Destination weddings are not uncommon, especially in the winter months when couples may want to bring their friends and families on a warm-weather getaway. On the other side of the coin, couples who are married or live in Canada may sometimes find themselves separating or divorcing in another country. If a couple divorces in one country but still reside in Canada, the Divorce Act doesn’t apply. But what about when issues around spousal support come up? This was a question faced by the Ontario Superior Court of Justice in a recent decision.

The family’s history

The parties were married in Syria in 1982. The mother trained as a dentist but did not work following the marriage. The father worked as a civil engineer. They had four children together and lived in Dubai for a time before the mother and children moved to Canada in 2005. The father stayed in Dubai, but provided monthly support to the wife and children, with the amount ranging from $2,000 per month to $5,000.

Two of their children eventually returned to Dubai after university, and the mother routinely visited the father there. The father visited Canada only twice, with one visit occurring in 2010 when he and the mother purchased a home.

In April 2017 the mother received a letter stating that a divorce was put in place according to Islamic law, and that the divorce was “forever.” The wife was not a participant in the divorce and was not aware it was being pursued by her husband. She has not received any spousal support since the divorce, and came to the courts seeking a lump sum of spousal support, which she suggested could come from the sale of the matrimonial home.

Does the court have jurisdiction to make an order on spousal support?

The court stated that the Divorce Act does not apply to couples who divorce in a country outside of Canada, and that the Act recognizes foreign divorce decrees. However, in 2019, the Ontario Court of Appeal refused to recognize a foreign divorce because the wife was not given proper notice (this time in Russia). In that case, “the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy.”

In another case out of Canada’s federal court, a similar divorce to the case at hand, known as a “talaq divorce” lacked any of the “necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity,” and rather served as more of a notice than anything else.

The court found that with the evidence before it, there was no evidence that a proper divorce proceeding had occurred.

On the issue of spousal support

Having found that the divorce was not valid, the court then turned its attention to the matter of spousal support. The court reviewed the parties’ history, noting that the mother is now 62-years-old and dedicated 35 years of her life to raising their children. She became financially disadvantaged after getting married, sacrificing her career. The court found her to be unempolyed, and unemployable.

The court looked at the husband’s history of paying $2,000-5,000 per month to the mother and found that he has the means to continue to do so. While the mother asked for the proceeds of the house to stand in place of support, there won’t be enough available to pay $5,000 per month, though it would see her through the next ten years. The court held that these funds be released to the mother.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. Our family law team is dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.

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