“The question on this appeal is whether Canadian law recognizes an Islamic talaq divorce (a “bare talaq divorce”), performed in Ontario and subsequently registered with Egyptian governmental agencies.
A bare talaq divorce arises from the husband’s unilateral and exclusive right to dissolve the marriage through a “private recital of verbal formula”: Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), at p. 1031; Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 F.C.R. 531, at para. 20; Abdulla v. Al-Kayem, 2021 ONSC 3562, at para. 20; Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 23. Courts have declined to recognize bare talaq divorces as effective; without some form of adjudicative or official oversight, they are regarded as “manifestly contrary to public policy”: Chaudhary, at p. 1032; Amin, at para. 20; Abdulla, at para. 21.
It is not controversial that bare talaq divorces, without more, have not been recognized as valid in Canada. While a bare talaq divorce that is performed in accordance with customary requirements is sufficient to establish the validity of the divorce under Islamic religious law, it does not comprehend the civil law component of adjudicative or official oversight “to address important public policy issues which can arise out of the domestic recognition of informal or religiously-based divorces”: Amin, at para. 20; Canada v. Hazimeh, 2009 FC 380, 344 F.T.R. 160, at para. 8; Butt v. Canada (Citizenship and Immigration), 2010 CanLII 78765 (CA IRB), at paras. 24-25. Those public policy issues include the potential for abuse and lack of natural justice (including lack of notice) because of the unilateral nature of a bare talaq divorce that, as confirmed by the expert evidence in this case, is effective under Islamic law upon the husband’s third pronouncement of his intent to divorce. Despite its effect on the wife’s status and her rights to corollary relief, the wife has no participatory role and cannot stop the divorce from coming into effect.
Here, respectfully, the motion judge erred. Foreign law is a fact to be proved by expert evidence. While a foreign divorce decree granted by a competent authority is presumptively valid, the onus of proving that a foreign divorce is a foreign divorce decree granted by a competent authority is on the party seeking to rely upon it (here, the respondent): Abdulla, at para. 22. There was no expert evidence that the Egyptian governmental authorities, which authenticated the bare talaq divorce by registration, were divorce-granting authorities or that the registered bare talaq divorce was a foreign divorce decree granted by a competent authority that, under common law, was presumptively valid. Moreover, as with the Egyptian governmental registration of the bare talaq divorce, the Ontario governmental issuance of a marriage licence, following the Declaration of Divorce, did not serve to recognize the registered bare talaq divorce as a valid foreign divorce that had been granted by a divorce-granting authority, for the purposes of s. 22 of the Divorce Act.
For any part of s. 22 of the Divorce Act to be engaged and a foreign divorce recognized under Canadian law, the divorce must be granted and not only administratively registered or recognized by a competent authority. Here, there was no evidence that a competent authority granted the divorce, as required under s. 22 of the Act.”