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Family - Divorce. Assayag-Shneer v. Shneer
In Assayag-Shneer v. Shneer (Ont CA, 2023) the Court of Appeal considers variation in support under the Divorce Act:(a) Variation under the Divorce Act
[22] Section 17(1)(a) of the Divorce Act provides that a court may make an order varying a provision of a spousal support order. There is no issue that the support provisions of the divorce judgment constituted a spousal support order within the meaning of s. 17(1)(a). But s. 17(4.1) of the Divorce Act provides that:Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. The motion judge found that the necessary change in circumstances had not occurred, and the correctness of that conclusion is not in issue on this appeal.
[23] As the motion judge noted, the question posed by s. 17(4.1) is a threshold question. However, he did not give effect to the threshold not having been met. This was an error. As the Supreme Court explained in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, the threshold had to be met before the motion judge could vary the spousal support order under s. 17.
[24] L.M.P. involved a motion under s. 17 of the Divorce Act to vary an order that incorporated the support terms of the parties’ separation agreement. The majority held that the threshold question is the same whether or not a spousal support order incorporates an agreement: at para. 36. And it made it clear that the failure to meet the threshold, and establish that a material change in circumstances has occurred, means that there is no basis to vary a spousal support order.
[25] As the majority stated at paras. 29 and 31, under the heading “The Threshold for Variation”:In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order.
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[Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670] described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determining whether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation. The onus is on the party seeking a variation to establish such a change. [Emphasis added.] [26] The court in L.M.P. held that since the trial judge did not find a material change in circumstances, she erred in varying the support order. Since there had been no material change, “this ought to have been dispositive of the husband’s application to vary”: at para. 55. It was an error to conduct what was in essence a de novo assessment of the propriety of the support provisions: at para. 56. The husband’s application could not succeed because “he has failed to meet the threshold required by s. 17(4.1)”: at para. 60.
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[29] In making an order for spousal support, the court is to take into consideration, among other factors, “any order, agreement or arrangement relating to support of either spouse”: Divorce Act, s. 15.2(4)(c). When the divorce judgment incorporated the support provisions the parties had agreed to in the Minutes, the court was giving effect to this provision. The divorce judgment support provisions were to be taken as correctly granted. This does not mean they could not be varied upon demonstration of a material change in circumstances, but the correctness of the divorce judgment’s provisions for spousal support was not open to question on a motion to vary without any material change in circumstances.
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(b) There Was No Other Authority for the Deletion of a Support Provision from the Divorce Judgment
[36] Absent authority under s. 17 of the Divorce Act, neither the common law doctrine on the non-enforceability of contractual penalties nor s. 98 of the CJA, which confirms the Superior Court’s power to relieve against penalties and forfeitures on such terms as are just, justifies the motion judge’s order. It is therefore unnecessary to consider the appellant’s alternative argument that the motion judge improperly exercised his discretion, in deleting para. 3 from the divorce judgment, by not taking the respondent’s conduct into account.
[37] The common law doctrine is one that applies to contracts, not to court orders. In Peachtree II Associates - Dallas L.P. v. 857486 Ontario Ltd. (2005), 2005 CanLII 23216 (ON CA), 76 O.R. (3d) 362 (C.A.), at para. 24, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 420, this court summarized the common law doctrine as follows:The common law penalty rule involves an assessment of the stipulated remedy clause only at the time the contract is formed. If the stipulated remedy represents a genuine attempt to estimate the damages the innocent party would suffer in the event of a breach, it will be enforced. On the other hand, again to quote Lord Dunedin from [Dunlop Pneumatic Tyre Co. Ltd. v. New Garage & Motor Co. Ltd., [1915] A.C. 79, (H.L.), at pp. 86-87], "[i]t will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach”. [Emphasis added.] [38] It is clear from this description that the doctrine is about the court’s enforcement of a stipulated remedy clause in a contract.
[39] Contractual remedies, and common law doctrines that restrict them, may be applicable to a family law agreement when the parties’ agreement has not been incorporated into a court order: Herskovits v. Herskovits (2001), 2001 CanLII 28233 (ON SC), 17 R.F.L. (5th) 339 (Ont. S.C.), at paras. 1, 30-32. But the divorce judgment is not a contract; it is a court order. . Abraham v. Gallo
In Abraham v. Gallo (Ont CA, 2022) the Court of Appeal declined to recognize a 'bare talaq' islamic divorce in Canadian law:[1] The question on this appeal is whether Canadian law recognizes an Islamic talaq divorce (a “bare talaq divorce”), performed in Ontario and subsequently registered with Egyptian governmental agencies.
[2] A bare talaq divorce arises from the husband’s unilateral and exclusive right to dissolve the marriage through a “private recital of verbal formula”: Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), at p. 1031; Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 F.C.R. 531, at para. 20; Abdulla v. Al-Kayem, 2021 ONSC 3562, at para. 20; Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 23. Courts have declined to recognize bare talaq divorces as effective; without some form of adjudicative or official oversight, they are regarded as “manifestly contrary to public policy”: Chaudhary, at p. 1032; Amin, at para. 20; Abdulla, at para. 21.
[3] The motion judge here acknowledged the invalidity of a “bare, unilateral talaq” divorce but held that since the bare talaq divorce in this case was later registered with Egyptian governmental agencies, it was a presumptively valid foreign divorce under s. 22(3) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). As a former rather than current spouse, the appellant could no longer claim spousal support and the court lacked jurisdiction to grant it: Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172, at paras. 27-30; Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, at para. 25.
[4] In my view, the motion judge erred in law in failing to distinguish between the granting and the registering of a divorce. In the circumstances of this case, registering the divorce with the Egyptian Embassy, the Civil Affairs Registry and the Ministry of Justice in Egypt amounted to no more than the evidentiary attestation of the respondent’s unilateral pronouncement of a bare talaq.
[5] While not strictly necessary to dispose of the appeal, in my view, the motion judge also erred in law by recognizing the registered bare talaq divorce as a valid divorce under s. 22(3) of the Divorce Act in accordance with conflict of laws and common law principles. The parties had no real and substantial connection to Egypt at the time of the divorce.
[6] I would therefore allow the appeal and set aside the motion judge’s order and his April 12, 2022 costs order. The appellant’s application for relief may proceed, including her claim for spousal support.
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Legal Framework
[14] Section 22 of the Divorce Act sets out the statutory criteria for recognizing foreign divorces in Canada:22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.
(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.
(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act. [15] Subsection 22(3) of the Divorce Act allows the court to recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law: Novikova v. Lyzo, 2019 ONCA 821, 31 R.F.L. (8th) 140, at para. 14. As the motion judge noted, at common law, a foreign divorce decree is presumed valid, thus placing the onus on a party disputing its validity to establish that the divorce decree was not properly obtained. A court will decline to recognize a foreign divorce decree in limited circumstances, including the following:i. the responding spouse did not receive notice of the divorce application;
ii. the foreign divorce is contrary to Canadian public policy;
iii. the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country;
iv. there is evidence of fraud going to the jurisdiction of the authority that granted the divorce;
v. there was a denial of natural justice by the authority that granted the divorce in making the divorce order. See: Novikova, at para. 15; Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362, at para. 10.
[16] As I shall explain, the motion judge erred in law in his application of s. 22 of the Divorce Act and the principles underlying the enforcement of foreign divorces.
Analysis
[17] In my view, the motion judge erred by treating the registered bare talaq divorce as presumptively valid. The parties’ divorce was not “granted”, but merely authenticated by the Egyptian governmental authorities. It therefore could not be recognized under s. 22(3) of the Divorce Act in accordance with the principles of conflicts of laws and the rules of common law. The court sets out it's reasoning in paras 18-36.
. D.M. v. The Children’s Aid Society of Ottawa
In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court noted changes to the terms 'custody' and 'access' as they are used in the Divorce Act:[16] Pursuant to amendments to the Divorce Act, which came into effect on March 1, 2021, “custody” and “access” terminology has been replaced by terms such as “decision-making responsibility” and “parenting time. Section 35.4 of the Divorce Act deems a person who had custody of a child by virtue of a custody order to have parenting time and decision-making responsibility and a spouse or former spouse who had access by virtue of a custody order to be a person to whom parenting time has been allocated. The events in the immediate case occurred before the amendments to the Divorce Act came into effect. For the purpose of these Reasons for Decision, I shall, with a few exceptions, use the historical terminology.
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