Canada (Minister of Citizenship and Immigration) v. Hazimeh

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Russell, J.
• Citation: 2009 FC 380,(2009), 344 F.T.R. 160 (FC)
• Date: 11 February 2009

Can. (M.C.I.) v. Hazimeh (2009), 344 F.T.R. 160 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AP.030

The Minister of Citizenship and Immigration (applicant) v. Hoda Hussein Hazimeh (respondent)

(IMM-3162-08; 2009 FC 380)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Hazimeh

Federal Court

Russell, J.

April 15, 2009.

Summary:

Hazimeh was originally from Lebanon. In 1992, she married Hammoud in Lebanon. In October 1993, she came to Canada on Hammoud's sponsorship and obtained Canadian citizenship. In November 1993, Hazimeh underwent a religious "talaq" divorce in Ontario. In May 1999, Hazimeh registered the divorce in Lebanon. In August 1999, Hazimeh married Farhat in Lebanon. She returned to Canada and petitioned the Superior Court for a divorce from Hammoud. The divorce was granted in July 2001. In August 2001 and October 2005, Hazimeh applied to sponsor Farhat as a member of the family class. Both applications were refused on the basis that Hazimeh was still married to Hammoud when she married Farhat so that Farhat could not be part of the family class. The Immigration and Refugee Board, Appeal Division, allowed Hazimeh's appeal. The Minister sought judicial review.

The Federal Court allowed the application.

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - Hazimeh was originally from Lebanon - In 1992, she married Hammoud in Lebanon - In October 1993, she came to Canada on Hammoud's sponsorship and obtained Canadian citizenship - In November 1993, Hazimeh underwent a religious "talaq" divorce in Ontario - In May 1999, Hazimeh registered the divorce in Lebanon - In August 1999, Hazimeh married Farhat in Lebanon - She returned to Canada and petitioned the Superior Court for a divorce from Hammoud - The divorce was granted in July 2001 - In August 2001 and October 2005, Hazimeh applied to sponsor Farhat as a member of the family class - Both applications were refused on the basis that Hazimeh was still married to Hammoud when she married Farhat so that Farhat could not be part of the family class - The Immigration and Refugee Board, Appeal Division, (IAD) allowed Hazimeh's appeal - The IAD concluded that the divorce registered in Lebanon in May 1999 was a "foreign divorce" under s. 22(1) of the Divorce Act such that Hazimeh's marriage to Farhat in August 1999 was valid - The Minister sought judicial review - The Federal Court allowed the application - The November 1993 talaq divorce was not a divorce recognized in Canada - Lebanon simply confirmed the religious divorce and recognized it for the purpose of Lebanese law - This did not make the talaq divorce a Lebanese divorce - There was no "divorce granted" under a law other than Canadian law by an authority having jurisdiction to do so - The recognition and registration of a talaq divorce that took place in Canada did not produce a "foreign divorce" - If simple registration in Lebanon sufficed, that would turn a talaq divorce that Canada did not recognize into one that Canada had to recognize - The matter was remitted to the IAD for reconsideration - See paragraphs 49 to 70.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - Hazimeh was originally from Lebanon - In 1992, she married Hammoud in Lebanon - In October 1993, she came to Canada on Hammoud's sponsorship and obtained Canadian citizenship - In November 1993, Hazimeh underwent a religious "talaq" divorce in Ontario - In May 1999, Hazimeh registered the divorce in Lebanon - In August 1999, Hazimeh married Farhat in Lebanon - She returned to Canada and petitioned the Superior Court for a divorce from Hammoud - The divorce was granted in July 2001 - In August 2001 and October 2005, Hazimeh applied to sponsor Farhat as a member of the family class - Both applications were refused on the basis that Hazimeh was still married to Hammoud when she married Farhat so that Farhat could not be part of the family class - The Immigration and Refugee Board, Appeal Division, (IAD) allowed Hazimeh's appeal - The Minister sought judicial review - The Federal Court indicated that the issues raised by the Minister involved questions of law - The appropriate standard of review was correctness - See paragraphs 16 to 20.

Conflict of Laws - Topic 2121

Family law - Divorce - Recognition of foreign decrees - General - [See Aliens - Topic 1287 ].

Family Law - Topic 3985

Divorce - Foreign decrees - Recognition of - In Canada - [See Aliens - Topic 1287 ].

Cases Noticed:

Amin v. Canada (Minister of Citizenship and Immigration) (2008), 322 F.T.R. 293; 2008 FC 168, refd to. [para. 8].

Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573 (T.D.), refd to. [para. 16].

Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; 87 F.T.R. 46 (T.D.), refd to. [para. 17].

Chieu v. Canada (Minister of Citizenship and Immigration) (2002), 280 N.R. 268 (S.C.C.), refd to. [para. 18].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 19].

Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), refd to. [para. 38].

El Fadl v. El Fadl, [2000] 1 F.L.R. 175, refd to. [para. 39].

Bhatti v. Canada (Minister of Citizenship and Immigration), [2003] I.A.D.D. No. 519, refd to. [para. 42].

Amjad v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 21, refd to. [para. 43].

Schwebel v. Ungar, [1965] S.C.R. 148, refd to. [para. 44].

Bruker v. Marcovitz (2007), 270 N.R. 1; 2007 SCC 54, refd to. [para. 44].

Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.), refd to. [para. 45].

Powell v. Cockburn, [1977] 2 S.C.R. 218; 8 N.R. 215, refd to. [para. 47].

Berkovits v. Grinberg, [1995] 1 F.L.R. 477, refd to. [para. 65].

Authors and Works Noticed:

Morley, Jeremy, Non-Recognition of Japanese Consent Divorces in the U.K., generally [para. 39].

Counsel:

Lorne McClenaghan, for the applicant;

Edward Corrigan, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Edward C. Corrigan, London, Ontario, for the respondent.

This application was heard on February 11, 2009, at Toronto, Ontario, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on April 15, 2009.