In Wilson v Kovalev, 2016 ONSC 163, the Ontario Superior Court considered the issue of whether the foreign divorce the parties obtained in Peru should be recognized for the purpose of determining their marital status in Canada.

Mr. Wilson and Ms. Kovalev were both born and raised in Peru and were married there in 2006.  In 2008, they moved to Canada with the intention of remaining in Canada permanently. The parties both eventually became permanent residents of Canada and acquired Canadian citizenship.

Six months after arriving in Canada, the parties separated, but both continued to live in Canada. They decided to obtain their divorce in Peru given that they had only been in Canada for six months. In 2009, they obtained a divorce from a Peruvian Notary Public.

Ms. Kovalev remarried in Canada in 2011 on the understanding that the Peruvian divorce met the test for recognition in Canada, which was based on a legal opinion she had obtained from a Canadian lawyer. The legal opinion, however, contained errors. The Canadian lawyer based his opinion on the fact that Mr. Wilson was a resident in Peru when the divorce was granted, but in fact he was living in Ontario at the time. The lawyer also believed that the parties had been separated for at least one year, which was also untrue.

When Mr. Wilson attempted to remarry in 2013, he had difficulty obtaining a legal opinion to recognized the Peruvian divorce and so he brought an application for divorce in Ontario before the court.

The court determined that the relevant consideration to determine whether a foreign divorce should be recognized in Canada is whether there was a “real and substantial connection” to the granting country. Based on the facts and the evidence provided at trial, the judge found a real and substantial connection between the parties and Peru.

The court recognized the Peruvian divorce and dismissed the divorce application.

If you have questions about divorce or separation, please contact Jason P. Howie, online or at 519.973.1500.

To read the full decision, click here.