D. Recognition of Foreign Divorces

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 188-190

Contenidos

• 1) General Criteria.
• 2) Extra-Judicial Divorce.
• 3) Substantive and Procedural Defects.
• 4) Doctrine of Preclusion.

Page 188

See note ⁸²

1) General Criteria

Consistent with the jurisdiction conferred on Canadian courts by section 3(1) of the Divorce Act, section 22(1) provides that recognition shall be afforded to a foreign divorce granted on or after the commencement of the Act if either spouse was ordinarily resident⁸³in the foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for divorce.⁸⁴In the common law provinces, at least, section 22(1) of the Divorce Act may be superfluous in light of the law as defined in Robinson-Scott v Robinson-Scott.⁸⁵

Page 189

Sections 22(2) and 22(3) of the current Divorce Act substantially preserve the contents of section 6(2) of the Divorce Act, 1968. The continued recognition thereby afforded to foreign divorce decrees granted after 1 July 1968 on the jurisdictional basis of the wife’s independent domicile reflects the provisions of section 6(1) of the Divorce Act, 1968, coupled with the doctrine of comity and reciprocity endorsed in Travers v Holley.⁸⁶Section 22(3) of the Divorce Act expressly preserves pre-existing judge-made rules of law pertaining to the recognition of foreign divorces. It may be appropriate to summarize these rules.⁸⁷Canadian courts will recognize a foreign divorce:

· where jurisdiction was assumed on the basis of the domicile of the spouses;⁸⁸· where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;⁸⁹· where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;⁹⁰· where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court if they had occurred in Canada;⁹¹· where either the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted;⁹²and

· where the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection.⁹³

Page 190

If jurisdiction vests in the foreign court in accordance with the above criteria, the substantive ground for the foreign divorce is of no concern.⁹⁴Although the aforementioned rules were established by decisions of the English courts, they have generally been followed by Canadian courts, at least in those provinces that adhere to common law tradition.

Judicial recognition of a foreign divorce pursuant to section 22 of the Divorce Act does not imply that recognition automatically extends to any corollary order for financial relief granted in the foreign divorce judgment.⁹⁵

2) Extra-Judicial Divorce

Canadian courts may recognize an extra-judicial foreign divorce.⁹⁶

3) Substantive and Procedural Defects

The perpetration of fraud upon a...