before me in March 2021, the Applicant had relied upon the December 31, 2020 Mayor’s letter (stating that the Divorce Notice had never been received by her office) as further evidence of the fact that the Divorce Notice was fraudulent.
[^37]: These pleadings were originally drafted in Bengali. English translations, agreed by the parties to be true and correct, were filed with the Court.
[^38]: On February 24, 2021, the Chief Judicial Magistrate found that the police investigation report had been prepared properly, accepted it, and dismissed the Applicant's Criminal Complaint. This proceeding is described in more detail below.
[^39]: As is discussed below, in these criminal proceedings the Applicant was in fact charged and convicted of a number of criminal offences, including fraud and criminal intimidation.
[^40]: I note that the Adult Children were living in Toronto in November 2016, and that there is a 10-hour time difference between Dhaka and Toronto time.
[^41]: I note in passing that this finding by the Police Investigators clarifies an issue that I was not able to resolve in my July 2022 Endorsement, namely, the location of the apartment where the Applicant married Towfique in May 2020. In my July 2022 Endorsement, I observed that the witnesses who attended the wedding were unable to identify the address of the building where the ceremony took place. However, one of the witnesses (the Imam who had performed the wedding) referred at one point in his evidence to flat 4F in the Shurma Bhaban Apartment in the Mirpur district of Dhaka. Given that the Applicant and Towfique lived together in that very flat up until July 2020, it seems very likely that this was where the May 2020 wedding between the Applicant and Towfique took place.
[^42]: This is because a former spouse cannot bring a support claim under the Family Law Act, and a former spouse can only bring a claim for corollary relief under the Divorce Act if the court was the one that granted the parties their divorce. This bars all claims for spousal support for former spouses that were divorced outside of Canada. See Okmyansky v Okmyansky, 2007 ONCA 427 (“Okmyansky”), at paras. 31 and 42; Rothgiesser v. Rothgiesser (2000), 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577 (C.A.) at paras. 28-30.
[^43]: See the Family Law Act, s. 7 (3).
[^44]: See e.g., Li v Li, 2021 ONCA 669.
[^45]: Hevey v. Hevey, 2021 ONCA 740, at para. 40, citing Douthwaite v. Douthwaite, 1997 CanLII 24487 (ON SC), [1997] 32 R.F.L. (4th) 90 (Ont. Gen. Div).
[^46]: See my July 2022 Endorsement, at paras. 29–33.
[^47]: Although never specifically pleaded, in her most recent affidavits filed in October and November 2022, the Applicant claimed that she and the Respondent must have reconciled prior to March 2017. In support of this claim, she noted that, during this period of time, she and the Respondent had taken a number of flights together and stayed together at certain hotels. However, she could not explain how any such reconciliation could have occurred if the Respondent had never delivered the Divorce Notice to her in the first place. In any event, the fact that the Applicant and the Respondent informed their Adult Children that their divorce had become effective in March 2017 belies any suggestion that the parties had reconciled prior to that date.
[^48]: Novikova, at para. 16.
[^49]: I consider below under the heading "public policy" whether this Court should refuse to recognize the 2017 Divorce because the notice requirements of Bangladeshi law are insufficient.
[^50]: 2008 FC 168, [2008] 4 F.C.R. 531 ("Amin").
[^51]: 2019 ONSC 6394 ("Al Sabki").
[^52]: 2021 ONSC 3562 ("Abdulla").
[^53]: See Abraham; Kadri v. Kadri, 2015 ONSC 321.
[^54]: The principle that one cannot apply a rule to others that one is not prepared to observe oneself is grounded in basic principles of morality, since one should act “only in accordance with that maxim through which you can at the same time will that it become a universal law.” See I. Kant, Groundwork for the Metaphysics of Morals, (M. Gregor ed.) Cambridge University Press, 1997, at p. 31.
[^55]: See the Family Law Rules, s. 2 (2), (3) & (4).
[^56]: See Bhasin v. Hrynew, 2014 SCC 71 (recognizing good faith in contractual performances as a general organizing principle of the common law of contract).
[^57]: See Rick v. Brandsema, 2009 SCC 10, at para. 47, where the Supreme Court emphasized the importance of full and honest disclosure in the context of financial information in matrimonial disputes because of the “uniquely vulnerable circumstances” in these kinds of cases.
[^58]: Essa, at para. 85.
[^59]: See Okmyansky, at para. 43. See also Cheng v. Liu, 2017 ONCA 104, at para. 25.
[^60]: See the Family Law Act, s. 7 (3).
[^61]: See the Family Law Act, s. 2 (8) (b).