“First, does the Ontario court lack jurisdiction over the subject matter of Ms. Bakhsh’s claim because the claim should have been brought in the parties’ annulment proceedings or other civil proceedings in Saudi Arabia, and is it also res judicata? The answer is no.
Ms. Bakhsh could not have brought her claim in Saudi Arabia. It is not disputed that, as the motion judge found, in accordance with s. 15 of the FLA, the law of Saudi Arabia, as the parties’ last common habitual residence, applies to Ms. Bakhsh’s claim in respect of the Ontario property. Based on the expert evidence called by the parties, the motion judge determined, correctly, in our view, that the question of the parties’ interests in property located outside Saudi Arabia had not been decided and could not have been decided in their annulment proceedings or in the separate civil proceedings concerning a property in Saudi Arabia.
The parties’ annulment proceedings only dissolved the marriage and did not resolve any other legal issues. As the parties’ experts agreed, and the motion judge accepted, Saudi Arabian law does not provide for equalization claims. The family courts in Saudi Arabia resolve issues related to the status of marriages, such as divorces and annulments, but do not have jurisdiction over property and financial disputes. The motion judge accepted Ms. Bakhsh’s expert’s evidence that property and financial disputes are within the jurisdiction of the Saudi Arabian civil courts.
In fact, and in confirmation of Ms. Bakhsh’s expert’s opinion accepted by the motion judge, the parties have been engaged in separate civil proceedings, apart from their annulment proceedings, in the civil court in Saudi Arabia. Ms. Bakhsh commenced a lawsuit in the civil court to determine the parties’ respective interests in property located in Jeddah, Saudi Arabia, that was acquired during their marriage. Further, the motion judge accepted Ms. Bakhsh’s expert’s unchallenged evidence that the civil courts of Saudi Arabia decline jurisdiction to deal with claims involving ownership of property and land outside of Saudi Arabia.
It is therefore clear that Ms. Bakhsh could not bring her claim for the condominium property in Saudi Arabia. Saudi Arabia does not have jurisdiction over the claim and the claim is therefore not res judicata. Moreover, Ontario clearly has jurisdiction to adjudicate the claim of Ms. Bakhsh, who resides in Ontario, concerning property located in Ontario, legal title to which is in Mr. Merdad’s name.
The motion judge’s determination that the Ontario court does not lack jurisdiction and that Ms. Bakhsh’s claim was not res judicata was amply supported by the record and contains no error.”
Bakhsh v. Merdad, 2022 ONCA 130 (CanLII) at 5-10