Wednesday, November 30, 2016

Recognizing Foreign Divorces in Canada

BY PAUL B. ADAM, ASSOCIATE LAWYER

If you were divorced in a foreign country, and now plan to marry in Canada, beware.

Not all divorces are created equal.

For a foreign divorce to be validated in Canada, it needs to have been granted according to the law of that country, by a court of that country with the power to grant a divorce. There is such a wide range of divorce laws and courts around the globe. Some are consistent with this country's legal principles and others are not.

According to Canadian law, if a couple has been divorced in a foreign country, they must provide proof that the foreign divorce they obtained was valid in order to remarry in this province.

The only proof that the Canadian government will accept is an opinion letter from a lawyer.


THE OPINION LETTER


Why is a lawyer's opinion necessary? Due to the wide range of family law systems throughout the world, the government relies on the legal profession to scrutinize foreign divorce orders and ensure they were obtained properly, by Canadian standards.

This opinion letter is not a rubber stamp exercise, either. Lawyers should be carefully reviewing the foreign law, original documents from the clients, with translations if necessary, and facts about the separation and divorce. They are required to give a well-considered opinion that is supported by facts.

WHEN WILL A DIVORCE BE RECOGNIZED?

A divorce will be valid by Canadian standards if when the foreign court granted the divorce,
  1. at least one spouse resided in the country or territory that granted the divorce; and
  2. they lived there for at least one year.
  3. the divorce was not obtained through unfair means such as fraud or coercion. 
When a couple obtains a divorce, without having met the tests outlined in items 1 and 2 above, the government may still accept the divorce if it was legal by local standards, and it takes into considerations the other rights that spouses may have after a separation in this country, including spousal support, child support, and fair custody and access arrangements. 

What can happen if a person was divorced and the divorce was granted legally according to the laws of the foreign country, but not legally by Canadian standards?

For example, several US states, including Florida, Texas and California, will grant a divorce if one spouse has lived in that state for six months. In Illinois, the time period is 90 days, in Nevada, it is just six weeks. As well, several foreign countries have legal systems with a mix of religious and state-run courts, which have their own rules and procedures.

When a Canadian lawyer is writing an opinion letter about the validity of such a divorce, he or she must provide facts and evidence to support the opinion that the divorce is valid, and demonstrate how the divorce addresses the various requirements of the Divorce Act regarding access, custody and support.


This process is meant to weed out divorces that would be considered unfair by Canadian standards and prevent them from being recognized, when this would cause harm to an ex-spouse, or the children of a foreign marriage.

CANADIAN LAWS vs. FOREIGN LAWS

The question of validity can involve a complex comparison of divorce law in two jurisdictions

In Zhang v Lin, the Alberta Court of Queen's Bench refused to recognize a Texas divorce granted to one spouse. The spouse had obtained a divorce that was apparently valid by Texas law. However, those laws did not deal with child and spousal support properly, by Canadian standards.

On the other hand, consider Martinez v Basail: a couple were married in Cuba in 2004, and emigrated to Ontario. In 2007, while living in Ontario, they decided to separate, and mistakenly believed that needed to get a divorce back in Cuba. They travelled there and obtained an uncontested divorce with terms of custody, access and spousal support that were fairly reasonable by Canadian standards. And yet, they had only been in Cuba at the time for around one month. 

The Ontario Court accepted that even though the couple did not meet any sort of normal residency requirement that is usually a requirement for a foreign divorce, this divorce valid, because the parties obtained it together, with good intentions.

- Paul B. Adam, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

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