Obtaining a Foreign Divorce Opinion Letter in Ontario – Additional Implications of Foreign Divorces

In my job as a Toronto family lawyer, I have  drafted numerous foreign divorce opinion letters – some more complex than others. In my previous foreign divorce opinion letters blog, I discussed the legal tests and requirement for remarriage in Canada. This post expands on the policy reasons and additional legal consequences of (non) recognizing foreign divorces in Canada. Why is the recognition of foreign divorces in Canada relevant and important? Most people will only worry about this issue if they wish to re-marry in Canada and need to obtain a foreign divorce opinion letter from a local family lawyer. The recognition of foreign divorces in Canada, however, extends far beyond a person’s eligibility for a marriage license.

Marriage and divorce carry specific rights, obligations and entitlements. For example, Canadian courts cannot grant a Canadian divorce if Canada had already recognized a foreign divorce. A foreign and recognized divorce has the same status on the parties as a Canadian divorce. Consequently, if the divorce is not recognized, a spouse may be able to divorce in Canada and make property and support claims here. Depending on the circumstances of each party and the family law regimes in their country of origin, this could be significant.

Furthermore, a widow(er) may not be automatically entitled to pensions and other succession interests if a foreign divorce is recognized in Canada. The estate law issues, including the interpretation and validity of wills are affected by (non)recognition of foreign divorces, including the effect on financial provisions for dependents (i.e. former spouse).

In my practice as a Toronto immigration lawyer, specializing in spousal sponsorships to Canada, I have come across cases where the existence of a non-recognized foreign divorce could have undermined the attempt by a Canadian citizen or a permanent resident to sponsor his or her foreign spouse. If one of the parties remains married in the eyes of Canadian law, the parties are unable to re-marry, or if they re-marry outside Canada, their new marriage will likely be considered invalid ab initio for immigration purposes. The question of bigamy also arises in this context and should not be taken lightly. Lastly, the recognition of a foreign divorce can have significant tax implication in Canada, and it may affect the parties’ entitlement to state and welfare benefits.

The laws in this area can be quite complex and technical. If you have been divorced outside of Canada and either wish to re-marry and obtain a foreign divorce opinion letter or if you wish to ensure that your divorce is recognized for other purposes, such as immigration, you should contact a knowledgable family lawyer in Toronto.

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Foreign Divorce Opinion Letters in Ontario – Explanation from Ivan Steele, Toronto Family and Divorce Lawyer

Wedding dress is done, caterers are on a standby and the guests have RSVPed. You are ready to get married! Maybe not – if you were previously divorced outside Canada. Before dropping by the City Hall to apply for your marriage license, you will need to submit, among other documents, a letter from an Ontario lawyer that your divorce would be recognized for purposes of determining your marital status in Canada. This additional, mandatory authorization from the Ontario government must be presented before the marriage license is issued, along with a completed marriage license application signed by both you and your intended spouse.You also need to provide:

(2) The original divorce or a copy of the divorce certified by the administrative officer of the court in the granting jurisdiction, or sealed or otherwise properly authenticated by the court. When the divorce is in a language other than English or French – a certified translation, is also required.
(3) A copy of a legal opinion of an Ontario solicitor, such as myself, addressed to both of you, stating that the divorce would be recognized as valid in the Province of Ontario and providing the legal reasons for recognition, which must include reference to the relevant facts and the specific legislative basis for recognition.
(4) Statement of Sole Responsibility, which states that the validity of a foreign divorce remains the responsibility of the license applicant, and that the Ontario government assumes no responsibility if the foreign divorce turns out to be invalid.

In the foreign divorce opinion letter a lawyer will analyze the person’s unique circumstances and apply not only current legislation, but also case law. A divorce from another country is likely valid in Canada if either: (1) when you obtained your divorce you had a “real and substantial” connection to the place where you obtained the divorce; or (2) when you obtained your divorce, either you or your spouse had been ordinarily resident in the place that granted the divorce for a year beforehand. Generally speaking, if you normally lived in the place where you divorced, the chances are good that your divorce will be recognized in Canada. On the other hand, if you obtained an “express divorce” in a place that does not have residency requirements or you otherwise had nothing to do with that place, the chances are that your divorce will NOT be recognized in Canada. As an illustration, if you came to Canada from Pakistan and you live in Canada permanently, but you obtained a divorce in your original country, your divorce will likely NOT be recognized in Canada and Ontario. Divorces obtained by fraud or through coercion are also not recognized.

Foreign Divorce Opinion Letters, drafted by a Toronto or Ontario lawyer must include a careful consideration of statutory provisions contained in the Divorce Act, but they must also take into account the pre-existing case law. This means that the ground for recognition of foreign divorces in Canada are fairly wide.

The starting point, and the most relevant legislative reference is section 22 of the Divorce Act, which provides:

(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

A thorough legal analysis does not not stop here. A foreign divorce opinion letter lawyer ought to keep in mind the operation of subsection 22(3) which states that  statutory provisions do not limit or restrict any existing rule of law applicable to the recognition of foreign divorces. This means that an overly narrow and technical approach to drafting foreign divorce opinion letter may be deficient.  Often, a determination of “real and substantial connection” with a jurisdiction is highly fact specific and could lead to a recognition of a divorce under  subsection 22(3), even when the divorce would otherwise not be recognizable under subsection 22(1).

With letter in hand, you need to mail the entire package to the Office of the Registrar General. If you are getting married in a City Hall, you need to contact that particular place directly for availability. Clearly, if you and your spouse were both divorced outside of Ontario, you will need two separate foreign divorce opinion letters. Please note that not all Foreign Divorce Opinion Letters are created equal. The quality of legal analysis will differ from one lawyer to another, so choose wisely.