We’ve recently blogged about international divorces and how they are taken into account in the Canadian legal system. A recent decision from the Ontario Superior Court of Justice provides us to revisit this topic, only this time with an interesting twist. The question at the centre of the trial was whether a divorce in Ukraine could be upheld even though the couple, living in Canada, did not actually separate until a few months after the divorce was finalized. Sound confusing? We agree. Let’s get into the details.
The father was born in Ukraine, while the mother was born in Russia. They were married in what is now Ukraine on July 13, 1983. They had one child together, though she was an adult at the time of the trial.
The family started the process of moving to Canada in 1996, though it took two years for them to get approval to immigrate. Following that approval, they had six months to make the move.
The husband testified that the marriage ran into trouble shortly after they applied to immigrate. He said that their last year in Ukraine was “separate and unhappy.” The mother confessed to having a relationship with another person before the move, which the father understood as the end of the marriage.
The parties began to talk about divorce in May or June of 1998, prior to moving to Canada. The father wanted to get divorced in Ukraine, where they had a better understanding of the process. The wife, who was worried that divorcing in Ukraine would negatively impact their immigration opportunity, said she did not agree to go through with it.
The family landed in Canada on June 27, 1998, but the father returned for work on July 12, 1998. At this time he transferred half of the money in his bank accounts to the wife, something he said he did as part of their separation.
In August of that year, the father began pursuing divorce in Ukraine. He did not provide the mother with any of the forms he filled out, having been told by his lawyer that the court would do so. However, he had provided their Ukraine apartment as her last known address.
A divorce hearing took place on September 28, 1998. The mother was not present. The divorce was granted, and the husband let her know after returning to Canada in January 1999. It was at this time he removed his personal belongings from their apartment.
Things got complicated when the mother denied they had separated at the time the divorce was ordered. She also said she was not given proof of the divorce until 2001.
The court noted that recognition of foreign divorces is made under the Divorce Act, which states that there are three bases upon which a foreign divorce will be recognized. They include either of the spouses being a resident of the foreign country for one year before the divorce. The court found that the mother and father were both citizens of Ukraine leading up to the divorce and that Ukrainian law allowed for the husband to apply for divorce. In Ukraine, the law does not require a couple to be separated for a year before divorcing, meaning it was a non-factor that the husband did not move out of their apartment until after returning from Ukraine in 1999.
As a result, the divorce was recognized.
We understand that the end of a marriage is a difficult and emotional experience. At NULAW, we strive to make the process easier by providing outstanding legal guidance and ensuring your interests and rights are protected so that you can focus on moving on with your life. Contact us online or at 416-481-5604 to book a consultation.