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Digest of the Week | Recognition of Foreign Decrees

Whether a foreign divorce should be recognized in Canada determined in Ontario Superior Court of Justice case

Wilson v. Kovalev

2016 CarswellOnt 197

Ontario Superior Court of Justice

Conflict of laws --- Family law — Divorce — Recognition of foreign decrees — Real and substantial connection

Parties were born and raised in Peru and they were married in Peru — Parties moved to Canada but separated six months later — Parties both became permanent residents of Canada and eventually acquired Canadian citizenship — Parties jointly decided to pursue divorce in Peru, which they obtained — On understanding that Peruvian divorce met test for recognition in Canada, wife remarried — Legal opinion wife received was based on misunderstanding that husband was residing in Peru when divorce was granted and that parties had been separated for at least one year, which was incorrect — Husband decided to remarry and he required legal opinion that Peruvian divorce would be recognized in Canada but he had difficulty obtaining opinion — Husband applied for divorce — Application dismissed — Peruvian divorce should be recognized pursuant to s. 22(3) of Divorce Act for purposes of determining marital status of parties in Canada — Wife provided expert opinion that Peruvian divorce was valid under Peruvian law — There was no evidence of any fraud having been committed that might have affected jurisdiction of notary who granted Peruvian divorce — Both parties consented to divorce in Peru, and there was no evidence that either party was denied natural justice — There was real and substantial connection between both parties and Peru, as they were both born and raised in Peru, were married in Peru, lived in Peru at time of marriage until they arrived in Canada, only lived in Canada for six months before they separated, continued to be Peruvian citizens at time of divorce, had extended family in Peru, had valid Peruvian national identification documents, and had state pensions in Peru — Real and substantial connection was not restricted to current links to country but it was connections that existed when divorce proceedings were commenced and when divorce was granted that were most relevant to analysis — Parties were more closely connected to Peru when divorce proceedings were initiated and when divorce was granted.

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