Divorce in a foreign country while residing in Canada

[toby]

We have debated whether a divorce obtained in a foreign country (where the marriage was first registered) -- while the person is resident in Canada -- is valid in Canada or not. Many argued that the divorce is not valid unless the person was resident in that foreign country for a year, or at least for a certain length of time, before obtaining the divorce.

Turns out that someone residing in Canada CAN divorce in the mother country, without residing in that country, and the divorce will be recognized in Canada.

Here’s the case: http://www.canlii.org/eliisa/highlight.do?text=matrimonial+home+AND+house+AND+divorce&language=en&searchTitle=Federal+-+Federal+Court+of+Canada&path=/en/ca/fct/doc/2009/2009fc380/2009fc380.html

For those who prefer an executive summary, here is mine.

The woman (1) had been married in Lebanon, (2) became a Canadian resident, (3) divorced her first husband in Canada according to Supreme Shiite Islamic Council in November 1993 (did not go through the Canadian courts), (4) and then registered the divorce in court in Lebanon in May 1999.

She re-married in Lebanon and then petitioned Canada to legally recognize her divorce in Lebanon. She also applied to sponsor her second husband to Canada. Her application to sponsor was denied, and she appealed to the IAD.

The IAD ruled that her divorce in Lebanon (registered in May 1999 while she was residing in Canada) was legal in Canada, and so she could sponsor her second husband.

In other words, it is not necessary to reside in the foreign jurisdiction to obtain a divorce legal in Canada.

 

[canadianwoman]

Yes, but that case is a judicial review of the Immigration Appeal Board's decision to allow the woman's appeal. In other words, the Federal Court of Canada was asked to review whether the IAB made the right decision, and the FCC decided 'no'. The FCC sent the case back to the IAB to be heard again.

Because of the way she obtained her divorce, she had to make two applications to sponsor her new spouse, was refused twice, appealed, won the appeal, and then the IAB's decision was challenged in the Federal Court and she lost. She started her sponsorship in 2001, and this Federal Court case was heard in 2009. And the husband is still not a PR, as far as we know.

If she had just gotten divorced properly in Canada, her husband would have gotten approved in 2002, probably, and they would have saved a great deal of time and money.

 

[iarblue]

I was thinking the exact same thing and i think we stated here that you did not have to be a resident you just had to have ties with the country.And it still had to be approved or recgonized by the courts in Canada.You can get a divorce in your home country or here (saves a lot of time if you do it here like Canadianwoman pointed out)it just has to recgonized here by the courts.

 

[toby]

I agree with you to a point, and your comments made me go back and read the transcript more carefully. Thanks for that.

I agree: it would have been easier to get the divorce in Canada. However, this issue arose when the original poster said he found Canadian Divorce Law unfair, and thought to return to his home country to get a divorce.

I recall the ensuing discussion differently from you: I recall there was a lot of talk about how long the original poster would have to reside in his home country before he could obtain a divorce that Canada would accept as valid. In other words, to have a “real and substantial connection” to the home country, the poster would have to move there for a long time prior to obtaining a divorce --- according to the majority of people who weighed in on this topic.

Perhaps you (alone) did not argue that prior residence was absolutely required for the “real … connection”; but then you could not have logically argued against his getting a divorce in the home country, because he had many other strong ties (was married there, was a citizen there, had family there, etc etc).

But deciding who said what to whom is not as important as understanding the circumstances of getting a divorce in a home country that is legal in Canada.

The short answer is that we still don't know. It is disappointing that the Minister of CIC – in this court case – chose to set aside the issue of whether the woman (resident in Canada, not in Lebanon) had a sufficiently “real and substantial connection” to her home country, for the divorce to be valid there.

I don’t understand why the Minister – intent on overturning the IAD decision that the divorce was valid in Lebanon – avoided such an apparently-strong argument. If she was required to reside in Lebanonn for a period of time before obtaining a divorce there -- and clearly she was not resident there-- case closed, no?!

But the Minister avoided this argument, which suggests that the argument was not as strong as it appeared. If this is so, then it follows that the requirement for prior residence is not always absolute. In other words, it might be possible to have a “real … connection” to the home country without necessarily being resident there. We just don’t know from this court case, so thanks for pointing out the uncertainty.

By the way, the Minister succeeded in overturning the IAD decision, but the issue was a different, more logically-arcane issue: did the woman’s Talaq divorce in Canada become a Lebanon divorce when she registered it in Lebanon? In other words, did registering it in Lebanon make it a Lebanon divorce?

The court ruled the divorce was not an official divorce in Lebanon, and so had no force in Canada.

 

[canadianwoman]

... then it follows that the requirement for prior residence is not always absolute. In other words, it might be possible to have a “real ... connection” to the home country without necessarily being resident there. We just don't know from this court case, so thanks for pointing out the uncertainty.

From the law we have seen, it seems that it is possible to have a real connection to the home country without residing there; we just haven't seen any examples yet of what that connection would entail. The Ecuadorian case I cited earlier, for example, showed that what most people would consider to be a real connection (born in E., a citizen of E., close ties to E., only recently left) was not in fact enough to get a divorce there that would be recognized in Canada.

By the way, the Minister succeeded in overturning the IAD decision, but the issue was a different, more logically-arcane issue: did the woman's Talaq divorce in Canada become a Lebanon divorce when she registered it in Lebanon? In other words, did registering it in Lebanon make it a Lebanon divorce?

Yes, too bad she didn't get a Talaq divorce in Lebanon and register it there. Then we would have seen if it would have been recognized in Canada.

In some appeal cases I have seen, the Minister does not bother arguing more than is necessary to win. For example, if he knows he can win by challenging the legality of the marriage, he will not also challenge the genuineness of the relationship. They deal with the question that is easiest to resolve first. I think they did that here. They didn't have to go into whether her connections to Lebanon were close enough, because they could rule her divorce was not valid in Canada for another reason.

 

[toby]

In some appeal cases I have seen, the Minister does not bother arguing more than is necessary to win.... They deal with the question that is easiest to resolve first. I think they did that here. They didn't have to go into whether her connections to Lebanon were close enough, because they could rule her divorce was not valid in Canada for another reason.

It is precisely your reasoning that makes me suspect that establishing a connection with the home country must be more complicated than meets the eye, and we all should be careful not to give strong advice on this topic, when we are all just speculating. The Minister must have felt he was on weak grounds challenging the woman's connection to Lebanon, even though on the face of it this route seemed the easier one than the one he took. The route he did take was not an obviously-easy one -- witness the long, involved legal argument in the judge's analysis.

Clearly the woman was not resident in Lebanon, and so prior residency cannot be a preqrequisite, or the Minister would have had an easy case to prove, and would have taken this route.

Was there any suggestion in the Ecuador case you cite that indicate what type of ties to a home country WOULD establish a sufficient connection?

 

[canadianwoman]

It is precisely your reasoning that makes me suspect that establishing a connection with the home country must be more complicated than meets the eye, and we all should be careful not to give strong advice on this topic, when we are all just speculating. The Minister must have felt he was on weak grounds challenging the woman's connection to Lebanon, even though on the face of it this route seemed the easier one than the one he took. The route he did take was not an obviously-easy one -- witness the long, involved legal argument in the judge's analysis.

Clearly the woman was not resident in Lebanon, and so prior residency cannot be a preqrequisite, or the Minister would have had an easy case to prove, and would have taken this route.

But she had been in Canada less than a month when she got the divorce. It seems to me her ties to Lebanon were far greater than her ties to Canada. This case is complicated by the fact that the reasons Canadian officials were giving for refusing her applications were not just what they were saying. Clearly, she got into Canada through a marriage of convenience, and then tried to sponsor her new husband. Is this fair? I'd say 'no'; maybe in a situation where she was the victim, and was not just abusing the Canadian immigration system, the courts would have recognized her divorce.

Was there any suggestion in the Ecuador case you cite that indicate what type of ties to a home country WOULD establish a sufficient connection?

No. That case was also complicated. The issue was not just the legality of a divorce in Ecuador; it was also the legality of the way he tried to do it.

We really need to see more cases. It looks like this area of the law is a judgement call.

I think the best advice we could give anyone would be to get the divorce in Canada, even if a divorce in their home country would be recognized in Canada. The legal fees of the Lebanese woman must have been enormous, not to mention the length of time she has been waiting to sponsor her second husband. Any sponsorship case with a foreign divorce gets extra scrutiny; if it refused as a result, there's a long wait for the appeal, and higher legal fees.

 

[toby]

That's good advice -- if we're focusing on the divorce itself.

But if one is trying to avoid the (um, er) bias of Canadian Divorce Law in favour of the poorer spouse, especially the division of the family home where the marriage was short and the poorer spouse contributed barely a sou, then we have a different discussion, which shall await a more leisurely day and the consumption of several beers to free the tongue. ;D

Now watch my ratings plummet even more!

 

[Leon]

If the couple is starting off with a "poorer" spouse that is not contributing anything while the other has much in assets, pre-nups would be in order. If you don't bother get pre-nups, no use complaining later.

 

[iarblue]

Well put Leon.

 

[toby]

Pre-nups are always a good idea, but sometime the Canadian Divorce Courts set them aside.

It is said that the ink never dries on divorce settlements; the poorer spouse can blow through (usually) her money and then go back to the court to ask for more. Hence the original poster's desire to go elsewhere (anywhere but Canada) for a divorce.

 

[toby]

Furthermore, Leon (although we are digressing from the point of the original post, let's pursue this for a short distance), a prenuptial agreement in this case would have had to be executed in the home country, where the marriage occurred. Maybe prenups are not normal there. Even if he had one, would it be valid in Canada, if the husband sought a divorce in Canada? I'm not so sure about this.

If he had wanted to be sure, he would have had to execute a post-nup signed in Canada. This seems unfeasible for several reasons. As I recall the time line, his marriage hit the rocks soon after arrival in Canada, at which point she would not want to sign any such postnup. Second, knowing enough to execute a postnup required him to be aware of the intricacies of Canadian Divoce Law -- not perhaps at the top of the priority list for an immigrant trying to get settled and attend to the many other bureaucratic details required to settle in to a life in Canada.

So, I suggest you're being a little too severe with him for not having a prenup. People can change countries and get unwittingly tangled up in the different laws surrounding divorce in Canada. It is a swamp of uncertainty (and billable hours for lawyers) for even a Canadian, and more so for an immigrant.

 

[chelley]

back to the original topic, very different circumstances, but my US divorce was not questioned whatsoever in the sponsorship of my second husband... i processed the divorce thru GA courts because my ex was living there and it was much quicker, easier, cheaper and much more beneficial than thru Canadian courts... took 5 weeks from beginning to end =)

i'm a canadian citizen, but was married in GA and resided there for a little under a year...

funny thing is that to get the particular judge to approve the divorce, a very equally scheduled child custody document needed to be presented... my ex (1400km away) has rights to our children every other weekend and 2 evenings a week... i also have complete rights to (easily) take him to court to get his wages garnished for child support (easier said than done if i had done it thru canadian courts)... so it was the best move all around for us..

but again... different circumstances... i think that the circumstances behind the case will obviously have some influence on how they come about questioning it... but it is very possible to divorce in a country you don't personally reside in and have sponsorship approved (without question)