“As set out in Wilson [v. Kovalev, 2016 ONSC 163], at para. 10, there are several grounds upon which the court will decline to recognize a foreign divorce:
At common law, there are presumptions in favour of the validity of a foreign divorce decree. Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained (Powell v. Cockburn, 1976 CanLII 29 (SCC), [1976] S.C.J. No. 66 (S.C.C.); Martinez v. Basail, 2010 ONSC 2038 (S.C.J.); Janes v. Pardo, Supra.) The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:
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- The Respondent did not receive notice of the Divorce Application;
- The foreign divorce is contrary to Canadian public policy;
- The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
- Where there is evidence of fraud going to the jurisdiction of the granting authority; or
- There was a denial of natural justice by the granting authority in making the divorce order.
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The question of when the court ought to invoke the defence of public policy was addressed by the Supreme Court of Canada in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. The Supreme Court stated, at para. 71, that “the public policy defence turns on whether the foreign law is contrary to our view of basic morality.” Further, at para. 76, an argument based on public policy “should not simply succeed for the sole reason that the foreign jurisdiction would not (or did not) yield the same result as might occur in Ontario or Canada.” The Supreme Court of Canada clarified, at para. 75, that the defence of public policy “is not a remedy to be used lightly” and it should have a “narrow application”.
There have been cases in Canada where the courts have refused to recognize a foreign divorce based on public policy grounds. The applicant points to Zhang v. Lin, 2010 ABQB 420, 92 R.F.L. (6th) 138 and Marzara v. Marzara, 2011 BCSC 408, [2011] B.C.J. No. 579.”