Should Long-Ago Syrian Divorce Be Recognized in Canada?
In a case called Al Sabki v. Al Jajeh, the court pondered whether a divorce decree purportedly obtained by the husband a decade earlier in Syria should be recognized in Canada. If so, the wife would be precluded from claiming spousal support in this country.
The couple had both grown up in Syria, and met while they were both practicing medicine in the same hospital there. They married in 1988, and the wife stopped practicing within a year so that they could start a family.
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They immigrated to Canada, but the husband was unable to qualify to practice medicine here. The family relocated to a series of countries where the husband had work opportunities, but the wife did not want to move to the last of them, which was Singapore. The couple agreed that she and their children would return to Canada instead, without him. This was in 2006. Shortly after the husband advised that he wanted to separate and would not be re-joining her and the children in Canada.
Then, in 2008 the husband advised that he wanted to divorce her through the Syrian courts. The wife effectively did not have a chance to participate in that process, and a few months later the husband sent her a Syrian divorce decree. The husband remarried in Singapore and continued to live there.
From the time of separation the husband had been sending the wife $4,500 in monthly support, but reduced the amount gradually as their now-adult sons completed their post-secondary education. She received the last payment in 2017. By this time, the husband was earning $600,000 as a physician in Singapore, while the wife earned minimum wage in Canada working part time at a drug store.
The wife applied in Ontario for spousal support. The husband opposed it on the basis that the Ontario court had no jurisdiction, pointing to the fact that he had obtained the Syrian divorce a decade earlier. The wife claimed the divorce was invalid, should not be recognized under Canadian law, and had been obtained solely to circumvent the husband’s spousal support obligations.
The court agreed with the wife. Both then and now, the husband lived in Singapore and the wife resided in Canada. The Syrian court did not have the jurisdiction to grant a divorce between these parties in 2008 for numerous reasons. Neither of them had lived in that country since 1989 when they got married, and neither had a real and substantial connection to it now. Plus, even under Syrian law, the divorce was not properly obtained in terms of the procedure followed. Nor had the wife submitted to the Syrian court’s jurisdiction by participating in the process.
According to the wife’s international law expert, the proper jurisdiction for the husband to obtain a divorce should have been Canada. Although in some prescribed circumstances a Canadian court will recognize a foreign divorce, the required elements were not present in this case.
Finally, the court also concluded that even if it was wrong about the validity of the Syrian divorce on this basis, it should not be recognized for other reasons: a lack of procedural fairness and natural justice. The Syrian legal process did not give the wife the opportunity to contest the divorce; her only recourse was to try to convince the husband to reconcile. She had also not been given adequate advance notice that her husband intended to apply. As the court said:
I am of the view that a process which leaves one party with absolutely no voice and no ability to defend oneself
with regards to his or her own marital status, which in turn leads to that party losing significant legal rights in his or her country of residence, seriously contravenes the principles of natural justice upon which our judicial system is built.
In the end, the court declared that the Syrian divorce was not recognized in Ontario, and allowed the wife’s application for spousal support to proceed.
For the full text of the decision, see:
Al Sabki v. Al Jajeh, 2019 ONSC 6394
