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Family - Foreign Divorce. Vyazemskaya v. Safin
In Vyazemskaya v. Safin (Ont CA, 2024) the Court of Appeal considered the recognition of a foreign divorce, here where the husband obtained a divorce in Russia (where they were married, they immigrated to Ontario and were permanent Canadian residents) and the wife arguing that the venue should be Ontario, where spousal support was available:[3] As discussed later in these reasons, if the Russian divorce order is recognized in Canada, the respondent would not be able to seek spousal support under the Divorce Act, R.S.C., 1985, c. 3, (2nd Supp.): D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 91-93; Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577, at para. 29; Virani v. Virani, 2006 BCCA 341, 270 D.L.R. (4th) 532, at para. 12; L.G.V. v. L.A.P., 2016 NBCA 23, 449 N.B.R. (2d) 140, at para. 23; Leonard v. Booker, 2007 NBCA 71, 286 D.L.R. (4th) 451, at para. 32; and Armoyan v. Armoyan, 2013 NSCA 99, 334 N.S.R. (2d) 204, at para. 247.
[4] Nor could she seek spousal support under the Family Law Act, R.S.O. 1990, c. F.3, given this court’s interpretation of its support provisions and determination that “former spouses” cannot claim support: Rothgiesser, at para. 26; Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, at para. 42; and Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172, at para. 3.
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[8] The trial judge held that, while the parties had a real and substantial connection to Russia, the Russian divorce order “should not be recognized in Ontario”. She referenced s. 22 of the Divorce Act, highlighting subsection (3) in particular, and determined that a divorce which is granted in a foreign jurisdiction is presumed to be valid. The trial judge then self-instructed that “the onus rests on the [respondent] to convince the court that the divorce ought to be set aside”. She observed that “if the Russian Divorce order is recognized and enforceable in Ontario, the [respondent] cannot seek spousal support in Ontario”.
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[11] The trial judge did not address whether the respondent was entitled to spousal support under the Family Law Act, but this issue was not raised by the parties. In any event, this court has held that one cannot seek support under that statute after a foreign divorce has been granted because its support provisions do not explicitly refer to “former spouses”: see as noted earlier, Rothgiesser, at para. 26; Okmyansky, at para. 42; and Cheng, at paras. 27-30.
[12] The trial judge reviewed the grounds on which an Ontario court will decline to recognize a foreign divorce, citing para. 10 of the Superior Court’s decision in Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362:At common law, there are presumptions in favour of the validity of a foreign divorce decree. Accordingly, there is an onus on a party alleging that the divorce is invalid to adduce some evidence to establish that the divorce was not properly obtained [citations omitted]. The grounds upon which the court will decline to recognize a foreign divorce are very limited, and include the following:1. The Respondent did not receive notice of the Divorce Application;
2. The foreign divorce is contrary to Canadian public policy;
3. The foreign court or other authority that granted the divorce (“the granting authority”) did not have the jurisdiction to do so under the law of the foreign country;
4. Where there is evidence of fraud going to the jurisdiction of the granting authority; or
5. There was a denial of natural justice by the granting authority in making the divorce order. [13] The trial judge made several findings of fact: 1) the appellant knew that the respondent intended to start divorce proceedings in Ontario if they were unable to resolve the issues between them; 2) the appellant knew that if the proceedings were brought in Ontario, he would have to pay the respondent spousal support; and 3) the appellant sought and obtained the divorce in Russia pre-emptively so that the respondent could not obtain a divorce and spousal support in Ontario.
[14] In the end, the trial judge held that the public policy exception applied because the appellant had unfairly “forum shopped”. She found that, while the appellant might have had other reasons for pursuing a divorce in Russia, the “driving factor was avoiding court imposed spousal support obligations under Ontario law” and that “[t]his case involves exactly the sort of ‘moral’ and ‘fundamental’ values that underlie the public policy [defence]”. According to the trial judge, the Russian divorce order, “which was obtained less than two months after separation, [gave the appellant] a back-door with which to escape his legal responsibilities, and runs counter to the four spousal support objectives set out in s. 15.2(6) of the Divorce Act.”
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[17] On appeal, the appellant argues that the trial judge improperly expanded the public policy exception. Specifically, he asserts that the trial judge erred by declining to recognize the Russian divorce because of what she viewed as “repugnant facts”, when it was only open to her to do so if she found the applicable Russian laws to be “repugnant”. He relies on the Supreme Court’s decision in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, which affirmed that the public policy defence is “directed at the concept of repugnant laws and not repugnant facts”: at para. 71.
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(1) Section 22 of the Divorce Act and the “real and substantial connection” test
[19] At common law, domicile alone was the traditional test for recognition of a foreign divorce. Following the House of Lords in Indyka v. Indyka, [1969] 1 A.C. 33 (U.K.H.L.), Canadian courts added “real and substantial connection” as a basis for recognition: Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 S.C.R. 218, at 225-27[1]; Holub v. Holub (1976), 1976 CanLII 1101 (MB CA), 71 D.L.R. (3d) 698 (Man. C.A.) at 699-701; and Orabi v. Qaoud, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 14.
[20] Section 22 of the Divorce Act provides that: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. [21] This provision has been interpreted consistently such that a foreign divorce will be recognized in Canada where there is a real and substantial connection between one of the parties and the granting jurisdiction, unless an exception applies: R.S. v. P.R., 2019 SCC 49, [2019] 3 S.C.R. 643, at para. 181, per Brown J. (dissenting, but not on this point).
[22] Accordingly, the trial judge did not err when she concluded that 1) a real and substantial connection is sufficient to render a foreign divorce presumptively valid, 2) this test was met on account of the parties being Russian citizens, and 3) the onus was on the respondent – as the party alleging that the divorce was invalid – to adduce evidence demonstrating that the divorce was not properly obtained: Wilson, at para. 10; Powell, at 225-26.
(2) Unfair forum-shopping tactics is an exception to the recognition of foreign divorces
[23] As discussed earlier, the Superior Court in Wilson, at para. 10, set out the exceptions that would, if established, lead a court to not recognize a foreign divorce.
[24] In this case, the trial judge declined to recognize the Russian divorce based on the public policy exception. This exception was addressed by the Supreme Court of Canada in Beals. Although Beals was a commercial case that concerned the enforceability of foreign damages awards in Canada, its principles regarding the recognition of foreign judgments apply more generally. At the same time, as I will discuss below, it is possible that some adaptation of the principles may be appropriate when moving from a commercial to family law context.
[25] In Beals, the Supreme Court held, at para. 71, that “the public policy defence turns on whether the foreign law is contrary to our view of basic morality”. It held further, at para. 76, that an argument based on public policy should not succeed “for the sole reason that … [the] foreign jurisdiction would not yield [the same result as Ontario or Canada]”. The Court made clear that this exception has a “narrow application” and should not “be used lightly”: Beals, at para. 75. The Court wrote further, at para. 28, that “international comity and the prevalence of international cross-border transactions and movement call for a modernization of private international law”, emphasizing a narrow public policy basis for rejecting foreign judgments.
[26] The Beals Court then, at paras. 219-45, reformulated three “nominate” defences to the recognition of foreign judgments: 1) public policy, 2) fraud, and 3) natural justice. As it relates to the nominate defence of public policy, Beals, at para. 221, directs that such a defence should be based not on repugnant facts or outcomes, but on whether the law in the foreign jurisdiction is repugnant:[T]he better approach is to continue to reserve the public policy defence for cases where the objection is to the law of the foreign forum, rather than the way the law was applied, or the size of the award per se. In other words, this defence should continue to be, as the trial judge put it, “directed at the concept of repugnant laws, not repugnant facts”. [Emphasis in original.] [27] The appellant’s argument emphasizes Beals’ focus on repugnant laws rather than the outcome of their application in a specific case. In other words, even if the appellant went to Russia for a divorce with the specific intention of avoiding spousal support – which he denies – and even if this decision led to what one might consider a repugnant outcome, the appellant argues that Beals requires this court to overlook these circumstances. As the appellant puts it, even if he were attempting to skirt his spousal support obligations, “[t]hat is, at most, a ‘repugnant fact’ not a ‘repugnant law’”. The determinative question, asserts the appellant, and the one that the trial judge should have answered, per Beals, is whether the Russian law governing divorce and spousal support is repugnant. In the appellant’s view, his conduct and intentions are irrelevant.
[28] The appellant argues further that the trial judge should have, but did not, conduct a comprehensive comparative analysis of Russian law, including an assessment of the law that governs child support and Russia’s broader social support system. He says such an analysis would necessarily require expert evidence; if done properly, that analysis would reveal that the “differences in Russian and Canadian laws are not significant enough to condemn Russian law and invoke [a] public policy defence to set aside [the] Russian court order”. He submits further that “Russian law is not different from Canadian [law] ‘to a shocking extent’ in terms of [the] amount of support”. The appellant’s position is essentially that Russian law is fundamentally the same as Canadian law and that, in any event, expert evidence would be required to prove otherwise.
[29] I disagree. The appellant’s position overlooks the existence of other “nominate” defences established in Beals to the recognition of foreign divorces, including fraud and natural justice. While Beals acknowledges that these defences could be subsumed within the general concept of public policy, it also emphasizes, at para. 221, the importance of keeping them analytically distinct:Public policy is potentially an expansive enough concept to subsume the other two defences [of fraud and natural justice]; it is, of course, contrary to public policy in a broad sense to enforce a judgment that was fraudulently or unfairly obtained. But it is useful to maintain an analytical distinction between the three defences [of fraud, natural justice, and public policy]. Furthermore, the defence of public policy has long been associated with condemnation of the foreign jurisdiction’s law. To extend it to cover situations where there is nothing objectionable about the foreign law but, rather, a defect in the way the law was applied might send the wrong message, one that conflicts with the norms of international cooperation and respect for other legal systems underlying the doctrine of comity. [30] Beals also refers to what I consider to be a fourth potential defence – one that, like “fraud” and “natural justice”, depends on the facts of a particular case, though only in passing. The Court, at para. 191, refers to the absence of “unfair forum-shopping tactics” as a condition for recognizing a judgment from another province:It follows that the assumption of jurisdiction by a sister province, provided that it does not exceed the province’s constitutional authority over property, civil rights and the administration of justice in the province and is not prompted by unfair forum-shopping tactics on the plaintiff’s part, should be entitled to full recognition and enforcement throughout Canada. A connection to the subject matter of the action should usually suffice to meet the “real and substantial connection” test. [31] In my view, Beals leaves open “unfair forum-shopping tactics” as a possible exception. Therefore, like “fraud” and “natural justice”, “unfair forum-shopping tactics” is a category that is analytically distinct from the public policy defence. Beals thus supports the proposition that the exceptions inquiry is not limited to foreign laws that “violate our principles of morality”, but also extends to decisions taken to avoid the application of domestic laws. While forum-shopping will not always violate our principles of morality, “unfair forum-shopping tactics” most certainly will. And, if such unfair tactics are relevant to warrant consideration in a purely commercial context, like in Beals, then they must be relevant in a family law context where such a defence would be particularly persuasive.
[32] Under Canadian family law, strong emphasis is placed on the values of partnership and equality, which is reflected in the preamble to the Ontario Family Law Act:Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children. [33] These guiding principles are reinforced by several appellate-level decisions across Canada, which support the proposition that a foreign divorce should not be recognized if it has been obtained through unfair forum-shopping tactics or for other improper reasons: Abraham v. Gallo, 2022 ONCA 874, 476 D.L.R. (4th) 592, at paras. 33-34; Orabi, at para. 17; R.N.S. v. K.S., 2013 BCCA 406, at para. 29.
[34] I have also considered Yan v. Xu, 2023 ONSC 1288, in which Diamond J. criticizes the trial judge’s approach in this case on the basis that it conflicts with the principles established in Beals:Respectfully, I do not agree with the rationale in Vyazemskaya, and had it been raised and argued during the hearing of the motions I would not have followed that rationale. The finding of the Russian divorce judgment being void for public policy reasons in Vyazemskaya was based upon admittedly repugnant facts, but not a determination of the alleged repugnancy of the law. This runs contrary to the Supreme Court of Canada’s holdings in Beals and the jurisprudence developed thereunder over the last twenty years. [35] In my view, this criticism fails to recognize that, as I have already discussed, unfair forum-shopping tactics, like “fraud”’ and “natural justice”, are “analytically distinct” from the “public policy” defence discussed in detail in Beals. This is important because, as I read Beals, the repugnant law-based nominate “public policy” defence is not, as Diamond J. seems to suggest, the only available defence. If, as I suggest, “fraud”, “natural justice” and “unfair forum shopping” are all distinct from the morally-repugnant-law-based “public policy” defence, then there is no inconsistency between refusing to recognize a foreign order in the face of one of these defences given the discussion of “public policy” in Beals.
[36] There are also trial court decisions that have refused to recognize foreign divorces specifically on the basis that the foreign jurisdiction provides either no, or in the view of the court wholly inadequate, spousal support. However, these are not cases of unfair-forum-shopping; they are instances where the court rejected a foreign country’s spousal support laws as contrary to public policy. In Zhang v. Lin, 2010 ABQB 420, 500 A.R. 357 and Marzara v. Marzara, 2011 BCSC 408, the courts refused to recognize Texas and Iranian divorces, respectively. These cases suggest that the public policy defence in Beals might extend to foreign laws that provide for no, or wholly inadequate, spousal support following marriage breakdown. A law that leaves a vulnerable party entirely without compensation for the financial consequences of marriage breakdown might be contrary to Canadian public policy. However, this issue was not squarely raised by either party and need not be decided for the purpose of this case.
[37] For present purposes, it is sufficient to conclude that 1) Beals leaves open “unfair forum-shopping tactics” as a possible exception to the recognition of foreign divorces, and 2) this exception should be kept analytically distinct from the public policy defence.
(3) The trial judge did not err in denying recognition of the Russian divorce order
[38] The trial judge’s specific factual finding that the appellant engaged in unfair forum-shopping tactics distinguishes this case from Yan, Zhang, and Marzara. And, since Beals leaves open the possibility of not recognizing a foreign judgment in the face of unfair forum-shopping tactics, the only question for this court on appeal is whether it was open to the trial judge to make that finding.
[39] The trial judge, at para. 43 of her reasons, writes that “[i]n my view, the email correspondence between the parties supports [the respondent’s] position that [the appellant] sought and obtained the divorce in Russia pre-emptively so that she could not obtain a divorce and spousal support in Ontario.” Below are excerpts from emails that the respondent delivered to the appellant before she became aware of his efforts to obtain a divorce in Russia [2]:October 30, 2019 – I would have gone to a lawyer today and they would have squeeze you out for at least 2500 for MY MAINTENANCE and for the maintenance of the child…
November 5, 2019 – If you don’t want to sign the agreement, there is nothing left for me but the court, I will be forced to go to court, I need an agreement to confirm my status and you know this very well. No agreement – I’m going to court, you leave me no choice…
November 13, 2019 – If you do not go and sign the agreement, I will be forced to get a divorce through a Canadian court, with the help of a lawyer ... [40] On November 5, 2019 the appellant emailed the respondent advising that her financial offer was not acceptable. As noted earlier, the appellant moved out of the home on November 17, and filed for divorce in Russia three days later on November 20. The Russian divorce was granted on January 13, 2020. In light of these communications, the trial judge reasonably concluded that “[o]n balance, I am satisfied that [the appellant] pre-emptively sought and obtained the divorce in Russia to avoid paying spousal support under Ontario law to [the respondent].” The trial judge’s findings of unfair forum-shopping tactics, and generally about the appellant’s improper motive to seek a divorce elsewhere, were a legitimate basis for refusing to recognize this divorce, in light of Beals and the appellate decisions from Ontario, Nova Scotia, and British Columbia in Abraham, Orabi, and R.N.S., respectively.
[41] The appellant has not demonstrated any palpable and overriding error in the trial judge’s findings of fact or with her ultimate conclusion that the Russian divorce should not be recognized. There is accordingly no basis for this court to interfere.
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