In a case called Vyazemskaya v. Safin the Ontario court had to consider how to deal with a Toronto-based husband who strategically applied for a Russian divorce within days of separating from his wife – all because he wanted to avoid his legal commitments to her under Canadian law. Now that his Russian divorce was final, the court had to consider whether to refuse to recognize it as valid, and instead continue with divorce proceedings under the customary laws here at home.
The spouses were citizens of Russia who married in that country but then immigrated to Canada. A mere three days after moving out of the matrimonial home, the husband applied for a divorce in Russia. The wife naturally objected, stating that their divorce should be dealt with in Ontario, where they both still lived. She filed a formal objection with the Russian court, in which she explained her legal predicament:
While I was trying to peacefully negotiate with the [husband] and sign an agreement of separation in Canada, with adequate financial support from the [appellant], due to the fact that, through the fault of the [appellant], I now have no job and no opportunity to study, since I depend on the [husband’s] income, the [husband] decided to go to the court of Russia in order to avoid a proper financial support provided for by Canadian law.
The Russian court nonetheless granted the divorce only a few months after the husband filed. The matter then came before the Ontario court, where the wife’s complained that her legal interests had been greatly compromised by the husband’s tactics. As the court explained:
[2] … The wife’s uncontested evidence before this court was that under Russian law, spousal support can only be ordered in certain limited circumstances, such as when the spouse seeking maintenance is disabled, past retirement age, pregnant, or the primary caregiver for a child under the age of three. At the time the divorce was granted the respondent met none of these conditions, and therefore spousal support was not available under Russian law.
With this in mind, the wife accused the husband of pre-emptively obtaining a speedy divorce in Russia simply to avoid paying her the spousal support she is owed under Canadian law. More to the point, if the Canadian court saw fit to recognize that Russian divorce, then procedurally the wife was precluded from applying for spousal support under the Divorce Act here. That’s because a local court’s jurisdiction was only engaged if there was a Canadian divorce in-hand.
At the parties’ trial, the Ontario court sided with the wife; it refused to recognize the Russian divorce as valid. The Court of Appeal later confirmed that ruling.
Legally, the Russian divorce was presumed valid, unless the wife could prove that it had not been properly obtained. The law recognized several exceptions: These included a lack of notice to the wife, a breach of Canadian public policy, fraud, and a few others.
Here, the Court found the husband had engaged in “unfair forum-shopping tactics” to get a quick divorce in Russia. He knew the wife would get no spousal support under that country’s laws. There was also ample evidence, including emails exchanged in the days after separation, to bolster the conclusion that he deliberately filed in Russia to avoid his support obligations in Canada.
With this bad-faith motive in mind, it was appropriate to disregard the Russian divorce entirely, especially since Canadian family law places a strong emphasis on the values of partnership and equality. It was true there is a general presumption that a foreign divorce is valid, but this scenario fell within one of the potential exceptions: It involved a party making decisions designed to “avoid the application of domestic laws”. The Court added: “While forum-shopping will not always violate our principles of morality, ‘unfair forum-shopping tactics’ most certainly will.”
The husband’s appeal was accordingly dismissed.
For the full text of the decision , see:
Vyazemskaya v. Safin, 2024 ONCA 156 <https://canlii.ca/t/k34d9>
