Court File and Parties

COURT FILE NO.: FS-22-45754 DATE: 2024-06-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashfaq Ahmed, Applicant AND: Shamaila Ahmed, Respondent

BEFORE: J.E. Mills J.

COUNSEL: A. Dhaliwal, for the Applicant T. Barlas, for the Respondent

HEARD: June 3, 2024

Endorsement

[1] The Respondent obtained an ex parte divorce in Pakistan on July 30, 2018. The Applicant brings a motion for a declaration the foreign divorce is invalid and should not be recognized by this Court on the grounds it was obtained by fraud and in breach of the Applicant’s rights of natural justice. For a foreign divorce to be recognized in Canada, it must comply with s.22 of the Divorce Act, R.S.C. 1985, c.3.

[2] The Applicant’s motion is granted. The divorce granted in Pakistan shall not be recognized in Ontario. The Respondent’s cross-motion to amend her pleading to seek spousal support is therefore granted, on consent.

[3] The parties have no real or substantial connection to Pakistan for divorce purposes. They were both born, raised, educated, and married in Pakistan. That does not create a real and substantial connection for divorce. Habitual residence gives rise to a real and substantial connection. The parties both resided in Canada for more than a decade by the time they separated, whether the date of separation is January 30, 2017 in Ontario, or on a date in 2015 when the parties resided in Saskatchewan. They have no property and no business interests in Pakistan. The Applicant maintains one bank account, but otherwise has no investments in Pakistan. There is no evidence before me the Respondent has any financial interests in Pakistan.

[4] The parties moved together to Milton, ON in January 2016, signed a lease together, and lived together even if separate and apart. They purchased car insurance together. On January 30, 2017, an incident occurred which led to police involvement and the Applicant moved two weeks later to his own accommodation where he lived for six years.

[5] The Respondent was well aware of the Applicant’s address in Milton, ON when she commenced her proceeding in Pakistan on March 31, 2018. Rather than properly serve the application materials on the Applicant, the Respondent provided two addresses in Pakistan at which the Applicant had never lived. Although his parents formerly resided at one address, they had moved in 2006. Having received no notice of the proceeding, the Applicant did not respond. The Pakistan court ordered substituted service with the publication of a notice in a local newspaper. Not surprisingly, that too did not come to the attention of the Applicant who was residing in Ontario. When the substituted service did not result in a response, the Pakistan court proceeded to issue a divorce judgment on an ex parte basis.

[6] I reject the Respondent’s evidence that she served the Applicant with the Pakistan divorce application in Ontario. Her evidence was not at all credible in this regard. As she was confronted with documents contradicting her evidence, she offered new and revised explanations for her actions. The Respondent submits she delivered a handwritten letter to the Applicant to advise of the divorce proceedings in accordance with Sharia law. There was no expert evidence led as to Sharia law and in any event, the delivery of a letter does not amount to proper service of the application for divorce. All this does is confirm the Respondent knew how to properly serve the Applicant at the time she was seeking a divorce application in Pakistan, and yet she failed to do so.

[7] The Respondent represented to the Pakistan court that both parties lived in Pakistan and that the children of the marriage lived in Pakistan. In fact, the children were born in Canada, attended school in Canada, and the Respondent had not been to Pakistan in approximately eight years. She did not even attend to file the divorce application, relying instead on her brother to whom she had provided her power of attorney.

[8] What does not appear to have been communicated to the Pakistan court is that the parties had engaged legal counsel and were negotiating the terms of a separation agreement in Ontario at the time of the divorce application. There was also an open file in Saskatchewan in which the Applicant had sought a divorce. This too does not appear to have been conveyed to the Pakistan court.

[9] None of the information provided by the Respondent in the Pakistan divorce application was true. The divorce was granted without notice to the Applicant and based on material misrepresentations by the Respondent. This is a breach of natural justice, and the Pakistan legal process lacked all procedural fairness to the Applicant. There is sufficient evidence to conclude the divorce was granted on the basis of fraud. To accept this divorce as valid and enforceable would violate Canadian public policy.

[10] The Applicant has met his burden to establish the divorce was not properly obtained. He has satisfied several of the grounds for the court to decline to recognize a foreign divorce, as outlined in Wilson v. Kovalev, 2016 ONSC 163.

[11] I am not satisfied the Applicant’s appeal of the Pakistan divorce, or the filing of an anti-corruption case constitutes an attornment to the courts of Pakistan. There was no evidence submitted by the Respondent as to the law of attornment in Pakistan. These steps taken by the Applicant do provide a valid explanation for his delay in bringing this motion.

[12] The Respondent alleges she will suffer prejudice if the Pakistan divorce is not recognized as she has re-married and had a child with her new spouse. The Court will not consider a party’s claim of prejudice which arises from the effects of the party’s own misconduct. The Respondent will need to live with the consequences of her deceptive actions.

[13] Having been wholly successful, the Applicant is entitled to his costs of this motion. The parties may make written submissions on costs, limited to two pages plus a Costs Outline and any offers to settle. The Applicant shall have ten days and the Respondent shall have ten days thereafter to respond. There shall be no right of reply.

J.E. Mills J. Date: June 3, 2024