Essa v Mekawi, 2014 ONSC 7409

This case addresses whether a foreign divorce should be recognized in Ontario for family law purposes.

Background

The Applicant Wife and Respondent Husband were married in Egypt on December 20, 2003.  The Wife joined the Husband in Canada in August 2004, where he worked as an engineer.  The parties lived in the Greater Toronto Area for three years.  In August 2007, the parties returned to Egypt with their two Canadian-born daughters.  The children were both under the age of two when they left Canada.

The family moved to Saudi Arabia in 2009.  In September of that year, the family moved back to Egypt and the parties separated shortly thereafter.  The Wife and children continued to live in Egypt and the Husband returned to Saudi Arabia.  The Husband obtained an Egyptian divorce while living in Saudi Arabia on October 5, 2009 using his brother (in Egypt) as his Power of Attorney.

In June 2012, the Wife moved to Kitchener, Ontario with the children.  The Wife and her parents concealed this from the Husband and his family for over a year.  In January, 2013, the Wife commenced a proceeding in the Ontario Superior Court of Justice.   The Wife sought various Orders, including a declaration that the Egyptian divorce is not recognized in Ontario so that she may claim a divorce and corollary relief under the Divorce Act.  In the alternative, if the Egyptian divorce was recognized, the Wife requested that the Court assume jurisdiction over child custody, access, child support, and a restraining order, pursuant to the Children’s Law Reform Act and the parens patriae jurisdiction of the Court.

The Husband sought to have the Wife’s Application stayed and/or dismissed on the basis that Ontario lacked jurisdiction with respect to the matter.  The Husband also sought to have the children returned to Egypt.

Analysis

Section 22 of the Divorce Act addresses the recognition of foreign divorces in Canada.  The relevant provisions for this case are subsections 22(1) and 22(3). Subsection 22(1) reads as follows:

“A divorce granted… pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.”

The parties were not “ordinarily resident” in Egypt because they had lived Saudi Arabia prior to the divorce proceeding.  Nevertheless, Campbell J. found that the divorce should be recognized in Ontario because it was obtained in accordance with the law of Egypt, which has no such residency requirement for divorce.  The Court relied on expert opinion evidence to reach the conclusion that the divorce was properly obtained in Egypt.

Pursuant to section 22(3) of the Divorce Act, “[n]othing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.” This permits a Court to refuse to recognize a foreign divorce on the basis of common law principles or the principles of conflicts of law. A court may refuse to recognize a divorce if a spouse did not receive notice of the divorce, the foreign order is contrary to public policy, the foreign court did not have proper jurisdiction, or there was fraud (Pitre v Nyugen, 2007 BCSC 1161).

Although the Wife did not receive notice prior to the divorce, she was notified immediately after and had nearly three months to challenge the divorce.  Instead the Wife attorned to, or acknowledged, the jurisdiction of the Egyptian Court by commencing several of her own matrimonial proceedings there.  The Court determined that the Wife had accepted the Egyptian divorce as valid but simply preferred the proprietary and child/spousal support remedies that would be available to her under the Ontario regime.  With respect to public policy considerations, the Court found it was the Wife who had violated Canadian public policy when she wrongfully removed her children from Egypt.

The Court stated that Ontario will recognize a divorce obtained outside of Canada if:

“(1) the parties were domiciled in the foreign country at the time proceedings were commenced; (2) either party was domiciled in the granting country at the time of the divorce; (3) the divorce, wherever granted, would be recognized by the law of the country where the parties were domiciled at the time of the divorce; (4) had the facts arisen in that forum, the foreign court could have taken jurisdiction to grant the divorce; or (5) there was a real and substantial connection between the parties to the marriage and the country that granted the divorce.” (Paragraph 59)

The Court held that Egypt was the appropriate forum for the divorce based on the real and substantial connection test, as laid out in Van Breda v Village Resorts Ltd, 2012 SCC 17.  There were enough presumptive connecting factors that pointed to a real and substantial relationship between the parties’ ongoing divorce proceedings and Egypt in comparison to Canada.  The Court therefore recognized the Egyptian divorce for all purposes including child and spousal support, property division, and child custody and access.

The Court considered whether it may assume jurisdiction to make a child custody or access order under section 22 or 23 of the Children’s Law Reform Act or under the Court’s Parens Patriae jurisdiction.  The Court found that none of the provisions applied to the case at bar and declined to exercise jurisdiction. Furthermore, although Egypt is not a signatory to the Hague Convention on the Civil Aspects of International Child Abductions, there is a bilateral Agreement between Canada and Egypt respecting family matters that promotes the co-operation of both countries. The Court did not find the Wife credible and did not believe that the children would be exposed to harm by their father in Egypt. Therefore, the Court ordered that the children to be returned to Egypt.

Update

In April 2015, the Wife’s motion to stay the Order to return the children to Egypt was granted, pending her appeal.  The Wife provided evidence that the Father was not actually exercising custody/access rights at the time the Mother removed the two girls to Ontario.  The appeal will be heard in August or September 2015.

An important lesson regarding this case is when someone is going through a divorce and they may live in more than one province or country they should consult with lawyers in both locations before they take any steps in the matter.  This is important in order to try and understand where the case should be heard.  In this case the Wife lost any opportunity to make a claim for spousal support as she was Divorced in Egypt.