In this case, the question was whether the wife should pay almost $150,000 as an equalization payment to the husband. The catch was that the husband’s entitlement to that payment was contingent on whether he was the wife’s “spouse”, which in turn hinged on whether his prior divorce to another woman in another country was real and legally valid.
As background: The couple met through a personal newspaper ad in 1997. The husband had immigrated to Canada a few years prior, and in doing so left behind a wife and child in Pakistan. The wife had been living in Canada since 1971 and was divorced. They were both Muslim, and in that faith the husband was allowed to have more than one wife, so they married in Canada in 1998, with the wife having full knowledge that the husband had another family in Pakistan. After the wedding they lived together in Canada and held themselves out as a married couple.
They then decided to get married under Ontario law as well. To this end, in around 2002 the husband made efforts to get a divorce from his first wife in Pakistan, and obtained what he put forward as a Divorce Certificate that had been issued in that country. Relying on that document, and having obtained a legal opinion that it was valid, they applied for an Ontario marriage license and were married in Toronto in 2003.
In their subsequent divorce action, the wife claimed that the marriage was a set up as part of the husband’s premeditated plan to dupe her out of her money and assets. She claimed the marriage had been entered into fraudulently, that she had been pressured into it, and that the husband was not legally entitled to marry in Canada because he was never legally divorced from the first wife in Pakistan. In particular, she claimed that the
Divorce Certificate was a fake and a forgery. As the court explained:
[The wife] urged the court to find that the applicant premeditated a plan whereby he would marry the respondent and after sufficient time had elapsed leave her and take half of her assets. She stated that after five years of common law he realized that he could not make a claim so he pressured her into marriage and he married her in bad faith to enrich himself. [The wife] alleges that as part of this plan he prevented her from making a prenuptial agreement by vowing on the Koran, while they were on their pilgrimage to Mecca, that he would never make a claim against her money or seek an equalization. Although not specifically pled, it appears that the [wife] was asking the court to take this plot into account as the basis for finding that an equalization of matrimonial property was unconscionable.
The husband refuted the existence of a plot; he claimed the marriage had been in good faith and that the Divorce Certificate for this first marriage was valid, which meant that he was legally married to the second wife. Under Ontario law, this meant that he was a “spouse” and was entitled to an equalization of net family property under the Family Law Act.
The court scrutinized the Divorce Certificate; to determine its validity it relied primarily (and ironically) on evidence from the wife herself. It concluded that the document as not forged; this meant that the subsequent Marriage Certificate was also validly obtained. Furthermore, there was nothing in the circumstances that would make the $150,000 equalization payment to the husband unconscionable, in light of the other circumstances of the parties’ marriage and assets at the time of their union and later separation.
For the full text of the decision, see:
Janjua v. Khan, 2013 ONSC 44 (CanLII) http://canlii.ca/t/fvhts
Motion for leave to file fresh evidence dismissed: 2014 ONCA 5 http://canlii.ca/t/g2gfk
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