HomeFamily LawThe Validity of Foreign Divorces in Canada

The Validity of Foreign Divorces in Canada

Leigh Sherry

If you are in Canada but divorced in another country, Canada will most likely recognize the foreign divorce that was granted (with some limited exceptions).  Section 22 of the Divorce Act declares that a divorce granted pursuant to the law or a country by a tribunal which has the authority to do so, shall be recognized for all purposes of determining the martial status in Canada, as long as either spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of proceedings for the divorce.

This means that if your spouse has recently left to another country and files for divorce there, it may not be considered a valid divorce recognized in Canada if they have not ordinarily resided in that country for one year prior to commencing the divorce action.  In a recent case, Zeineldin v Elshikh, 2020 ONSC 1160 at para 22, an Ontario Court ruled that the parties divorce granted in Egypt was not a recognized divorce in Canada as the parties had not resided in Egypt for one year prior to the divorce action.

However, there is a presumption that a foreign divorce is valid, so the person claiming it is invalid has the burden to demonstrate why this would be the case.  In some rare cases, Canada will declare that the foreign divorce is not valid, even if it was properly obtained in another jurisdiction.  For instance, on the grounds of fraud, natural justice or public policy concerns.

Once a foreign divorce has been recognized as valid in Canada, Canada has no authority under the Divorce Act to deal with any corollary relief proceedings such as spousal support.  You may be able to make a claim for child support or parenting under the provincial Family Law Act still, but not for spousal support in the face of a valid foreign divorce.  In Cheng v Liu, 2017 ONCA 104, at para 30, the Court stated, “Simply put, there is no jurisdiction for an Ontario court to grant corollary relief under the Divorce Act after a foreign court has validly issued a divorce.”  It did however allow a claim for child support to proceed in Canada as it found that the use of the provincial legislation was “entirely consistent with the statuary objective of ensuring that parents provide support for their dependent children” (para 45).

If you are seeking family law remedies in Canada after receiving a foreign divorce, or if you are disputing the validity of a foreign divorce, you may still have remedies in a Canadian court but it is recommended to seek legal advice first to determine your options and strength of your case.

 

2021-03-18T19:39:57+00:00March 23, 2021|Family Law|
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