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Pen and paper with two rings

OVERVIEW

This case pertains to whether a Bangladeshi divorce legally valid in Canada.

BACKGROUND

The Appellant wife and the Respondent husband were married in Bangladesh in 1998. Throughout their marriage, they lived together in Bangladesh with their 3 children. In 2016, the Respondent and the children moved to Canada while the Appellant remained in Bangladesh.

In November 2016, the Respondent personally delivered a written notice of divorce to the Appellant in Bangladesh. He also couriered a copy to the Mayor of Brahmanbaria. The Bangladeshi divorce became effective in March 2017 pursuant to the Bangladesh Ordinance.

The Appellant came to Canada in February 2017. In January 2020, the Appellant filed an Application in Ontario for a divorce and corollary relief under the Divorce Act and the Family Law Act. However, the Respondent disputed this since the parties were already divorced in Bangladesh. The Motion Judge determined that the Bangladeshi divorce was legally valid in Canada. The Appellant wife appealed the motion judge’s decision.

ISSUE

The central issue in this case is whether the motion judge erred in declaring the Bangladeshi divorce legally valid in Ontario?

ANALYSIS

The Bangladesh Divorce Provisions – Section 7 of the “Bangladesh Ordinance”

Section 7(1) of the Bangladesh Ordinance states that “any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”

Section 7(2) then states that if subsection (1) isn’t satisfied, then the husband will be punished with simple imprisonment and/or a fine.

Section 7(3) states that a talaq “shall not be effective until the expiration of 90 days from the day on which notice under subsection (1) is delivered to the Chairman.

Legal Recognition of Foreign Divorces in Canada

Section 22(1) of the Divorce Act states that Canada will recognize a foreign divorce “if either former spouse was habitually resident in the country… for at least one year immediately preceding the commencement of proceedings for the divorce.” Section 22(3) of the Divorce Act upholds the common law principles applicable to the recognition of foreign divorces.

Under the common law, Canadian courts will recognize a foreign divorce in certain circumstances, including where “the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted.”

The common law also establishes that a foreign divorce will not be recognized in Canada where:

  1. There’s evidence of fraud or unfair forum-shopping in obtaining the divorce;
  2. Recognition of the foreign divorce is inconsistent with the principles of natural justice (i.e., absence of notice);
  3. The foreign divorce is against Canadian public policy; or
  4. The foreign court or other authority that granted the divorce didn’t have the jurisdiction to do so under the law of the country.

Applying the Law

Using common law principles, the ONCA determined that the parties had a “real and substantive” connection to Bangladesh, because the parties were married there, they raised their children there throughout their marriage, and the Appellant continued to live there until she received the notice of divorce. Thus, the Court found that the divorce was presumptively valid under section 22 of the Divorce Act. The onus now falls on the Appellant to prove that an exception applies.

To rebut the presumption above, the Appellant argued that it would be contrary to the principles of natural justice and Canadian public policy to recognize the Bangladesh divorce since it permits a husband to unilaterally divorce his wife.

However, the ONCA determined that the Bangladesh Ordinance does not go against Canadian public policy or the principles of natural justice. This is because the Bangladesh Ordinance (1) has a notice requirement; (2) grants the wife the opportunity to respond and participate in the legal proceeding through the 90-day waiting period and the notice; and (3) establishes official oversight in the granting of the divorce (through the notice to the Chairman along with the financial and penal sanctions that may be imposed for failure to provide notice).

Since the Bangladesh Ordinance is valid in Canada, the remaining analysis is whether the parties’ divorce was valid under the Bangladesh Ordinance itself. The Court found that all the requirements in the Bangladesh Ordinance were met. In this case, the court determined that the Mayor of Brahmanbaria is the equivalent of a Chairman, so the Respondent met the notice requirement by providing written notice to both the Mayor and the Appellant. Further, the Appellant had the opportunity to participate in the divorce proceedings. Thus, the Bangladesh divorce complied with Bangladesh Ordinance and the Bangladesh divorce is legally valid in Canada.

CONCLUSION

The Appellant wife’s appeal is dismissed. The Bangladesh divorce is legally valid in Canada. Since the parties are already divorced, the Appellant wife cannot pursue spousal support in Ontario. Further, since more than 2 years passed since the Bangladeshi divorce, the Appellant is out of time to make a claim for equalization under the Family Law Act.

Categories: Foreign Divorce, Jurisdiction