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A foreign divorce will be presumptively recognized in Canada if there is a real and substantial connection between parties and the foreign jurisdiction. However, Canadian courts have recognized several exceptions which permit judges to decline to recognize a foreign divorce.
Recently, the Ontario Court of Appeal clarified the scope of the defence of unfair forum shopping, where a party strategically commences proceedings in a jurisdiction to avoid domestic laws. Under Canadian law, this can significantly impact a party’s access to entitlements, such as spousal support.
Husband Seeks Divorce in Russia to Avoid Paying Spousal Support
In Vyazemskaya v. Safin, the parties resided in Canada and attempted to negotiate a separation agreement. When they were unsuccessful, the appellant’s husband applied for a divorce in Russia, while the respondent objected to the Russian court assuming jurisdiction, arguing the divorce should be decided in Toronto. However, a Russian divorce order was made. In the Ontario proceedings, the respondent provided evidence that spousal support would only be ordered under Russian law in limited circumstances. Consequently, if the Russian divorce order was recognized in Ontario, the respondent could not seek spousal support.
The trial judge determined that the appellant knew the respondent was prepared to commence proceedings in Ontario if their efforts at negotiating a separation agreement were unsuccessful. He also knew that under Ontario family law, he would have to pay spousal support. The trial judge also accepted that the appellant pre-emptively obtained a Russian divorce, so the respondent could not obtain a divorce and spousal support in Ontario. The trial judge decided against recognizing the Russian divorce based on the public policy exception, having determined that the appellant unfairly “forum shopped” when he pursued a divorce in Russia.
On appeal, the appellant argued that the trial judge improperly relied on the public policy exception when declining to recognize the Russian divorce. In Beals v. Saldanha, the Supreme Court of Canada examined this exception, and although Beals was a commercial case, the Ontario Court of Appeal felt that adapting those principles could be appropriate within family law cases. In Beals, the court stated that a public policy defence against recognizing a foreign judgement “turns on whether the foreign law is contrary to our view of basic morality.” However, the court emphasized that this exception should have a “narrow application.”
Court Considers Defences to the Recognition of a Foreign Divorce
The court also indicated the public policy defence must be reserved for cases where the foreign jurisdiction’s law is repugnant rather than focusing on “repugnant facts or outcomes” or the manner in which the law was applied. The appellant’s argument centred on this distinction in Beals¸ and the necessity of separating repugnant laws from their application in specific cases. For the appellant, even if he sought to obtain a divorce in Russia to avoid spousal support, and even if that decision led to what was considered a repugnant outcome, the appellant claimed that the principles from Beals require courts to overlook those circumstances. Even though the appellant denied he pursued a Russian divorce to avoid his spousal support obligations, he claimed that, at most, it amounted to a repugnant fact and not a repugnant law. The appellant argued the focus should be on whether the Russian laws governing divorce and spousal support are repugnant and that his conduct and intentions were irrelevant. In addition, he claimed that the trial judge should have conducted an analysis of Russian law, including assessing Russia’s support system. The appellant argued this would require expert evidence, but in any case, it would reveal that any differences between Russian and Canadian laws were not significant enough to invoke a public policy defence and set aside the Russian court order.
The Court of Appeal disagreed and found that the appellant overlooked the existence of other “nominate” defences to recognize foreign divorces set out in Beals. These included both fraud and natural justice. In that case, the court explained that these other defences were analytically distinct from the public policy defence. One reason was that “the defence of public policy has long been associated with condemnation of the foreign jurisdiction’s law.” The court concluded it should not be applied when “there is nothing objectionable about the foreign law.” Importantly, Beals also identified a fourth potential defence, with the court referencing unfair forum-shopping tactics. In Vyazemskaya, the justices found that the inquiry is not limited “to foreign laws that “violate our principles of morality” and that courts must also consider “decisions taken to avoid the application of domestic laws.” For the court, forum-shopping will not necessarily violate principles of morality, but “unfair forum-shopping tactics” would.
Court Identifies Unfair Forum Shopping as a Distinct Defence
Several decisions from across Canada also affirm that unfair forum-shopping tactics are a relevant consideration in the context of family law. In Abraham v. Gallo, the Ontario Court of Appeal suggested that the trial judge should have considered whether the respondent had engaged in impermissible forum shopping when he commenced proceedings in Egypt despite the parties’ residence in Ontario. The court determined the parties lacked a real and substantial connection with Egypt and were clearly connected to Ontario. The court viewed the respondent as having undertaken unjustified forum shopping.
Likewise, in the British Columbia case of R.N.S. v. K.S., the appellant claimed that even if there is a real and substantial connection with the foreign jurisdiction, a foreign divorce should not be recognized if a party engaged in forum shopping “with a view toward finding a more favourable matrimonial property regime.” Although the trial judge did not consider forum shopping, there was no evidence indicating the party had commenced proceedings in Australia for improper reasons.
Cases have also concluded that foreign divorces should not be recognized specifically because the foreign jurisdiction either did not provide any spousal support or provided inadequate spousal support. For example, in Zhang v. Lin, the court determined that a Texas court decision dealing with child and spousal support was contrary to Canadian public policy and, on that basi,s refused to recognize the Texas divorce. Although this was not a case dealing with unfair forum shopping, it served as an example where foreign laws that provided inadequate spousal support were a basis to decline to recognize the foreign judgement. In Vyazemskaya, the court remarked that laws which leave a vulnerable party without “compensation for the financial consequences of marriage breakdown might be contrary to Canadian public policy.”
Looking at the trial judge’s reasons, she determined that the appellant sought a divorce in Russia pre-emptively so that the respondent could not obtain a divorce and spousal support in Ontario. This amounted to an improper motive to seek a Russian divorce, leading the trial judge to find there had been unfair forum shopping tactics. This was a legitimate basis for refusing to recognize the Russian divorce. The Court of Appeal concluded that there was no palpable and overriding error in the trial judge’s findings or with her conclusion that the divorce should not be recognized, so the court declined to interfere.
A Foreign Divorce May Not be Recognized Due to Unfair Forum Shopping
The decision in Vyazemskaya emphasizes the careful balancing between international law, recognition of foreign judgements, and their impact on Canadian family law entitlements. Importantly, courts have signalled that unfair forum-shopping tactics will not be tolerated, and the defence can consider the intention of the party pursuing a foreign divorce.
Windsor Family Lawyers Helping Clients With Multi-Jursdictional Divore Matters
Navigating the complexities of multi-jurisdictional divorce can be overwhelming, especially when foreign divorce orders and potential unfair forum shopping tactics are involved. If you’re facing a situation where a foreign divorce may impact your rights to spousal support or other entitlements in Canada, it’s crucial to seek experienced legal counsel. Our Windsor family lawyers at Johnson Miller Family Lawyers are well-versed in the nuances of international divorce law and can provide strategic guidance to protect your interests. To discuss your matter further or arrange a consultation, please complete our online questionnaire or contact the firm at 519.973.1500.
