Superior Court of Justice
COURT FILE NO.: FS-21-24032 DATE: 20230213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RAHA MEHRALIAN Applicant
– and –
MICHAEL DUNMORE Respondent
Counsel: Anthony Macri, for the applicant Meghan Melito, for the respondent
HEARD: February 9, 2023
FL MYERS J:
ENDORSEMENT
This Proceeding
[1] The applicant brought this proceeding in 2021 seeking a divorce, corollary relief, and equalization of property. She says that the parties moved here, had their child here, and this proceeding is therefore properly brought here.
[2] The respondent submitted early on that the courts of Ontario do not have jurisdiction in this matter. He says that neither party resided here for a year as required under the Divorce Act. Their last place of permanent residence was Oman. He also alleged that he intended to move to United Arab Emirates for employment and the parties’ stop here was merely a temporary waystation on the road to UAE. He claims that the applicant is wrongfully retaining the child of the marriage in Ontario and seeks a declaration under s. 40 of the Children’s Law Reform Act that the child should be returned to Oman
The Omani Proceedings
[3] After the commencement of proceedings here, the respondent went to Oman and obtained a religious talaq divorce there.
[4] The respondent then started a court proceeding in Oman seeking recognition of his divorce and joint custody of the child.
[5] The applicant defended and initially succeeded in obtaining an order from the Omani court that Omani law did not apply. The respondent appealed. The applicant did not send her counsel to the appeal. She says she could not afford to do so due to the respondent not paying her any support.
[6] While the appeal was outstanding, the respondent then appeared before a notary public in Oman to obtain a divorce with more formality.
[7] There is a contested issue as to whether the parties had any connection with Oman at the time the respondent went to court in Oman and when he went to the notary. There is also a contested issue as to the quality of notice of the Omani divorce given to the applicant, if any.
[8] The respondent then succeeded on his appeal. The appeal court ruled that Omani law applied. It sent the matter back to the lower court for hearing on the merits of the validity of the divorce and custody under applicable Omani law.
[9] The applicant participated in the ensuing proceeding in Oman on the merits. She claimed the respondent was misrepresenting his religion to the court. She showed that the respondent had applied to the notary to get a divorce claiming he was Muslim while applying to the court saying that he was Christian (which mattered to jurisdiction).
[10] The applicant also claimed that, under Omani law, when the respondent claimed to be Christian, he invalidated their marriage. On that basis, the respondent’s notary divorce was invalid because the parties were already divorced by operation of law. In addition, the applicant claimed that the invalidity of the marriage caused by the respondent claiming to be Christian made their child illegitimate, and, as a result, she was entitled to sole custody of the child.[^1]
[11] The lower court heard the claims of both sides on their merits and ruled that the Omani notarial divorce was valid. The court awarded custody of the child to the applicant.
[12] The applicant then appealed on the merits of the divorce holding. The respondent cross-appealed on custody.
[13] In its January 16, 2023 decision, the appeal court described the applicant’s position as follows:
In deliberation of the case before the Court of First Instance, the [applicant] attended and filed a subsidiary case, through which she requested a ruling to invalidate the divorce document issued by the notary public, based on the fact that the Respondent (the original Plaintiff) had apostatized from Islam and thus [she] becomes irrevocably divorced from him according to the established sayings of the jurists.
[14] That is, the applicant challenged the validity of the notarial divorce as a matter of domestic Omani law.
[15] The appellate court explained the decision below upholding the divorce on its merits as follows:
The Court based its Judgment in the divorce lawsuit on [respondent’s] admission of divorce according to the divorce document, and that the validity of the document is not affected by the [applicant’s] plead in regard to the invalidity of the document due to the [Respondent’s] apostasy from Islam, as the result is the same.
[16] Both parties attended the appeal with their counsel. The court recited the applicant’s arguments about the respondent’s religion, including her references to the case before Canadian courts and the “deliberate misleading by the respondent”.
[17] On the validity of the divorce, the appellate court held:
The Court did not find through the papers and documents submitted in the case that the Respondent has apostatized from Islam and converted to Christianity, and the divorce document did not mention the religion of the Respondent, contrary to the Appellant statement that it was based on misleading information by the Respondent. Moreover, the Appellant contradicts her claim, as she demands that the marriage be invalid because the Respondent is not a Muslim, and at the same time she demands the invalidity of the divorce occurrence and that she is still the wife of the Appellee in order to obtain her marital rights from the Canadian Courts.
[18] On the issue of custody, the court held:
Whereas, in regard to the subject of the sub-Appeal: the Court is of the opinion that the Appealed Judgment was correct according to the sharia and law when it awarded custody to the mother for being the most deserving of custody, and the interest of the child requires this, due to his young age and his need for the tenderness of motherhood more than his need for the father's care, hence, the Court decides to reject this Appeal for not coinciding with the law.
[19] Finally, the appellate court noted in passing that the issue of jurisdiction had already been settled in the prior appeal. The court held:
Whereas, in regard to the plead of lack of jurisdiction of the Omani Courts, this matter has been settled according to the Court of Appeal Judgment No. 420/7101/2021, which ruled that the Omani Courts have jurisdiction to hear the dispute, and that ruling became final and irrevocable.
This Motion
[20] The respondent seeks an order recognizing the Divorce Certificate dated February 27, 2022 that was ruled valid and enforceable by the Omani court.
[21] This application has unfortunately been studded by delay not entirely of the parties’ making. As an application with a child abduction issue, this application needed to be heard with alacrity. It was not.
[22] By orders dated December 21, 2022, and January 18 and 30, 2023, Family Co-Team Lead Shore J. took control of the proceeding. She severed the issue of the validity of the foreign divorce from the issues concerning the jurisdiction of the Ontario court and the child abduction allegations. I heard counsel in a motion format on the foreign divorce issue on February 9, 2023. A trial is scheduled on the remaining jurisdiction and child abduction issues for up to five days commencing March 5, 2023.
The Outcome
[23] If the outcome turned on the facts involving the parties’ connection with Oman or concerning the validity of notice of the divorce allegedly given to the applicant, I could not decide the motion. With the trial involving the same facts coming up in a matter of weeks, it would not be appropriate for me to make findings of fact to create the possibility of inconsistent findings being made at trial.
[24] However, the motion can be determined on facts that are both undisputed and are entirely distinct from the factual issues to be decided at trial.
[25] Regardless of whether the initial religious divorce would have been recognized here, or whether notarization and registration of the religious divorce would have been recognized here, the applicant participated in the court proceedings in Oman on the merits of the issues. She appeared through counsel acting under a power of attorney in accordance with local practice. She contested jurisdiction. She was unsuccessful. She then participated in the merits and asserted that because the respondent declared his religion to be Christian, under Omani law their prior Islamic marriage had been voided. On that basis, she asserted that the respondent’s notarial divorce was invalid because they were already divorced. In addition, she claimed that the result of the invalidity of their marriage, their child was illegitimate under Omani law and that she was entitled to custody of the child.
[26] The applicant could have ignored the divorce granted by the notary and raised defences against its enforcement here. The Court of Appeal’s decision in Abraham v. Gallo, 2022 ONCA 874 stands for the proposition that Ontario law does not recognize bare religious talaq divorces even when formally registered by a government office abroad (as was done here after the notary issued the Divorce Certificate). The applicant could have declined to engage in the Omani court proceedings or, if so advised, drop out after losing the jurisdiction issue.
[27] Whether on any of these courses she would have succeeded here in avoiding the Omani divorce, no doubt, was a question fraught with risk for the applicant. Instead of taking the risk of ignoring the talaq, the notarized, registered divorce, and the Omani court proceedings, and challenging them all here, the applicant decided to participate fully in the Omani proceedings.
[28] In Beals v. Saldanha, 2003 SCC 72, the Supreme Court of Canada reminded us that common law principles remain relevant in assessing the jurisdiction of foreign courts. The common law principles are also expressly preserved in s. 22 (3) of the Divorce Act.
[29] Attornment is a common law principle for recognition of foreign judgments. A party’s decision to voluntary submit to a foreign jurisdiction has been a basis for recognition of foreign judgments for hundreds of years. Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC) at paras 14 to 16. Due to its voluntariness, attornment supersedes the need to assess the parties’ connectedness to a jurisdiction. In Beals, the court found at para. 37:
Although such a connection is an important factor, parties to an action continue to be free to select or accept the jurisdiction in which their dispute is to be resolved by attorning or agreeing to the jurisdiction of a foreign court.
[30] The applicant’s decision to participate in the Omani proceedings was a perfectly rational one. It was also a voluntary choice. So too was her decision to participate on the merits and to advance her own grounds to invalidate the respondent’s divorce, for her own declaration of divorce or invalidity of the marriage, and for custody in Oman.
[31] Now there is a decision of a court of competent jurisdiction declaring the divorce valid and binding on the parties in a proceeding in which the applicant participated. The applicant did not limit her challenge in Oman to just the issue of jurisdiction or applicability of Omani law to the parties. She litigated the merits of the divorce, asserted that under Omani law her marriage was invalidated by the respondent’s declaration of his Christianity, and she claimed and obtained corollary relief i.e., custody.
[32] By any definition, the applicant attorned to the jurisdiction of the Omani courts. She submitted herself to the court’s rulings and claimed substantive relief from the Omani court under Omani law concerning the validity (or invalidity) of her marriage, the validity (or invalidity) of the notarial divorce obtained by the respondent, and the issue of custody of the child.
[33] In my view, the applicant cannot be heard here to challenge the jurisdiction of a foreign court after voluntarily submitting to its jurisdiction and participating in its proceeding.
[34] I do not agree with Mr. Macri’s submission that because the initial divorce was a religious divorce that we would not recognize, we must not recognize the subsequent court ruling. It is the “fruit of the poison tree” in his view.
[35] In Abraham, the Court of Appeal made the point that under s. 22 of the Divorce Act, the court only recognizes a foreign proceeding that “grants” a divorce. Whether a foreign court judgment that just recognizes a talaq divorce or a notarial divorce is enforceable here is an open question. But this case involved more. The applicant asserted that the notarial divorce was invalid. The court ruled that it was valid. The applicant also asserted her own claim as to the invalidity of her marriage. She asked for the application of Omani law and sought custody under its terms.
[36] While the court ultimately upheld the validity of the notarial divorce, the courts at both levels also noted that regardless of whether they recognized the notarial divorce, as sought by the respondent, or recognized the respondent’s change of religion, as asserted by the applicant, the result was the same. Although for different grounds, both parties asked the Omani courts to find that their marriage was dissolved. The courts made that ruling. As a result, the courts went on to consider custody which was ultimately awarded to the applicant.
[37] Ultimately, the courts upheld the validity of the respondent’s divorce and dismissed the applicant’s defence to its validity. These were judicial decisions on contested facts and law. They were not simply an administrative filing.
[38] I am no longer facing the issue of enforcing a talaq divorce or a notarized, registered divorce. I am asked to recognize a decision by a foreign court granted in proceeding to which the applicant attorned. Whether she had notice of the attendance before the notary public or whether the parties had a sufficient connection to Oman to allow us to recognize the court’s jurisdiction, are no longer relevant issues. By attorning and seeking relief under domestic Omani law, the applicant recognized the foreign court’s jurisdiction, and she cannot be heard to challenge it here.
[39] The applicant submits that recognition of the Omani divorce would violate public policy. The applicant offered no evidence to find that Omani law violates the public policy of Ontario beyond the simple assertion that there is no provision for support on divorce in Oman. But, unless I am to conclude that any system of law that does not include support for divorced spouses, specifically as corollary relief in a divorce proceeding, is necessarily void, there is no basis for me to rule that the laws of Oman ought not to be recognized in this case. While our law has strong policies favouring support for divorced spouses based on need and compensation, there is no evidence before me, including from the expert witnesses, about other aspects of the law and society of Oman that deal with family economics and support. I am in no position to condemn an entire system of law for failing to have an aspect that we view as very important without knowing far more about how the law expects people to live before and after divorce more generally. The applicant bore the burden of proof on this issue and did not provide me nearly enough evidence to rule in her favour on this very narrow ground of attack.
[40] It is important to bear in mind that the public policy defence relates to laws and not to the facts of a particular case. See Beals at para 71 et seq. The argument that it is unfair for the respondent to ”run to Oman” to seek to enforce law that favours him, can be turned on its head to argue that the applicant ran here to try to gain the benefit of our laws that are more favourable to her. The Supreme Court of Canada has made it clear that the inquiry into public policy does not generally relate to the facts or the fairness of an individual case. Otherwise, every foreign case would be questioned here by the unsuccessful party who, no doubt, feels unfairly aggrieved. The Supreme Court of Canada says that the public policy issue considers the fairness and acceptability of the laws of the foreign jurisdiction. And, as I have found, the applicant has not put forward a comprehensive basis on which I can assess, let alone rule, that Omani law as applied in this case should be disregarded on public policy grounds.
[41] The applicant also argues that the Omani courts’ recognition of jurisdiction based on the parties’ prior residence in Oman should not be recognized. She argues, with much force, that the respondent made misrepresentations to the Omani court to make it appear that they resided in Oman at the time of the proceeding when at least the applicant, if not the respondent too, were already here. But she had every opportunity to make her arguments to the Omani courts. The courts recited her residency in Canada. They heard her arguments of misrepresentation by the respondent as she chose to make them.
[42] In all, even if we would not recognize a foreign talaq or notarized talaq divorce or a court decision where jurisdiction is obtained by extrinsic fraud, in this case the applicant chose to participate in the proceeding on its merits despite knowing both of those alleged infirmities. Having done so, opposing the respondent’s divorce, seeking a divorce of her own, and obtaining an order for custody, the judgment must be recognized.
[43] Failing to recognize the results of a contested hearing abroad is contrary to principles of comity. Moreover, it would provide incentive for multiple proceedings to see where a party gets the best result. This would also favour the wealthy who can afford to bring multiple proceedings.
[44] By contrast, it is just and equitable to recognize that a party is bound by a decision in a court proceeding in which she participated voluntarily. No one made the applicant oppose the respondent’s notarial divorce on the merits, seek relief based on her own grounds for invalidating the marriage, or seek custody under Omani law. She must be taken to have assessed her options and seen benefit in proceeding on the merits rather than taking the risk of just challenging jurisdiction.
[45] I grant a declaration recognizing the parties’ divorce as granted by the Court of First Instance in Muscat in Case No. 115/1109/2022 as upheld by the Supreme Judiciary Council Court of Appeal in Muscat in Appeal No. 299/7101/2022.
[46] The respondent may deliver costs submissions by February 20, 2023. The applicant may deliver costs submissions by February 27, 2023. Submissions shall be no longer than five pages, double-spaced, with normal margins and no less than 12-point font. Submissions shall be accompanied by Costs Outlines from both parties. Parties may also deliver copies of any offers to settle on which they rely for costs purposes.
FL Myers J
Released: February 13, 2023
COURT FILE NO.: FS-21-24032 DATE: 20230213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RAHA MEHRALIAN Applicant
– and –
MICHAEL DUNMORE Respondent
ENDORSEMENT
FL Myers J
Released: February 13, 2023
[^1]: Previously, the parties went through a form of Islamic marriage so as to ensure that their child would be recognized as legitimate by the applicant’s home country of Iran. The respondent converted to Islam for the marriage ceremony.