Can A Canadian Court Force Someone To Divorce In Another Country?

Written on behalf of Arbesman Hamilton LLP

Many of our blogs focused on divorce begin with a couple having already agreed to divorce. However, as demonstrated by a case recently heard by the Supreme Court of British Columbia, disputes can sometimes take place over whether or not one person in a marriage has to take positive steps to go through with a divorce – and whether the court has the legal authority to make such an order.

Married in Iran, divorced in Canada

The couple was married in Iran in 1994 under a traditional Iranian marriage contract. They had two children (in 2003 and 2006) before separating in Canada on September 23, 2012. On December 12, 2012, the wife brought an action to the courts seeking arrangements for the children as well as orders for child and spousal support. The husband, while not seeking an order for divorce, submitted his annual income as $0. On January 18, 2013, the wife added a divorce and compensation for property located in Iran to her list of claims.

The husband refuses to acknowledge the divorce

The couple litigated a number of issues through the courts, with the courts officially granting a divorce on September 24, 2015. The wife then brought a petition before Iranian courts, seeking a ratification of divorce. However, her petition was dismissed. Under Iranian law, only the husband has the right to divorce. The Iranian court’s decision stated that foreign courts, including Canada’s, needed to observe Iran’s divorce laws. The husband, meanwhile, showed no indication that he was ready to accept the divorce, texting the wife messages such as “dream on” and “I will not let (the divorce) happen even if you mobilize the whole world.”

The wife then turned to the Canadian Courts, asking for a court order forcing the husband to complete the forms necessary to have the divorce registered by the Iranian government. In addition, she asked the courts to ratify the Canadian divorce.

One of the reasons the wife was so concerned with having the Iranian courts recognize the divorce was so that she would be free to remarry. Additionally, a divorce was needed in order to allow her to travel freely to and from Iran. Iran requires the husband’s consent for her to travel in and out of the country. The wife’s elderly mother and disabled sister still lived in Iran, making travel a priority for her.

Turning to precedent

This was not the first time Canadian divorces had conflicted with religious divorces or divorces in other countries. In 2007 the Supreme Court of Canada ruled on a similar issue where a husband refused to provide his wife with a Jewish divorce. The court said, “For an observant Jewish woman in Canada, this presents a dichotomous scenario: under Canadian law, she is free to divorce her husband regardless of his consent; under Jewish law, however, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all.”

A 2014 case before the Ontario Superior Court of Justice (Etemad v. Hasanzadeh) provides some guidance on ordering spouse to comply with what is needed to have the Iranian government recognize a Canadian divorce. In Etemad, the husband and wife were also married in Iran but separated in Canada. In its decision the court wrote, “I concluded that this issue was properly before me and that there was no prejudice to the husband. Accordingly, I granted an amendment to the wife’s application to claim that the husband’s answer be struck for failing to remove all barriers that are within his control and that would prevent the other spouse’s remarriage within her faith pursuant to section 2(6) of the Family Law Act.”

The court orders the husband to comply

The husband had failed to respond to proceedings in both Iran and in Canada. The court pointed this out, underscoring the dilemma his lack of participation had caused the wife, notably by restricting her ability to travel to Iran. The court acknowledged that the husband did have religious rights, but stated, “The cause of this situation is the claimant’s refusal to consent to an Islamic Iranian divorce, which normally would be his religious right. However, as the claimant’s conduct has resulted in direct, substantial harm to the respondent, and the claimant has failed to respond to this application, appear at this hearing, or put his religious rights under the Canadian Charter of Rights and Freedoms [Charter] in issue, I find that the right is not protected in the circumstances.

In addition to confirming the divorce, the courts also ordered the husband to execute the documents required to have the divorce recognized by Iranian courts.

The ending of a marriage is a difficult and emotional time. At Arbesman Hamilton LLP we approach matters of divorce with compassion and experience. We strive to make a difficult time as easy as possible by providing outstanding legal advice and ensuring your rights and interests are protected throughout the process. We understand that our clients want to resolve matters of divorce in a quick and cost-effective manner. Call us at 416-481-5604 or reach us online to schedule your consultation today.