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Attornment - Family Law. Mehralian v. Dunmore
In Mehralian v. Dunmore (Ont CA, 2023) the Court of Appeal considers (and dismisses) an appeal of an order that a marriage, recognized in Omani courts, was recognized in Ontario. In these quotes the court considers 'attornment':[26] In this case, the Divorce Recognition Judge’s finding that the applicant attorned to the jurisdiction of Omani courts is one of fact. He found that, although the applicant initially contested the jurisdiction of the Omani courts, she subsequently made a voluntary and rational choice to participate fully on the merits. This included litigating the merits of the divorce, in which she asserted that under Omani law her marriage to the respondent was invalid and that the respondent had made false statements in the course of obtaining the divorce. The applicant also sought and obtained relief from the Omani court, through the award of custody of M.
[27] The applicant has failed to identify any palpable or overriding error in the Divorce Recognition Judge’s finding that she attorned to the jurisdiction of the Omani courts. Rather, the applicant invites this court to substitute its own factual finding in place of that of the Divorce Recognition Judge.
[28] The Divorce Recognition Judge’s finding was firmly grounded in the factual record. Indeed, as he pointed out, his findings in this regard were based on facts that were essentially uncontested. I see no basis for disturbing his finding that the applicant attorned to the jurisdiction of Omani courts.
[29] In my view, this is sufficient to dispose of this appeal.
[30] Parties to an action are free to select or accept the jurisdiction in which their dispute is to be resolved: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 37. As the Divorce Recognition Judge noted, a party that has voluntarily attorned to the jurisdiction of a court has consented to having the issues in dispute determined by that court. Where jurisdiction is established through such consent, as in this case, it is unnecessary to consider whether there are other grounds upon which a court’s jurisdiction might be either recognized or challenged, such as whether the parties had a real and substantial connection with the jurisdiction in question: Wolfe v. Pickar, 2011 ONCA 347, 332 D.L.R. (4th) 157, at paras. 43-44.
[31] For the same reason, the Divorce Recognition Judge did not err in his finding that the applicant could not relitigate issues that she had unsuccessfully raised before the Omani court. These issues included whether the applicant had received valid notice of the Omani divorce and whether the respondent had committed fraud in obtaining the divorce.
[32] Although the Divorce Recognition Judge did consider whether the Omani divorce should not be recognized in Ontario because the divorce laws of Oman are contrary to Canadian public policy, in my view it was unnecessary for him to do so. This is because consent to the jurisdiction of the foreign court necessarily involves consent to the laws applicable in that jurisdiction.
[33] The Divorce Recognition Judge found that although the applicant was not required to agree that the validity of the parties’ divorce should be decided by the Omani courts, she voluntarily chose to do so. In so doing, she agreed to have the validity of the divorce determined in accordance with Omani law. Having consented to the application of Omani law, the applicant cannot now argue that the decision of the Omani court should not be recognized in Ontario because the law on which it was based is contrary to Canadian public policy.
[34] I would therefore dismiss the applicant’s appeal of the Divorce Recognition Order.
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