Determining The Proper Jurisdiction For Divorce
December 22, 2021
For most people, the only time they hear references to jurisdiction and the law is when police officers argue over the jurisdiction of a crime in a movie or tv show. However, questions about jurisdiction often arise before the courts, and family law is no exception. It’s not uncommon for people to get married in a country outside of Canada, but choose to live together in Canada. This could be because one, or both, of the parties to the marriage, are from outside of Canada and want to have a wedding in that country. Or, when couples decide to embark on a destination wedding, such as those held at resorts. In a recent decision from the Alberta Court of Queen’s Bench, the court was tasked with determining whether the parties’ divorce in Pakistan and its later rescission should be recognized in Canada.
Couple gets married in Pakistan but Immigration process is stalled
The parties met while the husband was living in Canada and the wife was living in Pakistan. They were married in Pakistan in the spring of 2010, after which the husband returned to Canada and began to work on sponsoring the wife’s application to move to Canada. There were problems with the immigration process, and in March 2013 the husband informed them that the sponsorship application for the wife had been denied. This didn’t close the door to immigration, but it was a significant hurdle.
The court wrote that the husband’s desire to remain married after this point is unclear. What is known is that the wife took steps to initiate a divorce herself, from Pakistan. She applied for a divorce in 2014 and in April 2015 her divorce application was approved. The husband received notice that a divorce was granted.
Incredibly, at almost the exact same time that the wife’s divorce went through, she received notification that her immigration application still had life after she received a request for medical information. The wife provided the information and applied to the courts in Pakistan to have the divorce rescinded. This request was approved, though the husband was not informed.
Wife arrives in Canada much to husband’s surprise
The husband awoke one evening with a call from the airport that his wife had arrived, and he was to pick her up. Not surprisingly he did not respond well to this news. Both he and the wife applied to the courts in hopes that whatever happened next fall in their favour. The husband wanted the order rescinding the divorce overturned, while the wife wanted the order to rescind the divorce kept in place. She is also seeking to divorce her husband in Canada.
Was divorce in Pakistan valid?
There were a number of issues the court had to determine in a precise order. First, the court had to ask whether the divorce in Pakistan was valid. If the court finds that the divorce was not valid, then it would have to work through the issues that come about in a Canadian divorce, such as spousal support, and division of property. Furthermore, the court would have to make an order based on the conduct of the parties and their allegations about one another. Instead, the court wrote it would be more practical and more focused on the legal aspects of the issues to look at whether the divorce in Pakistan should be recognized on legal grounds.
A Canadian lawyer who has experience in civil law and as a family judge in Pakistan provided the court with a report on divorce in that country. His opinion was that the Pakistani courts have ruled for the nullification of the rescinding order despite the wife’s appeal of this decision. As a result, the divorce was still in place according to the laws of Pakistan.
The court then looked at the Divorce Act, which lays out the requirements for a foreign divorce to be considered as having been properly granted. It states:
“A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.”
Satisfied that the divorce should remain in place, the court continued to consider the merits of the wife’s divorce application. In looking at the timeline of events, the court found that if the wife wanted to be divorced, she would simply have to accept the husband’s position that the divorce issued in Pakistan is valid. Instead, the facts suggested that the wife’s primary motives for marrying the husband were to assist her with her wish to emigrate to Canada. After all, it was only after she received news that her immigration application still had legs that she rescinded the divorce, and it was almost immediately after her return to Canada that she applied for a divorce here.
The court wrote that it had hoped to reserve its ruling on this matter in order for the courts in Pakistan to see out the appeal process. However, after some time there had still been no movement on things in Pakistan, leading the court to rule that the parties were already divorced, and as such, no divorce could be issued in Canada.
Call experienced Calgary Family Lawyers for questions related to separation or divorce
The family law team at HMC Lawyers understands the complexities of modern marriage and how courts approach matters related to separation and divorce. We also understand the financial and emotional concerns of people engaged in the divorce process and work to resolve issues at the negotiation table where possible. However, we are prepared to represent our clients in litigation. If you have any questions about how we can help you, please reach us online or call us at 403-269-7220