“Section 22 of the Divorce Act provides for the recognition of foreign divorces in Canada. Section 22(3) expressly upholds the common law principles that were helpfully summarized in Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111: Canadian courts will recognize a foreign divorce: (i) where jurisdiction was assumed on the basis of the domicile of the spouses; (ii) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties; (iii) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings; (iv) where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada; (v) where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or (vi) where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection. See also Jean-Gabriel Castel and Janet Walker, Canadian Conflict of Laws, 6th ed., loose-leaf (Markham: LexisNexis Canada Inc., 2005) at para.17.2.a; El Qaoud v. Orabi, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 14. As already noted, Mr. Lyzo contends that the Russian Divorce was properly obtained in the Russian Federation on the basis of the parties’ real and substantial connection to that jurisdiction.
A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice (including the absence of notice) or public policy: see Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218, at p. 227; El Qaoud, at paras. 17-18; Delaporte v. Delaporte, [1927] 4 D.L.R. 933; and Canadian Conflict of Laws, at para.17.2.c.
In this case, the motion judge need not have been concerned with the deficiencies in the evidence as to whether the divorce was obtained in compliance with Russian law. In particular, she need not have been concerned with whether, had the Russian tribunal known about the respondent’s residence in Canada, it would have taken further measures to ensure proper service before granting the Russian Divorce. It is not typically appropriate or necessary for Canadian courts to inquire into the substantive grounds upon which a foreign divorce decree is granted: see e.g. Powell, at p. 228 and Pitre v. Nguyen, 2007 BCSC 1161, at paras. 17-18.
Nonetheless, the motion judge appropriately focussed on the lack of notice to Ms. Novikova, which was a denial of natural justice. This was the reason for the refusal to recognize the Russian Divorce. As in Powell, where there was evidence of fraud rather than lack of notice, it was appropriate to address this issue before (or without) engaging in an analysis of “real and substantial connection”: Powell, at p. 227. While it is true, as Mr. Lyzo submits, that fraud, natural justice, and public policy are often referred to as “defences”, it is not necessary for the court to consider them ‘second’, as demonstrated by Powell.”