Foreign divorces

[toby]

This topic has been discussed in several contexts, and most people believe that if a Canadian resident wishes to divorce in a foreign country, he or she must reside in that country for a year before the divorce.

It ain't so.

PMM sent me to the CanLII website, and suggested I search “divorce and substantial connection”. I did not read all the cases; the first (Bhatti v. Canada) seemed to settle the issue clearly.

There is a lot of legal opining and argumentation in the case – I guess lawyers get paid by the word! However, after blowing away all the legalistic dust, the crux of the matter seems to be that where a Canadian resident has a real and substantial connection with a foreign jurisdiction, for a year before obtaining a divorce in that foreign jurisdiction, then Canada will recognize the divorce. A year of residence is not the only ground for valid divorce.

The CIC Operations Manual mentions both criteria: residence and connection.

Quoting from the court transcript:
“The Operations Manual on which the visa officer relied, states that the parties must ordinarily reside in the foreign jurisdiction for one year before applying for a divorce or the petitioner must have a real and substantial connection to the foreign jurisdiction for the one year period before divorce proceedings begin. (My emphasis.) The Operations Manual is not a statement of the law. Rather it is a guide and I find it more helpful to refer directly to the Divorce Act, the common law and the jurisprudence.”

In this court case, the man who wanted a divorce had lived in Canada for 30 years, returned to Pakistan for a month to get a divorce from his first wife, then returned to Canada and re-married. He was a citizen of Canada and Pakistan.

So, here's what the judge in the court case said, quoting from the Divorce Act, and applying it to a man who clearly had not resided in Pakistan a full year before getting a Pakistani divorce.

“The Divorce Act requires that one of the parties be ordinarily resident for at least a one-year period before the start of divorce proceedings. I take the words “ordinarily resident” to mean where one's every day life is centered and on the basis of being in Pakistan for one month in 1996, the appellant does not meet this criteria. However, the common-law concepts of “domicile” and “real and substantial connection” have not been displaced by the Divorce Act. This is implicit in a reading of sections 22(1) and (3). Indeed, in providing a guide for family law practitioners in Ontario when providing opinion letters about the recognition of foreign divorces, the Deputy Registrar of the Ministry of Consumer and Commercial Relations specifically refers to not only to subsection 22(1) but to recognition on the basis of domicile and on the basis of a real and substantial connection between the party or parties and the granting jurisdiction.[26]”(My emphasis.)

In the court's eyes, the man who divorced in Pakistan had such a “real and substantial connection” even though he was a Canadian citizen and had resided in Canada over 30 years. He was also a citizen of Pakistan, owned a house (inherited from his father), owned a small parcel of land, had committed to donating a large sum of money to a Pakistani religious school, and intended to retire in Pakistan.

So, not ignoring the worry of leaving it to a subjective Visa Officer to determine whether one has a “real and substantial connection” with a foreign divorce jurisdiction, in absence of a full year of residence, such a connection will serve as grounds for a valid foreign divorce.

 

[rjessome]

Just to be clear, only ONE of the parties to the divorce must be living in the jurisdiction of the divorce court for one year preceeding the date of the divorce.

Anyway, I like this research! But since it takes about a year to get a JR heard and decision made, plus the costs of the lawyer, and the fact that most visa officers will just look at the one year residency aspect and make a fast decision, it STILL makes better sense to get divorced in Canada even though it takes at least year since the date the parties ceased to reside together.

I like the research! However, the decision is based on the judge's interpretation and view of the appellant's submission and unique circumstances which still makes it subjective with plenty of gray area for a VO to play with and still make a negative decision even with this caselaw in hand. It definitely increases the chances submitting precedents like this at the application stage but it's far from a sure thing. The applicant better have an excellent understanding of the law and some persuasive writing skills or hire a good consultant/lawyer to present a compelling arguement at the outset showing how the applicant meets ALL of the decision points used in this case. That would be an interesting submission to write!

 

[toby]

Just to be clear, only ONE of the parties to the divorce must be living in the jurisdiction of the divorce court for one year preceeding the date of the divorce.

Anyway, I like this research! But since it takes about a year to get a JR heard and decision made, plus the costs of the lawyer, and the fact that most visa officers will just look at the one year residency aspect and make a fast decision, it STILL makes better sense to get divorced in Canada even though it takes at least year since the date the parties ceased to reside together.

Would a Visa Officer not look past the absence of a full year of residence in the foreign jurisdiction IF the applicant quoted the Operational Manual to him/her? The manual clearly allows clear and substantial relationships as one ground for a valid foreign divorce.


I like the research! However, the decision is based on the judge's interpretation and view of the appellant's submission and unique circumstances which still makes it subjective with plenty of gray area for a VO to play with and still make a negative decision even with this caselaw in hand.

That's true: the determination of a "clear and substantial relationship" is a judgment call -- either by the Visa Officer or the Judge. But why the need to hire a lawyer? If the applicant's case turns on the validity of the divorce -- which in turn is a relatively simple matter of adducing proofs of the "clear and substantial relationship" to the foreign jurisdiction -- why give that information to a lawyer, so he/she can give the same list to the VO or judge and charge you a princely sum for the small job? Unless I miss your point, there is no complicated argument to be made here.


It definitely increases the chances submitting precedents like this at the application stage but it's far from a sure thing. The applicant better have an excellent understanding of the law and some persuasive writing skills or hire a good consultant/lawyer to present a compelling arguement at the outset showing how the applicant meets ALL of the decision points used in this case. That would be an interesting submission to write!

 

[rjessome]

No, you didn't miss my point. Everyone is not you with the research interest and/or talent to present a well thought-out arguement based in law that would persuade the VO to make the decision you want. And I think you are way over-simplifying what would be required. My thoughts are that unless the "substantial connection" is pointed out and argued, then the VO is not going to look for it unless it is blatently obvious. This is NOT to be taken lightly as the complete onus is on the applicants. In my view, in order to adquately prove this connection, the proof has to be put forth at the outset. The case you are relying on had very good evidence of this connection even though the visa officer didn't think it was enough. In fact, since an appeal to the IAD is de novo, the VO didn't even have all of the evidence as presented to the Board member. There were other circumstances involved as well with the appellant relying on some bad family law advice after he married his 2nd wife that did not assist his immigration. You saw the number of legal opinions from both Canadian and Pakistan lawyers that were presented to support this appeal. That is by no means a "small job". Those do not come cheap yet they were vital to convincing the Board member that not only was it likely that Ontario would have recognized his religious divorce, but that a substantial connection to Pakistan existed. This is a very difficult point to prove and one that a VO may want to leave to the discretion of the IRB or to JR.

You should continue reading because the decisions more often swing the other way. Hossain v. Canada, Khadim v. Canada, Barna v. Canada, etc.

Like I said, proving this at the VO level would be a huge task and would require some excellent legal research, interpretation and writing skills as well as strong evidence. You are right that the manual "allows" for substantial connection as grounds for recognizing a foreign divorce however, the manuals are guides, not the law. IRPA, IRPR, the Divorce Act and caselaw take precendence. And the bulk of the caselaw surrounding substantial connection is not in favour of a positive result.

I love these chats with you toby! You come up with the best stuff.

 

[toby]

.... And I think you are way over-simplifying what would be required. My thoughts are that unless the "substantial connection" is pointed out and argued, then the VO is not going to look for it unless it is blatently obvious.

Call me simplistic, Rjessome (my friends do!!) , but the job of listing, describing and proving a list of connections seems relatively simple and straightforward. Where is the difficulty I am missing? The connections must speak for themselves; there is not much spinning or argumentation that will make a weak list stronger. Once described and corroborated with documentary evidence, there is nothing more to be done, and the Visa Officer makes a judgment call.

In fact, since an appeal to the IAD is de novo, the VO didn't even have all of the evidence as presented to the Board member.

Yes, if the PR application omitted some evidence of a real "connection", anyone in such a situation -- having read this fabulous forum -- will know that he/she must beef up this part of the PR application.

There were other circumstances involved as well with the appellant relying on some bad family law advice after he married his 2nd wife that did not assist his immigration.
You saw the number of legal opinions from both Canadian and Pakistan lawyers that were presented to support this appeal. That is by no means a "small job". Those do not come cheap yet they were vital to convincing the Board member that not only was it likely that Ontario would have recognized his religious divorce, but that a substantial connection to Pakistan existed. This is a very difficult point to prove and one that a VO may want to leave to the discretion of the IRB or to JR.

Hmm ... I don't know if I totally agree with this, and the sequence of events is already getting burred. As I recall, the appellant got a religious divorce, then an official divorce in Pakistan, married wife #2, and finally an Ontario divorce. If so, when the IAD declared the official Pakistan divorce to be valid, the earlier religious divorce and the later Ontario divorce became irrelevant, no? The only important point is that the appellant was legally divorced when he married the second time.

You should continue reading because the decisions more often swing the other way. Hossain v. Canada, Khadim v. Canada, Barna v. Canada, etc.

Ughh .... more reading? Now I remember why I decided against Law: too much uncertainty and subjectivism in an area supposed to provide clarity and certainty to citizens. That's why Plato excluded lawyers from his ideal society. lol

Did those cases swing against a "connection" being sufficient because the connections themselves were weak, or because the judges seemed predisposed against allowing this ground? Judges who are predisposed against allowing a "connection" can do so without declaring so by placing an almost-impossible burden of proof on the appellant. I know this calls for a personal opinion, but I'd value yours.


Like I said, proving this at the VO level would be a huge task and would require some excellent legal research, interpretation and writing skills as well as strong evidence. Perhaps you're right. You are right that the manual "allows" for substantial connection as grounds for recognizing a foreign divorce however, the manuals are guides, not the law. IRPA, IRPR, the Divorce Act and caselaw take precendence.

True, but I am guessing that the VO is governed by the Operational Manual, and only the Manual; he/she need not stury the case law and ensure that the Manual is in compliance with the Law. The latter would be the job of headquarters, to revise the Manual as needed.

But yes, if the application were denied, and it came to an IAD or (even more so) a judicial review, where the other side was going to get embroiled in secondary legal issues, I think a lawyer's help might be useful.

Nevertheless, short of an IAD or judicial review, I think that the VO reads the Operational Manual, sees that a "real and substantial connection" is a legitimate ground for a foreign divorce, examines the evidence for such a "connection", and makes a decision. No need to get bogged down in legalities to that point.

So, an applicant for PR who depends on a foreign divorce would (again) be well advised to present a strong case of his/her "connection" to the jurisdiction where the divorce was obtained.

And the bulk of the caselaw surrounding substantial connection is not in favour of a positive result.


I love these chats with you toby! You come up with the best stuff.

I return the compliment, rjessome. You are always well informed and articulate. I often come away from your posts with new insights. If I have time, I sit down until that feeling goes away, but some of them stick! lol.