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Canadian courts weighing the recognition of a foreign divorce must ensure that the interests of defendants have been protected and that they were granted a fair process in the foreign court. There will be concerns if a party can unilaterally obtain a religious divorce, particularly if that divorce is later used to impede a party from obtaining relief in Canadian courts. While jurisdiction issues can be complex and require expert evidence, they can also be “high stakes”, particularly where a child’s best interests are involved. In some cases, an interim costs award may be necessary to ensure that both parties have a fair hearing.
Husband Unilaterally Obtains Foreign Religious Divorce
In Al- Saidi v. Al-Saidi, the applicant wife brought a motion for interim child support and spousal support, as well as interim costs in accordance with Rule 24(25) of the Family Law Rules. However, the respondent contested the motion, arguing that the court in Yemen had jurisdiction over the matter and that the parties’ child should be returned to Yemen. He suggested this motion was not “urgent” and should not be heard until proper jurisdiction had been determined. The child was born in Ontario and was living there with her mother. Also, the child had always lived in Ontario, except for 8 months spent in Yemen. The applicant and the child had travelled to Egypt for a vacation, then visited family in Yemen. The respondent wanted them to remain in Yemen and tried to prevent the applicant from returning to Canada.
Nevertheless, the applicant returned to Canada after the parties separated. The respondent then promptly obtained a unilateral religious divorce and remarried. The parties disagreed on the proper forum to decide issues related to their property and parenting. At the time of the motion, the respondent was employed and resided in the United States.
The judge decided the motion could proceed to enable the parties to address the interim relief sought. When it came to addressing the respondent’s income, the respondent failed to meet his obligation to provide disclosure of his income.
However, the respondent did request that the court find that he was already paying child support. He had unilaterally obtained a court order from a judge in Yemen requiring him to pay into the court in Yemen each month an amount in Yemeni currency, which he suggested amounted to approximately $450 CAD. But the respondent admitted that, for the applicant to receive the funds, she would have to make arrangements to convert the currency and obtain the funds. The judge did not agree that the respondent could be considered to have paid child support by depositing funds into a foreign court, since the child was living in Canada and the funds set aside in Yemen were not paid to the parent caring for the child.
Religious Divorce Did Not Bar Wife’s Interim Relief Claim
The judge also had to consider the impact of the religious divorce on the applicant’s request for interim support. The respondent claimed that at the time of their separation, the applicant informed him that she wanted a divorce. A short time later, he unilaterally obtained religious divorce or “talaq”. Since the religious divorce was granted in Yemen, the respondent now claims that the applicant is not entitled to spousal support in Canada or to any other relief she would have been entitled to at the time of separation if the divorce had not been granted.
However, Justice McSweeney was not convinced that the religious divorce should be recognized as a bar to the applicant’s claim. To begin, the judge noted that the parties did not meet the Divorce Act‘s threshold criteria for divorce. Although the judge accepted that the parties had a mutual desire not to reconcile, they had not been separated for over one year. Additionally, they had not made reasonable provisions for their child’s support, as required by the Act.
The judge also considered section 22(1) of the Divorce Act. That section concerns the recognition of foreign divorces. It provides that a foreign divorce “shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce”. But neither spouse was habitually resident in Yemen for the required period at the time the talaq was granted.
Finally, there were public policy concerns surrounding the manner in which the foreign divorce was granted. Justice McSweeney emphasized that a religious divorce that is obtained unilaterally by the husband for his own benefit, that is used to limit “relief claimed by a wife, who herself had no standing to object to it, has been recognized as contrary to public policy and principles of natural justice”.
On this point, the judge considered the decision in Al Sabki v. Al Jajeh. In that case, the judge concluded that a foreign divorce could not be recognized, as the wife was never served with the divorce decree, and the process followed by the Syrian court resulted in a denial of natural justice to the wife. There, the judge noted that in Beals v. Saldanha, the Supreme Court of Canada indicated that Canadian courts have a heightened duty to ensure defendants are granted a fair process when weighing the enforcement of a foreign judgment. This includes ensuring that minimum standards of fairness and basic procedural safeguards are guaranteed in the originating jurisdiction. The Court also stated that “if fair process was not provided to the defendant, recognition and enforcement of the judgment may be denied”.
Interim Costs Award Helped to “Level the Playing Field”
The applicant sought interim costs of $150,000, explaining that the respondent’s litigation in Yemen and Canada had resulted in her spending $100,000 in savings. Rule 24(25) of the Family Law Rules provides that courts may make an order for a party to pay an amount to another party to cover part or all of the expense of carrying a case, including legal fees. The judge found that the evidence clearly supported a finding that there was “an uneven playing field” and that the respondent had engaged in aggressive tactics.
Further, the respondent did not live in Canada and was opposing the applicant in both the Canadian and Yemen courts simultaneously. He also had a higher income and had not made the required financial disclosure. It was also true that the applicant had already spent $100,000 in savings on responding to the respondent’s litigation and would continue to deplete her resources. Also, during this motion, the respondent had argued that the children’s entitlement to support was not “urgent” since the mother had been using her savings to provide for their child’s needs.
Considering the interim costs to the applicant, the judge determined that fairness and necessity justified granting the order. Without the costs, the applicant would not have the resources to obtain evidence and oppose the respondent’s efforts to take the child to Yemen. As the judge recognized, “the stakes where a child’s best interests are in issue are the highest; in this case, the jurisdictional issues and expert evidence required add additional complexity”. Yet, while the applicant requested an amount of $150,000, it was also a matter of fairness to recognize that child and spousal support orders with arrears were being made simultaneously, making an interim costs award of $100,000 justified.
Despite the interim cost award, Justice McSweeney did not believe that, alone, it would level the playing field unless the respondent complied with the court’s orders. The judge felt that the respondent had been playing games, such as paying child support funds to Yemen, thereby putting the money out of reach. It was also relevant that the respondent resided outside Ontario and that his assets were outside the country. The judge emphasized that “a party abroad with resources may not litigate with impunity in a jurisdiction where the record indicates that the party may be unwilling or unable to satisfy either an adverse judgment or cost award”. Therefore, the judge decided that the respondent’s jurisdiction motion would not proceed until he paid the interim costs and the support arrears.
Facing a Cross-Border Family Law Dispute or Foreign Divorce Issue? Contact Johnson Miller Family Lawyers in Windsor-Essex
Cross-border family law disputes—especially those involving foreign divorces, international jurisdiction, or religious divorce processes—can create complex legal challenges with serious financial and parenting consequences. As demonstrated in Al-Saidi v. Al-Saidi, Canadian courts carefully scrutinize foreign divorce claims, particularly where fairness, procedural safeguards, and the best interests of a child are at stake.
If you are dealing with a situation involving a foreign divorce, competing jurisdiction claims, or difficulties enforcing support obligations across borders, it is critical to obtain experienced legal advice as early as possible. The family and divorce lawyers at Johnson Miller Family Lawyers advise clients on foreign judgments, interim support, financial disclosure, and litigation strategy in complex family law disputes. Contact us online or call 519-973-1500 to discuss your situation and learn how we can help you navigate your international family matter with confidence.
