By Rebecca Winninger, Senior Associate Lawyer,
Lam Family Law*

In Ontario, a person cannot claim spousal support if they were validly divorced in another country. There is no jurisdiction to claim support under the federal Divorce Act unless a party is seeking a divorce in Canada, or has already obtained a divorce in Canada. There is no jurisdiction under the provincial Family Law Act (“FLA”), because the definition of a spouse for support purposes does not include a “former spouse”: Okmyansky v. Okmyansky, 2007 ONCA 427 (CanLII), at paras 41-42.

This situation creates a strong incentive to litigate the validity of foreign divorces. In the last year and a half alone, the Court of Appeal for Ontario (“ONCA”) has decided cases on:

Arguably, the ONCA’s most precedential decision in recent months is Vyazemskaya v. Safin, 2024 ONCA 156 (CanLII) (“Vyazemskaya”), which introduced a new defence to the recognition of a foreign divorce.

First, some background on the recognition of foreign divorces is necessary. Under s. 22 of the Divorce Act, 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: Vyazemskaya, at para 21. The Supreme Court of Canada (“SCC”) had previously recognized three exceptions: fraud, public policy, and lack of natural justice: Vyazemskaya, at para 26, citing Beals v Saldanha, 2003 SCC 72 (CanLII) (“Beals”), at paras 219-245.

In Vyazemskaya, the trial judge held that the public policy exception applied, because the husband had unfairly “forum shopped” to avoid spousal support obligations in Ontario. In other words, he specifically sought a divorce in Russia to avoid paying spousal support to the wife: Vyazemskaya, at paras 13-14.

On appeal, the husband argued that the trial judge erred in applying the public policy exception, because that exception targets only “repugnant laws” of the foreign country, not “repugnant facts”, such as the husband’s motivation in seeking the Russian divorce: Vyazemskaya, at para 17, citing Beals.

The ONCA acknowledged that international comity requires a “narrow public policy basis for rejecting foreign judgments”: Vyazemskaya, at para 25. However, the ONCA picked up on a passage from Beals where the SCC referred to what the ONCA considered to be “a fourth potential defence” of “unfair forum-shopping tactics”. The SCC indicated that a foreign judgment “should be entitled to full recognition and enforcement” provided it was “not prompted by unfair forum-shopping tactics on the plaintiff’s part”: Vyazemskaya, at para 30, citing Beals, at para 191 [underlining added].

Based on this passage, the ONCA held that Beals “leaves open” unfair forum-shopping “as a possible exception.” Like the other defences of fraud and natural justice, unfair forum-shopping is analytically distinct from the public policy defence. There is therefore no inconsistency in recognizing a defence which, unlike the public policy defence, is not based on morally repugnant foreign laws. While the public policy defence is aimed at “foreign laws that ‘violate our principles of morality’”, the unfair forum-shopping defence is about “decisions taken to avoid the application of domestic laws”: Vyazemskaya, at paras 31 & 34-35.

Given that Beals “leaves open” the forum-shopping defence, and there was evidence to support the judge’s conclusion that the husband obtained the divorce in Russia to avoid paying spousal support, the ONCA upheld the decision: Vyazemskaya, at paras 38-40.

The ONCA’s language around recognizing the new defence was oddly tentative. Even in a concluding paragraph, the ONCA stated it was “sufficient to conclude that…Beals leaves open ‘unfair forum-shopping tactics’ as a possible exception to the recognition of foreign divorces”: Vyazemskaya, at para 37. However, in upholding the trial judge’s decision, the ONCA appeared to endorse the defence, and it is curious that the court did not wish to come out and say definitively that it was recognizing the new defence.

The analysis was also relatively brief. The ONCA explained that the defence was consistent with the value placed on partnership and equality in the preamble to the FLA, and referred to other appellate cases where forum-shopping concerns impacted the analysis: Vyazemskaya, at paras 32-33, citing various cases.

However, I think there is more to be said in favour of the new defence. First, it fits well with the principle of international comity. The courts do not wish to be seen as criticizing the justice systems of other states. The unfair forum-shopping defence allows them to focus instead on the conduct of and motivations of the party who obtained the divorce.

Second, the defence recognizes the underlying motivation of much of this litigation. As discussed above, these cases are usually litigated because one party wants to claim spousal support, and cannot do so due to the foreign divorce. The new defence looks at whether escaping spousal support is what motivated the foreign divorce in the first place. This is a more honest way to approach the issue, in my opinion, than trying to shoehorn the facts to fit the other three defences.

However, the new defence arguably does not fit well with the idea that foreign judgments will be recognized in Canada save in “rare circumstances”: Akyuz v. Sahin, 2023 ONSC 1024 (CanLII), at para 14.

Read broadly, the unfair forum-shopping defence may extend to every case where the party contesting the divorce proves on a balance of probabilities that the party who obtained the divorce did so to avoid support obligations in Ontario. The ONCA cautioned that “[w]hile forum-shopping will not always violate our principles of morality, ‘unfair forum-shopping tactics’ most certainly will”: Vyazemskaya, at para 31. The forum shopping was unfair in the circumstances of Vyazemskaya simply because the husband obtained the divorce in Russia to avoid paying spousal support under Ontario law. This seems like a common scenario (although it may not always be easy to prove a party’s intention).

Litigation on this subject will likely remain common – and not rare – unless the FLA is amended to allow a “former spouse” to claim spousal support, as the ONCA suggested in Sonia v. Ratan, 2024 ONCA 152 (CanLII), at para 94. The ONCA also indicated it might be willing to revisit its own jurisprudence that there is no jurisdiction to order spousal support in Ontario in the face of a valid foreign divorce.

Note that there is also currently a Charter challenge alleging that s. 4 of the Divorce Act (jurisdiction in corollary relief proceedings) and s. 29 of the FLA (the definition of “spouse”) violate s. 15 of the Charter: Mehralian v. Dunmore, Toronto, FS-21-24032 (ONSC).

*with thanks to Vanessa Lam for her suggestions and edits.