Recognition of foreign Divorces.
Wilson v. Kovalev, 2016 ONSC 163
The Ontario Superior Court of Justice recently determined whether a divorce obtained outside Canada (in Peru) in 2009, by the parties should be recognized for the purposes of determining the parties’ marital status in Canada.
Wilson and Kovalev were married in Lima, Peru on July 3, 2006. They moved from Peru to Canada On June 7, 2008 with the intention of remaining in Canada on a permanent basis. Both of them became permanent residents of Canada and eventually acquired Canadian citizenship.
The both separated in December 2008, six months after their arrival in Canada and jointly decided to pursue a divorce in Peru following their separation, since they had only been in Canada for six months.
They obtained a declaration of consensual separation before a Notary in Lima and a notarial divorce decree from a Peruvian Notary Public. This divorce was subsequently electronically registered in the Personnel Registry Public Records of Lima, Peru.
Kovalev remarried in Canada on the understanding that the Peruvian divorce met the test for recognition in Canada. In order to obtain a marriage licence, she obtained a legal opinion which was based in part on erroneous facts stating that Wilson was resident in Lima, Peru when the divorce was granted, when in fact he was living in Ontario at that time. The lawyer who drafted the legal opinion erroneously believed that the parties had been separated for at least one year at the time of the divorce.
Wilson and his new partner decided to marry in 2013, and attempted to obtain a marriage licence. He required a legal opinion that the foreign divorce would be recognized in Canada but experienced difficulties obtaining such an opinion and therefore began a Divorce Application.
Kovalev asked the court to dismiss the Divorce Application and to recognize the Peruvian divorce.
The court’s starting point for the legal analysis of this case was the provisions of section 22 of the Divorce Act, which deals with the recognition of foreign divorces. That section provides as follows:
- (1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.
(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision 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 all purposes 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.
Both parties agreed that sections 22(1) and (2) did not apply to them and relied on section 22(3) of the Act which relies on the principles of conflicts of laws and the rules of common law.
Justice Chappel stated that the bases upon which Ontario courts will recognize a divorce obtained in a foreign country, including the following:
- The parties were domiciled in the foreign country that granted the divorce (“the granting country”) when the divorce proceedings were commenced;
- Either party was domiciled in the granting country when the divorce order was made;
- The divorce, wherever granted, would be recognized by the law of the country where the parties were domiciled when the divorce order was made;
- The jurisdictional rule of the granting country corresponds to the Canadian jurisdictional rule in divorce proceedings;
- Where either party had a real and substantial connection with the granting country; and
- Where the foreign divorce would be recognized in another foreign jurisdiction with which either party has a real and substantial connection.
Both parties agreed that the analysis as to whether the Peruvian divorce should be recognized in Canada turns on whether there is a real and substantial connection between either Wilson or Kovalev and the country of Peru. A minimal connection to the foreign country may be sufficient to meet the real and substantial connection test provided that the connection is not superficial in nature and it is not necessary to demonstrate that the most real and substantial connection is with the granting country.
Justice Chappel concluded that the Peruvian divorce should be recognized for the purposes of determining the parties’ marital status in Canada based on the following considerations:
- 1. The legal opinion from a lawyer practising law in Peru, respecting the validity of the Peruvian divorce under Peruvian law, the jurisdiction of the Notary that granted the Peruvian divorce, the authority of the counsel who represented both parties in the divorce proceeding on their behalf and that both parties had satisfied the grounds for divorce under Peruvian law.
- The evidence adduced at trial supporting the conclusions set out in the legal opinion of the Peruvian lawyer.
- The lack of evidence of any fraud committed that may have affected the jurisdiction of the Notary who granted the Peruvian divorce.
- The parties both consented to pursuing the divorce in Peru and had notice of the proceedings. The lack of evidence that either party was denied natural justice in the course of that process.
- The existence of a real and substantial connection between both parties and the country of Peru. This connection was established based on the following
- a) Both parties were born and raised in Peru.
- b) The parties were married in Peru.
- c) The parties continued to live in Peru at the time of their marriage on July 3, 2006 and right up until they arrived in Canada in June 2008.
- d) The parties only lived in Canada for approximately six months before they separated.
- e) Both parties continued to be Peruvian citizens at the time of the divorce. Kolavev is still a Peruvian citizen. Wilson did not become a Canadian citizen until November 26, 2013, four years after the divorce was granted.
- f) Both parties have many extended family members who still live in Peru.
- g) Both parties have retained valid Peruvian national identification documents.
- h) Wilson testified that he probably has a state pension in Peru.
- i) Kolavev has been to Peru to visit family members at least twice since the divorce was granted.
- j) Kolavev is entitled to a state pension in Peru, and has maintained bank accounts in Peru since she left that country.