Court File and Parties
COURT FILE NO.: FS-18-007150-0000 DATE: 20230905 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sohelia Anita Hamadanizadeh, Applicant AND: Amir Abbas Haydarian, Respondent
BEFORE: L. Brownstone J.
COUNSEL: Esther Lenkinski and Caroline Lutes, counsel for the Applicant Murray N. Maltz, counsel for the Respondent
HEARD: July 18, 2023
Endorsement
Introduction
[1] The applicant wife and respondent husband are citizens of both Canada and Iran. They were born in Iran, moved to Ontario in the 1980s, were married in Ontario, had four children together in Ontario, worked and lived in Ontario, and separated from each other in Ontario.
[2] They were married in 1998 under both civil and religious laws. As is required under Sharia law, at the time of marriage they entered into a Mehr, spelled in English and translated in various ways, but which I shall refer to as a Mehr or marriage portion. The Mehr obliged the husband to give the wife, among other things, 1,000 gold coins. In 2002, both the Mehr and the Certificate of Marriage were registered with the Iranian government by registration with the Iranian embassy in Ottawa.
[3] The parties separated in October of 2018, and on December 21, 2018, the wife started proceedings in Ontario, seeking a divorce, support and equalization. The husband served and filed an Answer, in which he sought relief of his own. Many steps were taken by both parties in the Ontario litigation. Both parties clearly attorned to the authority of the Ontario courts.
[4] In April of 2019, the wife commenced proceedings in Iran to enforce the Mehr. The husband became aware of the proceedings after the wife had obtained judgment against him for payment of the coins. He moved to set the judgments aside, arguing in part that these issues were before the courts in Ontario. His appeals were unsuccessful. In February of 2022, more than three years after the proceedings in Ontario were commenced, he commenced divorce proceedings in Iran. The Iranian courts granted a divorce in June of 2022.
[5] The husband now asks this court to recognize and enforce the Iranian divorce. Because the Iranian divorce, according to the husband, dealt with issues of property and support, he asks that this court dismiss the wife’s Ontario claims for that relief. He concedes that the Iranian court’s decision not to award child support should not be enforced, and also asks that the Ontario courts deal with post-separation adjustments, which he states are not dealt with in Iranian divorces. The wife opposes the husband’s motion for recognition of the Iranian divorce and asks the court for a declaration that the Mehr enforcement does not fully determine the property rights between the parties in the Canadian proceedings.
[6] The Court must determine the following issues:
- Is the Iranian divorce judgment recognizable and enforceable in Ontario?
- If so, does that judgment deal with the parties’ property and support claims on a final basis?
- If the Iranian divorce is not recognizable and enforceable in Ontario, should the court issue the declaration sought by the applicant, that the enforcement of the Mehr does not put an end to her property claims in Ontario?
Issues and Analysis
1. Is the Iranian divorce judgment recognizable and enforceable in Ontario?
Summary judgment
[7] The motion to recognize and enforce the Iranian judgment is a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg 114/99.
[8] Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. In determining whether there is a genuine issue requiring a trial, the court may weigh the evidence, evaluate the credibility of a deponent or draw any reasonable inference from the evidence: Rule 16(6.1).
[9] The Court of Appeal has held in Chao v. Chao, 2017 ONCA 701, at paras. 27-28, that the leading civil summary judgment case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, applies to family law proceedings. The summary judgment process is available if the court can make necessary findings of fact, apply the law to the facts, and if the process is a proportionate, more expeditious and less expensive means to achieve a just result in the circumstances.
[10] In addition, on a motion for summary judgment parties are required to put their best foot forward: Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, at para. 27; Pearson v. Poulin, 2016 ONSC 3707, at para. 40. The motion judge is entitled to assume that the evidence before her is the best evidence available: Chao at para. 24.
[11] The process to be followed by the court is first to determine if there is a genuine issue requiring trial based only on the evidence before the court, without using the expanded fact-finding powers granted to the court in the summary judgment rules. If that process provides the court with “the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure,” summary judgment will issue: Hryniak at para. 66. If there appears to be a genuine issue requiring trial, the court then proceeds to use the powers in the summary judgment rule and determine if the need for a trial can be avoided. The trial judge “may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak at para. 66.
[12] As will be outlined below, reaching conclusions on the enforceability of the Iranian divorce did not require the court to weigh the evidence or evaluate credibility. The decisions were made on the basis of the evidentiary record. The facts are very largely not in dispute.
Governing legal principles
[13] Section 22 of the Divorce Act, R.S.C. 1985, c. 3, governs the recognition of foreign divorces. Subsections 22(1) and (2) govern a divorce that was granted based on residency in the jurisdiction that granted the divorce. Subsection 22(3) provides that “Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act,” thereby retaining the court’s ability to apply the principles of conflicts of law and the common law rules: Abraham v. Gallo, 2022 ONCA 874, 476 D.L.R. (4th) 592, at para. 15. Given that neither party was habitually resident in Iran at the time of the divorce, the parties agree that s. 22(3) governs the issue and that common law rules of recognition and enforceability of foreign judgments apply.
[14] The first question for the court to ask is whether the Iranian court had jurisdiction over the parties and the subject matter of the dispute. Canadian courts will recognize a foreign divorce on any of the following bases: domicile; where the circumstances that resulted in the foreign authority’s jurisdiction correspond to or would have conferred jurisdiction in Canada; or where either party has a real and substantial connection with the foreign jurisdiction: Novikova v. Lyzo, 2019 ONCA 821, at para. 14. If the parties attorned to the foreign jurisdiction, the court need not assess their real and substantial connection; they are taken to have voluntarily selected the jurisdiction in which their dispute is to be resolved: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 37; Mehralian v. Dunmore, 2023 ONSC 1044 at para. 29.
[15] If the Iranian divorce were properly obtained, the wife would have to establish that one of a limited number of defences applies: Abraham at para. 15. These may include a denial of natural justice in the proceedings, such as a failure to receive notice of the proceeding; that the divorce is contrary to Canadian public policy; that the foreign authority did not have jurisdiction under its own laws to grant the divorce; or that there exists evidence of fraud related to the jurisdiction of the foreign authority: Wilson v. Kovalev, 2016 ONSC 163, at para. 10.
Did the wife attorn to Iran’s jurisdiction over the divorce?
[16] Here, the husband takes the position that the wife attorned to the Iranian jurisdiction in two ways – first, by instituting the Mehr proceedings in Iran, and second, by participating in the divorce proceedings there.
Did the wife’s commencement of the Mehr proceedings in Iran amount to attornment to the divorce proceedings?
[17] Whether the wife attorned to Iranian jurisdiction over the divorce by commencing the Mehr proceedings there requires the court to determine whether the Mehr proceedings are so intricately related to the divorce proceedings that they are “part and parcel” of the same dispute. The husband argues, in essence, that it would be arbitrary to separate the Mehr claim from the divorce claims; the Mehr is a binding domestic contract that, he claims, fully determines the parties’ property rights upon divorce. By moving to enforce the contract in Iran, the wife voluntarily chose the Iranian jurisdiction to determine all of the parties’ rights and obligations on marriage dissolution.
[18] The wife argues that the Mehr is separate and distinct from the question of divorce and corollary relief. She brought the Mehr proceedings in Iran because she believed the husband was diverting assets to Iran, and since there is no public registry of property ownership in Iran, bringing the Mehr proceedings there was the only way in which she could determine the extent of the husband’s properties there. She argues that enforcement of the Mehr has no bearing on the status of their marriage, and is an entirely separate proceeding.
[19] To answer this question, the court must look at both the specific text of the Mehr and the expert opinions provided by both parties about the status of the Mehr in Iranian law.
[20] The text of the Mehr appears next to the title “Marriage Portion”. It reads as follows:
Marriage Portion: One copy of the Holy Koran, a pane of silver mirror and a pair of candlesticks, a branch of flower, and 1000 gold coins (Full Bahar Azadi) which are the husband’s liability to be provided for the wife upon her demand.
[21] There is no requirement that the marriage end in order for the wife to seek payment of her marriage portion. The experts acknowledge that while, practically speaking, the enforcement of the Mehr typically occurs when the marriage dissolves, this is not required. Their evidence on this issue is as follows:
a. The wife’s expert, Alireza Forouzandehpour, states that “the marriage portion in Iran has nothing to do with divorce; that is, the wife may claim her marriage portion anytime after marriage formula execution, provided that it being upon request’ which is the case in your client's marriage portion condition in her marriage certificate. Furthermore, claiming the marriage portion is not translated as requesting divorce … the matrimonial life could continue years after receiving the marriage portion.” b. The wife’s experts Maryam Sherafat Moula and Sayed Hamed Hashemi state: “The wife has a choice as to the timing of when she collects the Mehr, and whether she chooses to do so upon marriage, during the marriage, upon divorce, or after the divorce is finalized.” c. The husband’s expert, Faezeh Kashani Nejad states: “A Meher is a negotiated marriage contract which dictates the property rights a wife is entitled to upon dissolution of marriage or separation as well as during the marriage. Legally the wife's entitlement is on demand however traditionally the rights of the wife pursuant to the Meher are exercised at the time of separation as seen in this case. Article 1082 Civil Code of Iran: Immediately after the performance of the marriage ceremony the wife becomes the owner of the marriage portion and can dispose of it in any way and manner she may like.” [Bolded emphasis added.]
[22] Thus, the experts are agreed that the Mehr is a contract that exists separately, and is enforceable separately, from any proceedings that may be taken on marriage breakdown. When the text of the Mehr is “on demand” as this one is, there may be no marriage breakdown at the time proceedings to enforce a Mehr are started. Nor can it be said that the enforcement of the Mehr is part of a larger proceeding; the wife did not need to seek a divorce to bring enforcement proceedings, nor was the husband obliged to commence divorce proceedings once the Mehr proceedings had been undertaken.
[23] I therefore reject the husband’s submission that the wife attorned to the Iranian divorce proceedings by commencing the Mehr proceedings in Iran.
Did the wife’s participation in the Iranian divorce amount to attornment?
[24] A party attorns to a jurisdiction by going beyond challenging the court’s jurisdiction and participating in litigating the merits of the claim: Kunuthur v. Govindareddigari, 2018 ONCA 730, 427 D.L.R. (4th) 120, at para. 18; Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470. The nature and extent of participation is important. In Karkulowski v. Karkulowski, 2014 ONSC 1222, one party commenced a proceeding in Canada, the other in Poland. Each party opposed the jurisdiction of the foreign court, and each filed documents to set out their alternative positions in the event the court decided to proceed. The court held that neither party attorned to the other jurisdiction.
[25] At the outset, I note that the wife raised some complaints about the manner in which she was served with the divorce proceedings in Iran, but rightly conceded that she had actual notice of the proceedings, and was represented by local counsel throughout. That counsel made representations on her behalf.
[26] In this case, the husband claims that the wife’s participation amounted to attornment, while the wife claims that she participated only to the extent of arguing for the preservation of Ontario’s jurisdiction over her property and support claims.
[27] It is important to analyse the wife’s participation in the context of Iranian divorce laws and proceedings.
[28] The Iranian courts have jurisdiction over all Iranian citizens and all marriages registered in Iran. Further, the expert evidence explains that the Iranian courts do not recognize foreign divorces; Iran will issue a divorce even if a divorce has already been granted in another jurisdiction. The wife states that for these reasons, and because there is no defence available to a woman for the type of divorce the husband requested, the wife’s counsel made no submissions on the divorce.
[29] The Iranian courts may only grant a divorce, however, if they are satisfied that all property and support claims have been dealt with. The wife’s position on this issue is that her counsel advised the court that these claims were being dealt with in Ontario, and that they should make that clear in their decision. That is, she expressly notified the court of the Ontario court’s jurisdiction and took the position before the Iranian court that it was not the appropriate place to deal with these issues. The husband claims that there is no evidence of this, and that the wife waived her property and support claims by not seeking any in the Iranian divorce proceedings.
[30] On the evidence before me, I am satisfied that the wife’s counsel took the position she describes. When the divorce judgment did not mention the wife’s position on the reservation of the property rights to the Ontario courts, her lawyers appealed, twice, only to ask the court to specifically mention that this reservation had been claimed. The fact that the appeal court declined to do so does not mean the claims were not made. I do not view this as “going behind the decision”, as the husband claims. Rather, I base this conclusion on the evidence of the lawyers’ written submissions on appeal.
[31] In this case, the wife advanced no defence on the merits to the claim for divorce. She took no position on the property and support claims, other than that she wished the Iranian court to note that these were being pursued elsewhere. She did not participate in any substantive way in the Iranian divorce proceedings. I reject the husband’s claim that the wife waived property and support claims. In this case, the wife’s ‘waiver’ came in the form of advising the court she was not making a substantive claim because she was making a jurisdictional argument that Ontario was the proper jurisdiction to resolve those issues. It was, in fact, the opposite of a conscious intention to waive her rights.
[32] I therefore find that the wife did not attorn to the Iranian divorce proceedings.
Do the parties have a real and substantial connection to Iran?
[33] Absent attornment, jurisdiction may be found to exist in a foreign jurisdiction where there is a real and substantial connection between the cause of action and the jurisdiction. The husband argues such a connection exists with Iran in this case.
[34] The parties were born in Iran, married in Canada and lived in Canada throughout their married life. They registered their Certificate of Marriage and their Mehr with the Iranian government. The wife deposed that they took this step in 2002 to enable her to travel to Iran with their daughter. They retained their Iranian citizenship, renewed their Iranian passports and took steps to ensure their children had Iranian citizenship.
[35] The husband returned frequently to Iran to deal with his properties and visit his family, staying for what he describes as “long periods of time.” His extended family lives in Iran. The parties have property in Iran – the husband deposes that they invested over one million dollars building homes there, and notes that the wife has her gold coins, worth about $750,000, in Iran, as well as other assets, although no bank account.
[36] The wife has travelled to Iran only 4 times since 1989. The children have never resided in Iran, and neither party resided or worked there during the marriage.
[37] According to Beals at para. 32, the connection between the cause of action and the foreign court must be substantial; a passing or unimportant connection will not suffice. Further, to determine whether the parties have a real and substantial connection to a jurisdiction in family law proceedings, the court must focus on their real circumstances at the time of the divorce, and not place too much weight on their historical connections: Abraham at para. 30.
[38] In determining whether a real and substantial connection exists, the court has regard to various “presumptive connecting factors” which can ground jurisdiction. In Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572, the Supreme Court considered the presumptive connecting factors which would ground jurisdiction in a tort case. In noting that the list of such factors was not closed, the Court stated at para. 92:
When a court considers whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points. These values underlie all presumptive connecting factors, whether listed or new. All presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum such that it would be reasonable to expect that the defendant would be called to answer legal proceedings in that forum. Where such a relationship exists, one would generally expect Canadian courts to recognize and enforce a foreign judgment on the basis of the presumptive connecting factor in question, and foreign courts could be expected to do the same with respect to Canadian judgments. The assumption of jurisdiction would thus appear to be consistent with the principles of comity, order and fairness.
[39] The use of “presumptive connecting factors” in family law cases was considered by the Ontario Court of Appeal in Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, at paras. 46-47. In that case, the Court upheld the lower court’s decision to stay the appellant’s claims under the Divorce Act and the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), on the grounds that the court had no jurisdiction under those Acts because the respondent’s ordinary residence was in China, not Ontario. The Court of Appeal overturned the lower court’s decision that it had jurisdiction over custody and access on the same basis. It held that in the context of family law, the presumptive connecting factors are different than those in the context of a tort case. It followed Van Breda’s approach to ascertaining new presumptive connecting factors, and concluded that in the context of marriage breakdown, the parties’ “real home” or “ordinary residence” is a “significant presumptive connecting factor”: Wang at para. 47; Abraham at para. 31. Because “ordinary residence” or “real home” are the jurisdictional tests in the Divorce Act and the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the Court held that using this as a “presumptive connecting factor” in family law cases “makes eminently good sense”: Wang at para. 47. The Court noted that China “was not a special, occasional or casual residence” for the family. Therefore, Ontario did not have jurisdiction, and China did.
[40] In Abraham, the Court of Appeal considered the effect of the registration of a bare talaq divorce at the Egyptian embassy in Ontario. The motion judge had dismissed the appellant’s summary judgment motion, and had recognized the bare talaq divorce under s. 22(3) of the Divorce Act. In addition to finding that the motion judge erred in finding without expert evidence that the bare talaq divorce had been granted, as opposed to simply registered, by the foreign authority, the Court of Appeal considered whether the parties had a real and substantial connection to Egypt. Neither party had lived in Egypt for many years. Their historical connection was insufficient in the face of the evidence that at the time of the divorce, they worked, resided, had and raised their children, and had their matrimonial home in Ontario. The court reiterated the importance of considering the location of the parties’ “real home” in family law cases.
[41] While in the case before me the parties maintained some connection to Iran – they have assets there and the husband has extended family there – it is clear on the evidence in this case that the parties’ real home is in Ontario. They married here, lived here, worked here, had their matrimonial home here and raised their children here. Neither of them has lived in Iran for many decades. Their children have never lived there. Both parties took many active steps in the family litigation in Ontario; both parties claimed significant relief and steadily pursued their claims. In the context of family law, I do not find that the connection to Iran is substantial. The husband was not entitled to “forum shop” by commencing divorce proceedings in Iran. I have rejected his argument that the wife “started it” by enforcing the Mehr there. The Mehr was a separate contract, payable at any time after marriage, and not intrinsically bound up with the divorce.
[42] I find the parties do not have a real and substantial connection to Iran, sufficient to ground jurisdiction over their divorce in the Iranian courts.
[43] Therefore, I dismiss the husband’s motion asking this court to recognize and enforce the Iranian divorce. Due to this determination, there is no need to consider the second issue of whether that judgment dealt with the parties’ property and support claims on a final basis.
2. Should the court issue the declarations sought by the applicant in respect of the Mehr?
[44] The wife’s notice of motion, originally returnable in January 2023, sought an order severing the divorce and an order “that the Iranian divorce should not be recognised in Ontario.” That motion was adjourned by Black J. to be heard as part of this long motion. The relief sought in the wife’s factum is a declaration “that the Mehr is a valid domestic contract which does not address any of the parties’ rights and obligations arising under the FLA or Divorce Act,” or, in the alternative, “a declaration that the provisions in the Mehr do not contain any releases of the parties’ rights and obligations under the FLA.”
[45] The husband takes the position that the Mehr payment was intended to be in full satisfaction of all property and support claims that may arise in Ontario. The wife disputes this contention on both factual and legal bases. She claims the Mehr cannot constitute a final resolution to her corollary relief claims because it does not meet the contractual requirements for doing so. It contains no release of the parties’ rights under Ontario law, no indication of independent legal advice having been obtained and no consideration of the parties’ relative economic positions on marriage breakdown.
[46] The wife relies in part on statements made in obiter by Pinto J. in an August 2022 decision relating to the disbursement of funds from the sale of the parties’ matrimonial home. Pinto J. referred to the September 2020 decision of the Iranian court granting the wife judgment for 896 gold coins (then worth about $565,000.00) and to arguments made by the husband about the Mehr’s effect on the property rights litigation in Ontario. Pinto J. stated: “Nothing in my reasons prejudices the respondent’s ability to argue that the treatment of the Mehr in Iran is res judicata for the court here in Ontario.” The wife attaches significance to Pinto J.’s failure to suggest that any other issues might be res judicata.
[47] The parties agree that religious contracts, such as Mehrs, that are made in writing, signed by the parties and witnessed in accordance with s. 55(1) of the FLA have been held to be enforceable contracts: Bakhshi v. Hosseinzadeh, 2017 ONCA 838, 139 O.R. (3d) 544, at para. 20. When asked to enforce a Mehr, the court engages in a fact-specific analysis as it would with any other contract: Bakhshi at para. 22. The wife points to cases in which a Mehr is considered alongside Divorce Act corollary relief claims: Bari v. Nassr, 2015 ONSC 4318. If there is no evidence of an objective intention to treat the Mehr differently, it is to be treated under the FLA like any other payment obligation between the parties: Bakhshi at para. 34.
[48] The basis of the court’s authority to order an interim declaration of the kind sought by the wife is not clear. To the degree she seeks a declaration as a final order, I find it is not appropriate for summary judgment. The court is unable to make the necessary findings of fact regarding the intentions of the parties, the issue of independent legal advice, and the circumstances surrounding the signing of the Mehr on the materials before me. Given that I have not recognized the Iranian divorce, the financial issues including property and support remain to be determined in the Ontario proceedings. The effect of the Mehr on those issues should properly be determined within that trial. What is clear is that the Mehr payment will have some effect on the remaining issues between the parties. What that effect is should properly be determined at trial.
Disposition
[49] The husband’s motion to recognize and enforce the Iranian divorce is dismissed.
[50] The wife’s motion for declaratory relief is dismissed.
[51] The parties are encouraged to agree on costs. If they are unable to agree, the applicant may send submissions of no more than five pages, double spaced, with attached bill of costs and any offers to settle within seven days. The respondent may respond within seven days of receiving the applicant’s submissions. There shall be no reply submissions. Submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.
L. Brownstone J. Date: September 5, 2023