Have Passport, Don’t Want To Be Married: Court Asked To Rule On Validity Of Foreign Divorce
The world might seem like a smaller place than it used to thanks to the introduction of new technologies. But as far as the law is concerned, the world is still a very large, complicated, and nuanced place. Take for example a recent decision from the Ontario Superior Court of Justice which concerned two people who are permanent residents in Canada, but got married and divorced in Russia.
The family background
The mother and father began living together in September 2005. They were married in Russia on September 17, 2008. They had two children, who were aged 5 and 8 at the time of the hearing. The father moved to Canada in 2012 with the mother and children following in 2013.
The father travelled to Russia on December 30, 2015 to attend his father’s funeral. He returned to Canada on January 24, 2016, and went back to Russia again on February 26. He filed for divorce while there and returned to Canada on August 27, 2016. The divorce was finalized in Russia on June 8, 2016. The appeal period was 30 days. It was not until October 2016 the fall that the mother brought motions to stop the father from returning to Russia with the children and to nullify the divorce. In the meantime, the father remarried in July 2017.
The positions of the parties
The father argued that the Russian divorce was properly obtained and should be validated. He claimed to have a “substantial connection” to Russia. He claimed the mother had an appropriate period of notice, with documentation having been mailed to the mother’s registered address in Russia. He also argued the Russian divorce extinguishes the mother’s entitlement to spousal support. Finally, he sought an adjustment to child support on the basis that he has had the children half of the time as of July 2018.
The wife’s position was that the Russian divorce was improperly obtained and should not be recognized. The notice mailed to her at her parents’ house (her registered address) was not received by them because it was registered mail and it was not addressed to them. She claimed that while she was aware the father wanted a divorce, she did not receive the actual order until August 2017. She is of the position that the father obtained a divorce in Russia in order to extinguish her rights to spousal support.
The court looks at the Russian divorce
The court examined the file of the Russian divorce. While it was eventually granted, the record did indicate that the judicial officer was concerned with there being no proof of service and adjourned the matter twice.
Both the mother and the father provided written correspondence from their Russian lawyers, but the material did not address whether the mother would be entitled to spousal support in Russia. The father’s lawyer’s documentation also feel short of meeting an acceptable standard because the lawyer offered his opinion on the law, but did not include the law itself. This, in addition to the fact that the mother did not receive notice of the divorce until after the appeal period had expired left the court to determine that the divorce must be set aside. The court wrote,
“Without deciding whether or not (the father) was entitled to petition for divorce in Russia in the first place, I find that although (the mother) knew that (the father) was obtaining a divorce in Russia, she was not provided with any of the documents. She was not given an opportunity to seek legal advice, which legal advice would have told her that she could not obtain spousal support in Canada, once a divorce in Russia had been granted.”
Going through divorce is a complicated experience, especially when foreign jurisdictions are involved. Our founding lawyer, Jason P. Howie, is certified by the Law Society of Upper Canada as a Specialist in Family Law. He and the rest of our exceptional team apply this knowledge as well as a personalized approach to guide our clients through the divorce process. To speak with us, please reach out by phone at 519.973.1500 or reach us online to arrange a consultation.