“An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce: Okmyansky v. Okmyansky, 2007 ONCA 427, at para. 25.
Section 22 of the Divorce Act provides for the recognition of foreign divorce decrees. In certain circumstances, courts in Canada have refused to recognize foreign divorces, including talaq divorces under Sharia Law in particular.
In Novikova v. Lyzo, 2019 ONCA 821, the Court of Appeal for Ontario upheld the motion judge’s refusal to recognize a foreign divorce because the wife was not given proper notice of the proceeding in the Russian Federation. In Kadri v. Kadri, 2015 ONSC 321, the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy: at para. 83. With respect to talaq divorces in particular, the court in Kadri observed that numerous immigration decisions of the federal court have expressed concerns about talaq divorces where the procedure consist only of a unilateral announcement of divorce by one party, usually the male: at para. 85.
A “bare” talaq divorce was described in Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 FCR 531, at para. 20, as a private recitation of a verbal formula in front of witnesses. The verbal recitation may be pronounced in a mosque. It may be reinforced by written documents containing such information, whether accurate or not. The pronouncement of the divorce before witnesses is what brings about the divorce.
The court further observed in Amin that the ritual performance of the bare talaq lacks any necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity, even if merely to register or recognize what has been done. While the essential procedure differs, the court concluded in Amin that to recognize a bare talaq divorce would be manifestly contrary to Canadian public policy.
I do not know, and there is no evidence before me as to, the procedure invoked that led to the talaq in this case. I am satisfied that it is not for the Applicant to prove that the talaq is not valid. Rather, the onus of proving a legally valid foreign divorce is on the party seeking to rely on that divorce: Wilson v. Kovalev, 2016 ONSC 163, at para. 10. Foreign law and the validity of a foreign court order are questions of fact to be established by the proponents. In this case, the onus is on the Respondent to show that the foreign divorce is valid. The Respondent has filed nothing in this proceeding.”