Superior Court of Justice
COURT FILE NO.: FS-20-00019436
DATE: 20221228
ONTARIO
BETWEEN:
Tatiana Vyazemskaya Applicant
– and –
Dzhamshid Safin Respondent
COUNSEL:
Svetlana Cocieru, for the Applicant
Self-represented respondent
HEARD: November 30, 2022
J. steele j.
[1] The applicant, Tatiana Vyazemskaya, brought a motion for an order to set aside a divorce order from Russia that was obtained by the respondent, Dzhamshid Safin, about two months after he moved out of the matrimonial home. I heard the motion on August 26, 2021. I ordered that oral evidence and cross examinations were required in order to make the necessary findings of credibility. Accordingly, I ordered a half day trial of an issue before me, which was heard on November 30, 2022.
[2] The parties provided their evidence in chief by way of affidavit and both parties were cross examined on their affidavits.
[3] This matter is really about spousal support. If the Russian divorce order is enforceable in Ontario, Ms. Vyazemskaya cannot claim spousal support here. There is no provision or entitlement for spousal support for Ms. Vyazemskaya in Russia.
[4] For the reasons set out below, I have determined that the Russian divorce order shall not be recognized in Ontario.
Background
[5] The parties met around 2010 and started living together at the end of 2011. They were married on or about November 22, 2012 in Russia. There is one child of the marriage, K.S. (born December 8, 2012).
[6] The family immigrated to Canada in March 2018. They reside in Canada and are permanent residents of Canada. Mr. Safin is employed in Canada.
[7] Mr. Safin moved out of the matrimonial home on November 17, 2019. However, there is some disagreement between the parties as to when they separated, which is discussed further below.
[8] On or about November 20, 2019, three days after moving out of the matrimonial home, and over a year and half after the parties moved together as a family to Canada, Mr. Safin applied for a divorce in Russia.
[9] After learning of the divorce proceedings, the applicant filed an objection with the courts in Russia (the “Objection”), stating that, among other things, the proceedings ought to be determined in their place of residence in Toronto, Canada in accordance with the laws of that jurisdiction. An English translated version of the objection was included with the record. The Objection stated, among other things:
While I was trying to peacefully negotiate with the plaintiff and sign an agreement of separation in Canada, with adequate financial support from the plaintiff, due to the fact that, through the fault of the plaintiff, I now have no job and no opportunity to study, since I depend on the plaintiff’s income, the plaintiff decided to go to the court of Russia in order to avoid a proper financial support provided for by Canadian law.
[10] The Justice of the Peace in Russia granted the divorce on or about January 13, 2020 (the “Russia Divorce Order”).
[11] The applicant commenced proceedings in the Ontario Court of Justice on July 15, 2020. The proceedings were transferred to this court.
[12] At the motion, I determined that Ms. Vyazemskaya had notice of the divorce proceedings in Russia and received the documents. I further determined that the parties had a real and substantial connection to Russia.
[13] However, there was conflicting affidavit evidence regarding whether Mr. Safin preemptively sought and obtained the divorce in Russia in order to avoid paying spousal support to Ms. Vyazemskaya in Ontario. Accordingly, I ordered a half day trial of an issue before me.
Analysis
[14] The applicant is seeking that the Russian Divorce Order, dated January 13, 2020, be set aside.
Presumption of Validity of Russian Divorce
[15] Pursuant to section 22 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.):
(1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.
(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.
(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.
[16] Section 22(3) of the Divorce Act is interpreted to permit the court to use conflict of law principles and the common law to recognize a foreign divorce: Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362, at para. 9. A divorce that is granted in a foreign jurisdiction is presumed to be valid. The onus rests on the applicant to convince the court that the divorce ought to be set aside.
Implications in Ontario if the Russian divorce is valid
[17] Parties who have a foreign divorce that is regarded as valid in Ontario cannot obtain spousal support. The Court of Appeal has also determined that Ontario courts have no jurisdiction under the Divorce Act to deal with spousal support as corollary relief, unless the parties have been divorced under a divorce granted pursuant to the Divorce Act: Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, at para. 25.
[18] Accordingly, if the Russian Divorce Order is recognized and enforceable in Ontario, the applicant cannot seek spousal support in Ontario.
Spousal Support
[19] The evidence was that for a short period of time after the parties separated, Mr. Safin voluntarily made support payments to Ms. Vyazemskaya, which stopped in or about May 2020. Mr. Safin states that there were some additional payments (in addition to child support) made after May 2020, but Ms. Vyazemskaya states that these payments were loans. To the extent that Mr. Safin made spousal support payments these ought to be taken into account in any spousal support order.
[20] The applicant was the primary caregiver for K.S. and is currently in dire financial circumstances. Although Ms. Vyazemskaya was a lawyer in Russia, she stayed at home to look after K.S. after she was born in 2012. Mr. Safin stated that Ms. Vyazemskaya’s role in the family following K.S.’s birth was as a housewife. Mr. Safin discouraged her from pursuing her education and English language in Canada. Ms. Vyazemskaya required a Russian interpreter during the proceedings.
[21] Mr. Safin’s evidence was that at the time the parties immigrated to Canada (2018), Ms. Vyazemskaya was making the equivalent of about $100 per month in Russia, and he was earning around $4000-$5000 per month.
[22] Ms. Vyazemskaya currently receives child tax benefits of $600 per month and receives child support for K.M. from Mr. Safin in the amount of $800 per month. Even Mr. Safin acknowledged that without financial support from him, it would be hard for Ms. Vyazemskaya to survive. He further provided his view that he had moral obligations to the applicant, which in his view he fulfilled, and that Ms. Vyazemskaya has to do something to be self-sufficient. He further acknowledged that she primarily cares for K.S.
[23] By contrast, Mr. Safin has a Ph. D., is an engineer, employed as a manager, and earns approximately $85,000 per year.
[24] Under Ontario law there is a strong likelihood that a court would determine that Ms. Vyazemskaya has an entitlement to spousal support. Her position is that Mr. Safin knew this and secured a divorce in Russia to avoid this obligation.
[25] The evidence is that in Russia a former spouse may only seek spousal support in one of three cases: (1) when pregnant: (2) when caring for a child under the age of one years old; and (3) when physically or mentally incapable to work. Ms. Vyazemskaya does not fall within any of these enumerated categories and therefore would not be entitled to spousal support under Russian law. This was not disputed by Mr. Safin.
Circumstances where the courts will refuse to recognize a foreign divorce
[26] As set out in Wilson, at para. 10, there are several grounds upon which the court will decline to recognize a foreign divorce:
At common law, there are presumptions in favour of the validity of a foreign divorce decree. Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained (Powell v. Cockburn, 1976 CanLII 29 (SCC), [1976] S.C.J. No. 66 (S.C.C.); Martinez v. Basail, 2010 ONSC 2038 (S.C.J.); Janes v. Pardo, Supra.) The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:
The Respondent did not receive notice of the Divorce Application;
The foreign divorce is contrary to Canadian public policy;
The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
Where there is evidence of fraud going to the jurisdiction of the granting authority; or
There was a denial of natural justice by the granting authority in making the divorce order.
[27] The question of when the court ought to invoke the defence of public policy was addressed by the Supreme Court of Canada in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. The Supreme Court stated, at para. 71, that “the public policy defence turns on whether the foreign law is contrary to our view of basic morality.” Further, at para. 76, an argument based on public policy “should not simply succeed for the sole reason that the foreign jurisdiction would not (or did not) yield the same result as might occur in Ontario or Canada.” The Supreme Court of Canada clarified, at para. 75, that the defence of public policy “is not a remedy to be used lightly” and it should have a “narrow application”.
[28] There have been cases in Canada where the courts have refused to recognize a foreign divorce based on public policy grounds. The applicant points to Zhang v. Lin, 2010 ABQB 420, 92 R.F.L. (6th) 138 and Marzara v. Marzara, 2011 BCSC 408, [2011] B.C.J. No. 579.
[29] In Zhang v. Lin, the husband had a real and substantial connection to Texas, United Stated, and obtained a divorce there. However, the court refused to recognize the divorce because of Texas’s lack of spousal support. Accordingly, at paras. 68, 70 and 71, the court refused to recognize the divorce on policy grounds as follows:
I have concluded that the Texas divorce should not be recognized in Canada because its implications are contrary to Canadian public policy.
In coming to that conclusion, I have taken the following into account:
- the support of former spouses is an important component of Canada’s divorce laws. Although divorce legislation requires that each case be considered on its own merits, Canadian law recognizes that some spouses are entitled to support from a former spouse even after the marriage is ended and, in the case of long marriage where the relationship built an economic dependency on the part of one spouse, even for potentially long periods of time after the marriage ended. Moreover, these policy positions relative to spousal support have developed in the context of debate other policy alternatives such as the clean break approach and the presumptive award. Therefore, the conclusion that some former spouses are entitled to ongoing support is a well settled and important policy.
In summary, were it not for Texas’ treatment of support for adult children and for spouses, the Texas divorce might have been recognized in Canada despite the fact that the Texas proceedings were apparently commenced in breach of the applicable residence rule. However, the clear differences in treatment of child and spousal support between Texas law and Canadian law justify Canada’s non-recognition of a Texas divorce in the circumstances here.
[30] The respondent argues that Zhang ought to be distinguished because Texas law did not provide any support. By contrast, he states that Russian law provides higher child support than Canadian law.
[31] The court in Marzara applied similar public policy reasoning. In that case, the parties had been married in Iran and subsequently moved to Canada. The husband obtained a divorce in Iran. The court was satisfied that there was a real and substantial connection. However, the court in Iran ordered the wife a small support payment of US$1500.00, despite the family assets being worth close to $4 million. Among other things, the court concluded that the husband’s sole purpose in bringing divorce proceedings in Iran was to ensure that British Columbia would not have the jurisdiction to make orders for spousal support and property division. The court stated, at paras. 78 and 79:
Mr. Marzara testified, and I find, that his purpose in instituting the divorce proceedings in Iran was to ensure that this court would not make orders concerning spousal support and division of assets. In other words, the Iranian proceedings were initiated by Mr. Marzara in order to avoid what would otherwise be his legal responsibilities.
In summary, despite the finding that the parties had a real and substantial connection with Iran, I have concluded that recognition of the Iranian divorce would be contrary to Canadian public policy as the Iranian proceedings were commenced to circumvent a Canadian court’s adjudication on the issues of spousal support and division of assets and the Iranian disposition does not appear to accord with Canadian public policy in these matters. [emphasis added]
[32] As set out above, the starting point is that the Russian Divorce Order is enforceable in Ontario. In order for the narrow defence of public policy to apply, the court must conclude that the Russian “procedure would offend the Canadian concept of justice” (Beals, at para. 77).
Is the Russian Divorce Order contrary to Canadian public policy
[33] In considering whether the Russian Divorce Order is contrary to Canadian public policy, the history leading up to the parties’ separation and the Russian Divorce Order, as well as the parties’ behaviour following the Russian Divorce Order, is important. As noted above, the implications for both parties, and in particular Ms. Vyazemskaya, are significant.
[34] The applicant submits that the respondent forum shopped and sought a divorce in Russia preemptively because it was financially advantageous for him to obtain a divorce in that jurisdiction. In her affidavit, Ms. Vyazemskaya stated:
It is obvious to me that the Respondent is attempting to minimize his support payments. On the one hand he is following the Russian legislation with respect to our Divorce Order and the fact that he is not pay spousal support to me. On the other hand, he is following the Canadian legislation with respect to child support and not the Russian legislation which provides for payments that amount to 25% of disposable monthly income. The Respondent is cherry picking those forums that provide him with a lesser financial obligation towards his first family notwithstanding my dire financial need and the fact that since 2018 we actually resided in Canada. This cherry picking is not in the interests of justice and has resulted in the Respondent actually “getting out of the water dry” and completely avoiding his real and substantial financial obligation towards me.
[35] Mr. Safin stated that he applied for the divorce in Russia “due to critical lack of knowledge and understanding Canadian Family law and legal system, [its] overwhelming complexity as well as inability to afford [a] professional lawyer’s help or invest [his] personal time while having several jobs and going through major life disruption.” Mr. Safin sent an email to Ms. Vyazemskaya on or about October 29, 2019 indicating that he did not understand Canadian laws and did not have time to do this because he was working to support the family.
[36] Mr. Safin stated that he had other reasons for applying for the divorce in Russia including the fact that generally divorce in Russia is much faster to obtain. In addition, he also wanted to be divorced so he could move on with his personal life.
[37] Mr. Safin’s claim that he filed for divorce in Russia because of the complexity of the Ontario legal system is difficult to accept given that Mr. Safin is highly intelligent and ably represented himself on this motion, filing comprehensive materials, including his affidavit evidence and a factum.
[38] It is likely true that Mr. Safin filed for divorce in Russia because it was faster, but not for the reasons he stated. It was faster and completed before the dust settled on the relationship breakdown, giving Ms. Vyazemskaya virtually no opportunity to understand the legal consequences to her in Ontario if her husband preemptively obtained a divorce in Russia. Although Ms. Vyazemskaya was familiar with Russian laws, she was not familiar with Ontario law. In her email to Mr. Safin, dated October 28, 2019, she stated: “Even if you have a decision of the Russian court on divorce (which you are unlikely to receive without my participation), this does not affect the fact that I can request financial support for me and the child here [in Ontario] at any time.” Further, Ms. Vyazemskaya had extremely limited resources and was dealing with K.M. and any other fallout immediately following Mr. Safin abruptly leaving the family home.
[39] The applicant’s evidence is the parties had discussions regarding separation in the summer of 2019 after a consultation she had with the Barbra Schlifer Women’s Centre. She states that she was trying to negotiate a peaceful resolution with Mr. Safin on terms that he would at least pay for her transportation to and from work if the parties separated. The applicant’s evidence is that the respondent stated that he did not find her request reasonable.
[40] In October 2019, Mr. Safin removed certain important documents from the parties’ apartment without the applicant’s permission when she was out shopping with K.S. The documents Mr. Safin removed included their marriage certificate and Russian tax documents. Although Mr. Safin stated that he took the applicant’s documents by accident, it was clear that he intended to take the parties’ marriage certificate. He stated in his email dated October 26, 2019 in regard to the marriage certificate: “I will need it for the purposes of divorce and I do not keep it, but use it for its intended purpose.” By this time the parties knew that their marriage was effectively over, it was just a matter of determining the terms of the dissolution.
[41] The applicant’s evidence is that when she asked him why he took the documents, including the marriage certificate, he told her that he did not want to pay spousal support to her because it was unfair, and she needed to find employment and support herself. Ms. Vyazemskaya further stated that Mr. Safin advised her that as a citizen of Russia it was his right to apply for a divorce in Russia.
[42] Mr. Safin knew that Ms. Vyazemskaya intended to start divorce proceedings in Ontario if they were unable to resolve the issues between them. He also knew that if the proceedings were in Ontario, he would have to pay Ms. Vyazemskaya spousal support. The following are excerpts from correspondence from Ms. Vyazemskaya to Mr. Safin, which were sent prior to Mr. Safin filing for divorce in Russia:
- “…I would have gone to a lawyer today and they would have squeeze you out for at least 2500 for MY MAINTENANCE and for the maintenance of the child…” (October 30, 2019)
- “…If you don’t want to sign the agreement, there is nothing left for me but the court, I will be forced to go to court, I need an agreement to confirm my status and you know this very well. No agreement – I’m going to court, you leave me no choice…” (November 5, 2019)
- “…If you do not go and sign the agreement, I will be forced to get a divorce through a Canadian court, with the help of a lawyer…” (November 13, 2019).
[43] In my view, the email correspondence between the parties supports Ms. Vyazemskaya’s position that Mr. Safin sought and obtained the divorce in Russia preemptively so that she could not obtain a divorce and spousal support in Ontario.
[44] On October 28, 2019, Ms. Vyazemskaya sent Mr. Safin an email with her proposal for a separation agreement. She explained the divorce process in Canada. She advised Mr. Safin of what his child support obligations would be under Russian legislation (25% of income).
[45] Mr. Safin responded on November 5, 2019 stating that her financial offer was not acceptable to him. Ms. Vyazemskaya’s evidence was that ultimately Mr. Safin refused to sign a separation agreement without terms (i) regarding his religious beliefs, and (ii) specifying that no spousal support was payable. I accept this evidence given that it is consistent with the email Mr. Safin sent on November 5, 2019, stating that Ms. Vyazemskaya’s financial offer was unacceptable, and the email negotiations back and forth between the parties regarding the terms of separation, prior to Mr. Safin filing for divorce in Russia.
[46] Although the parties had been discussing separation and the terms of a potential separation agreement, they were still residing under the same roof and parenting K.S. until November 17, 2019 when Mr. Safin walked out. Then, three short days later he filed for divorce in Russia, having removed the marriage certificate a few weeks prior in anticipation of this step. The parties tried to negotiate first, but when a suitable agreement could not be reached, Mr. Safin made sure he filed first.
[47] At the time Mr. Safin filed for the divorce in Russia, the dust had not yet settled on the marriage breakdown. In his affidavit, Mr. Safin stated that since November 17, 2019 the parties lived apart and did not resume a spousal relationship. He stated that he never stayed overnight except for one case when the applicant begged him to stay. However, Mr. Safin kept a key to the applicant’s apartment until May 2020. In fact, the parties continued to have sexual relations and sleep together not infrequently for months after he moved out of the matrimonial home. Although Mr. Safin initially claimed the parties only had sexual relations once or twice after he moved out, the evidence suggests otherwise:
- In his oral evidence he stated that he only went over to see K.S. and help with her bedtime routine. However, on at least one occasion he arrived at 11 p.m., after K.S.’s regular bedtime.
- There is evidence that Mr. Safin purchased condoms on another occasion before he went over purportedly to see K.S.
[48] Further in his closing submissions he stated that they had sexual relations “several times”. In his testimony he indicated that after November 2019 the parties engaged in sexual relations “at least on a couple of occasions” but that he did that so that Ms. Vyazemskaya may fall asleep and to “calm her down”. He stated that they were no longer a family at that time and were separated.
[49] Both parties confirmed that they spent New Year’s Eve 2019 together. Ms. Vyazemskaya understood that the parties reconciled then until May 2020.
[50] There was certainly some blurring of the status of their relationship between November 2019 and May 2020. In any event, under divorce law in Canada, they would still not have been entitled to a divorce in January 2020 (when it was granted in Russia), having not lived separate and apart for at least a year.
[51] I further note that Mr. Safin acknowledged that he was aware of and visited a chat group known as the Russian Forum. Ms. Vyazemskaya stated the following about the Russian Forum:
It must be noted that even before we commenced filling out our immigration documents, the Respondent became a member of “The Russian Forum” which is a website wherein members chat amongst themselves with respect to specific topics, such as immigration, divorce, life in Canada. Members of this chat encourage each other and provide each other with “expert” advice to get divorced in other countries and not in Canada so that they avoid paying spousal support in Canada.
[52] Mr. Safin may have had more than one reason for filing for divorce in Russia. However, it is clear to me that a driving factor was avoiding court imposed spousal support obligations under Ontario law. The parties had been discussing the terms of their separation. Ms. Vyazemskaya was making demands regarding spousal support that Mr. Safin did not find acceptable. Mr. Safin was willing to pay some support to Ms. Vyazemskaya, but only on his terms (he provided a few options). Ms. Vyazemskaya made it clear in her communications that if they could not resolve the matter, she would be going to court in Ontario and seeking “maintenance” for her and K.M. through the Ontario courts. Mr. Safin made sure this would not happen by preemptively filing for divorce in Russia.
[53] It is one thing if parties divorce in another jurisdiction and the by-product is that one spouse cannot obtain spousal support in Ontario. However, in my view, it is another thing altogether if one party races to another jurisdiction to obtain a foreign divorce to avoid paying spousal support under Ontario law, when the family resides in Ontario.
[54] Regardless of whose idea it was to come to Canada, they had moved to Ontario as a family in 2018 and started their new lives here. They were permanent residents in Canada. Mr. Safin was working in Canada. Ms. Vyazemskaya was looking after K.M. and the home, which was a decision they made as a family.
[55] As noted above, Ms. Vyazemskaya would not be entitled to spousal support under Russian law. The child support would be somewhat higher under Russian law.
[56] On balance, I am satisfied that Mr. Safin preemptively sought and obtained the divorce in Russia to avoid paying spousal support under Ontario law to Ms. Vyazemskaya. There are cases where a parties’ actions have been determined to be contrary to Canadian public policy: Sonia v. Ratan, 2022 ONSC 6340, at paras. 213 and 214, Essa v. Mekawi, 2014 ONSC 7409.
[57] I recognize that the defence of public policy is very narrow, and that it is not a remedy that the court should use lightly. However, in my view, the circumstances of the instant case, including Mr. Safin’s actions, are such that the Russian divorce should not be recognized in Ontario on public policy grounds.
[58] Similar to Marzara, Mr. Safin raced to court in Russia to obtain a divorce in order to circumvent the adjudication of spousal support under Ontario law. As noted above, he filed for divorce in Russia three days after leaving the matrimonial home, having previously secured the marriage certificate. From a policy perspective, Ontario law recognizes the obligation to provide support to a spouse. The Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) recognizes, in s. 30, that spouses have an obligation to provide support for the other spouse “in accordance with need, to the extent that he or she is capable of doing so.” The FLA builds in other protections, including the ability of the court to set aside a provision for support or a waiver of the right to support in a domestic contract, if the provision for support or the waiver of the right to support results in unconscionable circumstances: FLA, s. 33(4). The FLA also contemplates the purposes of a spousal support order, in s. 33(8), including to make fair provision to assist the spouse to become able to contribute to his or her own support; and to relieve financial hardship. Mr. Safin sought to circumvent this obligation.
[59] Ms. Vyazemskaya was previously employed as a lawyer in Russia. She stated that she wants to get some education and language training here so she can work here. She seeks spousal support from Mr. Safin so that she can take the necessary training to support herself. As mentioned above, she is also currently in dire financial straits. She seeks spousal support to relieve financial hardship. These are the reasons Ontario law provides for spousal support. I further note that Mr. Safin earns a good income in Ontario and has the means to provide support.
[60] In addition, it would not be possible in Ontario for these parties to be divorced two months after Mr. Safin walked out, as there was not yet a breakdown in marriage as defined in the Divorce Act. However, the parties were divorced in Russia within two months of separating.
[61] This case involves exactly the sort of “moral” and “fundamental values” that underlie the public policy defense. The Russian divorce, which was obtained less than two months after separation, gives Mr. Safin a back-door with which to escape his legal responsibilities, and runs counter to the four spousal support objectives set out in s. 15.2(6) of the Divorce Act.
Disposition and Costs
[62] For the reasons set out above, I have determined that, in the circumstances of the present case, the Russian divorce should not be recognized in Ontario.
[63] The parties are encouraged to resolve the issue of costs. If they are unable to do so by January 27, 2023, they shall notify my judicial assistant. In this case, the applicant shall file her costs submissions (not to exceed 5 pages, exclusive of Bill of Costs and Offers to Settle) by February 10, 2023. The respondent shall file his costs submissions (not to exceed 5 pages, exclusive of Bill of Costs and Offers to Settle) by February 24, 2023.
J. Steele J.
Released: December 28, 2022
COURT FILE NO.: FS-20-00019436
DATE: 20221228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tatiana Vyazemskaya Applicant
– and –
Dzhamshid Safin Respondent
JUDGMENT
J. Steele J.
Released: December 28, 2022