Foreign Divorce: Recognition

The case of Essa v. Mekawi highlights various essential themes pertaining to the recognition of a foreign divorce.

In this case, the wife asked the Court in Ontario to declare that the divorce granted in Egypt not be recognized by the Ontario courts. The husband, residing in Egypt at the time, requested the return of his children. The implications of recognizing the divorce would spell the defeat of most or all of the wife’s claims.

In his ruling, Justice Campbell conveys the only scenarios whereby a foreign divorce ought not to be recognized. Justice Campbell refers to section 22 of the Divorce Act and specifically points to subsection 22(3):

(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

Justice Campbell explains that the scenarios whereby a foreign divorce should not be recognized are limited to divorces where there was no notice given, where the foreign order is not in accordance with public policy, where the court in the foreign jurisdiction did not have proper authority, or where fraud is present.

To learn more about foreign divorce as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation.