COURT OF APPEAL FOR ONTARIO
CITATION: Sonia v. Ratan, 2024 ONCA 152
DATE: 20240228
DOCKET: COA-22-CV-0447
Simmons, Paciocco and Thorburn JJ.A.
BETWEEN
Farzana Ratan Sonia
Applicant (Appellant)
and
Abdul Hannan Ratan
Respondent
Obaidul Hoque and Zaheed Moral, for the appellant
Syed Kabir and Manish Sidana, for the respondent
Heard: November 23, 2023
On appeal from the order of Justice Patrick J. Monahan of the Superior Court of Justice dated December 2, 2022, with reasons reported at 2022 ONSC 6340 and from the costs order dated February 27, 2023, with reasons reported at 2023 ONSC 982.
Thorburn J.A.:
A. OVERVIEW
[1] The central issue on this appeal is whether the motion judge erred in law by recognizing and enforcing a Bangladesh talaq divorce (“the Bangladesh divorce”) that became effective on March 17, 2017. The consequence of recognizing the Bangladesh divorce was that the appellant, Farzana Ratan Sonia (“Sonia”), could no longer claim spousal support under either the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) or the Family Law Act, R.S.O. 1990, c. F.3. Further, because more than two years had passed since the divorce, she was also out of time to claim an equalization of net family property under the Family Law Act.
[2] Prior to the decision giving rise to these issues, two consent orders dated March 30 and 31, 2021 (the “Consent Orders”) were obtained, on the basis that the parties were not divorced. However, on December 2, 2022, the motion judge issued a final order setting those Consent Orders aside, and recognizing the Bangladesh divorce under Canadian law. He therefore dismissed Sonia’s claim for spousal support and equalization.
[3] The motion judge set aside the Consent Orders after previously unavailable evidence was adduced that Sonia had remarried in Bangladesh in 2020 (the “subsequent marriage”). Based on this new evidence, the motion judge found that the respondent’s, Abdul Hannan Ratan’s (“Ratan”), consent to the prior Consent Orders was vitiated by fraud and that the court would not have made those orders if it had knowledge of the subsequent marriage.
[4] The motion judge held that the Bangladesh divorce satisfied the common law grounds for the recognition of a foreign divorce and was therefore presumed valid in Canada in accordance with s. 22(3) of the Divorce Act. He held that there was a real and substantial connection between the parties and Bangladesh as (i) the parties were married and had children in Bangladesh, (ii) they were ordinarily resident in Bangladesh at the time of the divorce, and (iii) Sonia herself initiated divorce proceedings in Bangladesh in 2016, which she withdrew later that year.
[5] The motion judge also found that none of the grounds for refusing to recognize a foreign divorce were met. He held that there was no evidence of fraud or unfair forum-shopping on the part of Ratan in obtaining the Bangladesh divorce, and he concluded that recognition of the Bangladesh divorce was consistent with the principles of natural justice and Canadian public policy, as Sonia received notice of the divorce. He also noted that Sonia herself relied on the Bangladesh divorce to remarry in Bangladesh on May 24, 2020.
[6] As a result of recognizing the Bangladesh divorce, Sonia could not proceed with her claims for spousal support under either the Family Law Act or the Divorce Act. She was also out of time to make her equalization claim, as the limitation period in s. 7(3) of the Family Law Act had expired. In addition, because he found that Sonia commenced this proceeding knowing that she and Ratan were divorced and also repeatedly advanced meritless allegations of fraud, the motion judge ordered Sonia to pay costs to Ratan on a full recovery basis in the amount of $298,292.34.
[7] Sonia claims the motion judge erred in recognizing the Bangladesh divorce on public policy grounds as she claims it was a “bare” talaq divorce in which she had no participation, there was no adjudicative or official oversight, and the divorce was not “granted” by a competent authority in accordance with the requirements in s. 22 of the Divorce Act. She claims that the motion judge’s decision is inconsistent with this court’s later decision in Abraham v. Gallo, 2022 ONCA 874, 476 D.L.R. (4th) 592, where a “bare” talaq divorce was held to be unenforceable as being contrary to Canadian public policy. She also claims that the motion judge erred in finding that she acted in bad faith in commencing these proceedings and that he wrongly considered her bad faith at the public policy stage of the enforcement analysis.
[8] Sonia also claims that the motion judge erred in setting aside the Consent Orders. She claims that: (i) the motion judge wrongly relied on the validity of the “bare” talaq divorce; (ii) there was no fraud vitiating the consent of Ratan, as he knew about the subsequent marriage when he agreed to the Consent Orders; and (iii) the motion judge failed to consider the validity of the subsequent marriage before setting aside the Consent Orders.
[9] In an amended notice of appeal, Sonia sought leave to appeal the motion judge’s costs award.
[10] For the reasons that follow, I would dismiss this appeal. The motion judge did not err in setting aside the Consent Orders. Furthermore, the Bangladesh divorce is not a “bare” talaq divorce as in Abraham. It is a foreign divorce pursuant to the laws of Bangladesh, to which Sonia had a real and substantial connection, and should be recognized in Canada pursuant to s. 22 of the Divorce Act.
[11] I arrive at this conclusion recognizing however, as did the motion judge, that the effect of recognition of the Bangladesh divorce in Canada, is to deny Sonia’s request for spousal support to which she might have been entitled had she divorced in Ontario. This is because, unlike Part I of the Family Law Act dealing with family property, Part III of the Family Law Act, dealing with support obligations, does not include the phrase “former spouse” when describing who may apply for support. Ontario cases have therefore interpreted the Family Law Act as not permitting a former spouse, such as Sonia, to seek spousal support.: Rothgiesser v. Rothgiesser (2000), 46 O.R. (3d) 577 (Ont. C.A.), at para. 26; Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, at para. 42; and Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172, at paras. 27-30.
[12] For that reason, unless and until the wording in the Family Law Act is changed to define “spouse” to explicitly include a former spouse, or this line of cases is revisited, a party such as Sonia, to a foreign divorce, cannot seek spousal support under the Family Law Act.
[13] Finally, I conclude that Sonia does not meet the high threshold that must be met to support an order granting leave to appeal costs.
B. ANALYSIS
[14] I will begin my analysis with a review of the divorce provisions in Bangladesh followed by the provisions in s. 22 of Canada’s Divorce Act that govern the recognition of foreign divorces. I will then review the evidence in this case followed by my analysis of the issues raised on appeal and the motion judge’s treatment of those issues.
C. LEGAL BACKGROUND
(1) The Bangladesh Divorce Provisions
[15] The talaq divorce in Bangladesh is governed by s. 7 of the Muslim Family Laws Ordinance 1961 (the “Bangladesh Ordinance”).
[16] The relevant portion of s. 7 reads as follows:
7 (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for term which may extend to one year or with fine which may extend to [ten thousand taka] or with both.
(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation…
[17] Section 7 of the Bangladesh Ordinance therefore provides that the husband must give written notice of the divorce to the wife and to the Chairman of the local municipality. Upon receipt of the notice, the Chairman must, within 30 days, constitute an Arbitration Council to encourage reconciliation, however a failure to do so does not invalidate the divorce. The parties are legally divorced 90 days after the Chairman receives notice, unless the talaq is revoked or the parties reconcile. A failure to provide the proper notice is punishable by both penal and financial sanctions.
[18] Prior to the enactment of the Bangladesh Ordinance in 1961, a husband had a “unilateral” and “unbridled” power to divorce. The Bangladesh Ordinance retains the husband’s power to divorce but provides the wife with an opportunity to take part in the process. According to the appellant’s expert, quoting an opinion of the Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhamad Yusuf (1963), 15 D.L.R. 9, “[t]he objective of s. 7 is to prevent hasty dissolution of marriages by the husband, unilaterally, without an attempt being made to prevent disruption of the matrimonial status”.
[19] The registration of divorces in Bangladesh is governed by the Muslim Marriages and Divorces (Registration) Act, 1974 (“the Act”). The Act provides for the registration of divorces by a Nikah Registrar. The person seeking the divorce files an application to register but registration is not required for the divorce to become effective.
(2) Legal Recognition of Foreign Divorces in Canada
[20] Section 22 of the Divorce Act sets out the circumstances in which a Canadian court will recognize a foreign divorce. Section 22 reads as follows:
(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, 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 the purpose 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. [Emphasis added.]
[21] Section 22(3) expressly upholds the common law principles applicable to the recognition of foreign divorces: Novikova v. Lyzo, 2019 ONCA 821, 31 R.F.L. (8th) 140, at para. 14; Julien D. Payne, Payne on Divorce, 4th ed. (Scarborough: Carswell, 1996), at p. 111.
[22] Under the common law, Canadian courts will recognize a foreign divorce where: (i) jurisdiction was assumed on the basis of the domicile of the spouses; (ii) the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties; (iii) the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings; (iv) the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada; (v) the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or (vi) the foreign divorce is recognized in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection: Payne, at p. 111; See also Jean-Gabriel Castel and Janet Walker, Canadian Conflict of Laws, 6th ed., loose-leaf (Markham: LexisNexis Canada Inc., 2005) at para. 17.2.a; Novikova, at para. 14; and El Qaoud v. Orabi, 2005 NSCA 28, 12 R.F.L. (6th) 296, at para. 14.
[23] In this case, the motion judge recognized the foreign divorce under s. 22(3) of the Divorce Act because there was a real and substantial connection between the parties and the foreign jurisdiction. A real and substantial connection requires a substantial connection to the foreign jurisdiction, established through connecting factors such as historical residence in the foreign jurisdiction, having extended family residing in the foreign jurisdiction, and getting married in the foreign jurisdiction: Beals v. Saldanha, 2003 SCC 72, 235 D.L.R. (4th), at para. 32; Saleh v. Tawoosi, 2016 ONSC 540, at para. 36, aff’d 2016 ONCA 986, 92 R.F.L. (7th) 261; Wilson v. Kovalev, 2016 ONSC 163, 72 R.F.L. (7th) 362, at paras. 13-14.
[24] As indicated by the motion judge, these common law principles originate in the principles governing the recognition of foreign judgments generally. They are, therefore, rooted in the principles of comity, i.e., “the deference and respect due by other states to the actions of a state legitimately taken within its territory”: Beals, at para. 20, citing Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, at p. 1095. The motion judge succinctly summarized the importance of comity in the context of foreign divorces:
There would be great uncertainty and a lack of finality if parties were permitted to re-litigate issues already decided in foreign jurisdictions again in Canada, requiring domestic courts to interpret and apply foreign law over which they have no jurisdiction. Respect and recognition of foreign judgments is imperative in the modern, highly integrated world; it ensures order, fairness, and “security of transactions with justice”. Moreover, a refusal to recognize divorces validly obtained in foreign jurisdictions could create significant uncertainty in the marital status of anyone from such jurisdictions seeking to immigrate to Canada, and who had previously been divorced in accordance with local law in the foreign jurisdiction. This would be inconsistent with long-standing principles of Canadian immigration policy, designed to remove barriers to immigration from countries with legal traditions different from our own. [Citations omitted.]
[25] Comity must, however, be balanced against order and fairness: Beals, at para. 21. Therefore, where a foreign divorce satisfies a common law ground for recognition, the divorce is presumptively valid, and the onus falls on the party disputing its validity to establish that the divorce should not be recognized: Abraham, at para. 15. However, “[o]nly in very rare circumstances will a foreign divorce properly obtained pursuant to the laws of another jurisdiction, not be recognized by Canadian courts”: Kadri v. Kadri, 2015 ONSC 321, 59 R.F.L. (7th) 187, at para. 81.
[26] There are limited grounds upon which a court may refuse to recognize a foreign divorce that is otherwise presumptively valid: where the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country, where there is evidence of fraud going to the jurisdiction of the granting court, where there has been a denial of natural justice such as the absence of notice, or where the foreign divorce is contrary to Canadian public policy: Abraham, at para. 15; Novikova, at para. 15; Wilson, at para. 10.
[27] The public policy exception, at issue in this case, is “directed at the concept of repugnant laws not repugnant facts”: Beals, at para. 70. Comity requires respect between sovereign states such that issues of public policy should only be invoked where it is appropriate for the court to condemn the foreign law on which the judgment is based: Beals, at para. 75.
D. FACTUAL BACKGROUND
[28] Sonia and Ratan were married in Bangladesh in 1998. Throughout their marriage, they lived together in Bangladesh and had three children. In 2015, Ratan and the children obtained Canadian landed immigrant status. In January 2016, Ratan applied to sponsor his wife Sonia to become a permanent resident. In August 2016, Ratan and the children moved to Canada. Sonia remained in Bangladesh.
[29] On November 17, 2016, Ratan personally delivered a written notice of divorce to Sonia at the Dhaka airport in Bangladesh. He also couriered a copy of the notice to the Mayor of Brahmanbaria (i.e., the Chairman, for the purposes of s. 7 of the Bangladesh Ordinance).
[30] On February 24, 2017, Sonia came to Canada.
[31] On March 17, 2017, the Bangladesh divorce became effective pursuant to the Bangladesh Ordinance.
[32] On January 7, 2020, Sonia filed an application in Ontario for a divorce and corollary relief under the Divorce Act and the Family Law Act.
[33] Ratan disputed the application and filed a Divorce Certificate for the Bangladesh divorce issued on June 15, 2017 by a Marriage and Divorce Registrar in Dhaka, Bangladesh (the “Registrar”). Ratan took the position that the parties were already divorced effective March 17, 2017 and that, since Sonia’s equalization claim was brought more than two years after the Bangladesh divorce, her property claims were barred by s. 7(3) of the Family Law Act.
[34] Sonia denied that she and Ratan were divorced in 2017, claiming that Ratan’s evidence was fraudulent and, in the alternative, that he had not followed the proper procedure for a divorce in Bangladesh.
[35] In order to try and resolve the contentious proceeding, discussions were undertaken to resolve certain issues on consent. On March 30 and 31, 2021, two Consent Orders were issued. Among other things, the Consent Orders provided that (i) the Bangladesh divorce was valid in Bangladesh but should not be recognized for the purpose of Canadian law for public policy reasons; and (ii) the divorce in Canada would be granted, and the Ontario court would have the jurisdiction to determine spousal support and equalization of property.
[36] During the discussion of these terms, Ratan alleged that Sonia had married a third party, T. A., in 2016. However, Sonia denied the allegation and, since there was no evidence to substantiate the allegation, the motion judge did not consider the issue and proceeded with the Consent Orders.
[37] However, after the Consent Orders were signed, Ratan obtained evidence from witnesses who attended the wedding and the person who presided over the wedding, that Sonia married T. A. in 2020. The motion judge directed a hearing on the issue and ultimately found that Sonia did marry T. A. on May 24, 2020: Sonia v. Ratan, 2022 ONSC 3690 (the “July Endorsement”).
[38] Armed with this finding, Ratan brought a motion to set aside the Consent Orders and obtain an order declaring that the Bangladesh divorce was valid under the laws of Bangladesh and recognized in Canada. He took the position that Sonia’s claim that she had not married T. A. vitiated his consent to the Consent Orders and undermined her claim that the Bangladesh divorce was invalid.
[39] Sonia took the position that Ratan knew about previous marriage. In the alternative, she claimed that the Bangladesh divorce was fraudulent, and that Ratan failed to follow the procedure required to obtain the Bangladesh divorce. Sonia also claimed it would be contrary to the principles of natural justice and public policy to recognize the Bangladesh divorce as it permits a husband to unilaterally divorce his wife, which is fundamentally inconsistent with Canadian values.
E. THE MOTION JUDGE’S REASONS
[40] The motion judge set aside the Consent Orders and held that the Bangladesh divorce was valid and recognized in Canada.
[41] In setting aside the Consent Orders, the motion judge made the following findings: (i) evidence of Sonia’s marriage to T. A. was only discovered after the Consent Orders were signed; (ii) Ratan’s consent to the Consent Orders was vitiated by civil fraud, namely that Sonia had misrepresented that she had not remarried in Bangladesh after the Bangladesh divorce when in fact she had, and (iii) the Consent Orders would not have been issued had there been credible evidence available that Sonia had remarried in Bangladesh after the Bangladesh divorce came into effect. The motion judge held that the Consent Orders could not remain as they would effectively mean that Sonia had been married to both Ratan and T. A. at the same time.
[42] In making these findings, the motion judge held that Sonia was not a credible witness: she had put forward multiple versions of how she became aware of the Bangladesh divorce, she could not explain the inconsistencies, and her claims of fraud were illogical. Furthermore, her own children testified that she had told them her allegations against Ratan were false, and there was no reason to doubt their credibility. By contrast, the motion judge found that Ratan’s evidence was largely credible, consistent throughout the litigation, and corroborated by local officials, and his and Sonia’s children.
[43] The motion judge then considered whether the Bangladesh divorce of March 2017 should be recognized in Canada pursuant to s. 22(3) of the Divorce Act. He held that,
a) The common law test for recognizing a foreign divorce was met, and the divorce was presumed valid as the parties had a real and substantial connection with Bangladesh at the time of the divorce. Sonia and Ratan were married in Bangladesh, had their children there and Sonia continued to live there until February 2017. Moreover, Sonia herself had initiated divorce proceedings in Bangladesh in early 2016 that were later withdrawn, which suggest that she viewed Bangladesh as the appropriate forum for divorce;
b) There was no fraud or breach of natural justice in obtaining the divorce. In particular, the motion judge held that Sonia had received notice of the divorce; and
c) Public policy favoured recognizing the Bangladesh divorce. Depending on the circumstances, even a “bare” talaq divorce could be recognized in Canada. The case law submitted by Sonia involved talaq divorces that were decided on grounds of lack of notice or want of jurisdiction, both of which are well-recognized grounds for refusing to recognize a foreign divorce. In this case, Sonia’s actions commencing these proceedings in bad faith, knowing she had remarried, militated in favour of recognizing the divorce. The motion judge concluded that a party cannot invoke public policy where that party has conducted themselves in a manner that is contrary to public policy.
F. ISSUES ON APPEAL:
[44] Sonia claims the motion judge erred by:
1. Setting aside the Consent Orders;
2. Recognizing and enforcing the Bangladesh divorce;
3. Considering her alleged bad faith at the public policy stage;
4. Finding that she acted in bad faith; and
5. Awarding costs to Ratan.
G. ANALYSIS OF THE ISSUES
(i) The First Issue: Did the motion judge err in law in setting aside the Consent Orders?
[45] Rule 25(19) of the Family Law Rules, O. Reg. 114/99, provides that a court may set aside a family law order that contains a mistake or was obtained by fraud. Rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which applies by virtue of Rule 1(7) of the Family Law Rules where a matter is not covered adequately by those rules and the court considers it appropriate, provides that a court may set aside or vary an order where there is fraud or facts arising or discovered after the order was made.
[46] The motion judge set aside the Consent Orders on two independent grounds: (i) Ratan’s consent was vitiated by fraud, since Sonia misrepresented that she had not remarried; and (ii) there were facts discovered after the Consent Orders were made that, if known by the court at the time, would have resulted in the Consent Orders not being granted.
[47] Sonia argues that the motion judge erred in setting aside the Consent Orders because: (i) he relied on the validity of the “bare” talaq as a basis for setting aside the Consent Orders; (ii) Ratan knew of Sonia’s marriage to T. A. at the time of the Consent Orders and accordingly, discovery of evidence of that fact should not have vitiated Ratan’s consent; and (iii) the motion judge failed to consider whether the subsequent marriage was a valid marriage in Bangladesh.
[48] I would not accept these submissions for several reasons.
[49] First, the motion judge did not rely on the validity of the talaq divorce when setting aside the Consent Orders. The talaq divorce is not mentioned at all in this portion of his reasons nor is there anything in the reasons to indicate that the validity of the divorce was a factor in setting aside the Consent Orders. Rather, it was Sonia’s misrepresentation that she never married T. A. which vitiated Ratan’s consent.
[50] Second, the motion judge specifically rejected the suggestion that Ratan knew of the subsequent marriage at the time of the Consent Orders. Ratan suspected that a marriage had occurred in 2016. However, his consent was vitiated by the fact that at the time Ratan agreed to the Consent Orders, there was no evidence that Sonia had remarried in 2020. Accordingly, the issue of whether she had remarried was not addressed.
[51] The motion judge found that Sonia’s statement that she had never remarried was a misrepresentation that was intended to be acted upon and was in fact acted upon: Danylkiw v. Danylkiw (2003), 37 R.F.L. (5th) 43 (Ont. S.C.), at para. 60, aff’d (2004), 9 R.F.L. (6th) 93 (Ont. C.A.). There was no onus on Ratan to test the accuracy of her deliberate misrepresentation: Virc v. Blair, 2014 ONCA 392, 119 O.R. (3d) 721, at para. 58.
[52] Finally, whether the subsequent marriage was valid is irrelevant. The motion judge specifically found that the second ground for setting aside the Consent Orders, namely that there were facts discovered after the Consent Orders were made, applied regardless of whether Sonia had in fact married. It was enough that there was credible evidence to this effect. The motion judge would not have approved the Consent Orders had he been aware of such evidence at the time the Consent Orders were made.
[53] As such, I see no error in the motion judge’s setting aside the Consent Orders.
(ii) The Second Issue: Did the motion judge err in law by recognizing the Bangladesh Divorce?
[54] Sonia submits that the motion judge erred in law by recognizing the Bangladesh divorce as it is a “bare” talaq divorce that was not granted by a “competent authority” as required by s. 22 of the Divorce Act: Abraham, at para. 23. Sonia further claims that “bare” talaq divorces are not recognized in Canada on public policy grounds, as they do not involve any civil law adjudicative or official oversight of the divorce to address the public policy issues arising out of religious divorces: Abraham, at para. 20.
[55] For the reasons that follow, I disagree with Sonia’s submission that the Bangladesh divorce should not be recognized in Canada.
(1) Real and Substantial Connection
[56] First, there is no dispute that there was a real and substantial connection to Bangladesh. Sonia was married, had her children and was living in Bangladesh until after she received Ratan’s divorce notice. The divorce is therefore presumptively valid under s. 22(3) of the Divorce Act and the onus falls on Sonia to prove that an exception applies: Abraham, at para. 15. In this case, Sonia relies solely on the public policy exception.
(2) Public Policy
[57] Second, I disagree that the recognition of the Bangladesh divorce is contrary to public policy. On this appeal, there is no issue that the divorce was obtained by fraud or that there was a denial of natural justice. The only issue is whether recognition of the Bangladesh divorce constitutes a breach of public policy.
[58] Sonia describes the divorce as a “bare” talaq divorce that was not granted by a competent authority, and over which there was no state oversight. She therefore claims it is against Canadian public policy.
[59] Sonia is correct that “bare” talaq divorces are not recognized as valid in Canada: Abraham, at para. 20; Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 F.C.R. 531, at paras. 19-20. To the extent that the motion judge found otherwise, he was in error. As stated by the English Court of Appeal in Chaudhary v. Chaudhary, [1984] 2 All. E.R. 1017 (C.A.), at pp. 368-9:
The essentials of the bare talaq are, as I understand it, merely the private recital of verbal formula in front of witnesses who may or may not have been specially assembled by the husband for the purpose and whose only qualification is that, presumably, they can see and hear…what brings about the divorce is the pronouncement before witnesses and that alone. Thus in its essential elements it lacks any formality other than ritual performance; it lacks any necessary element of publicity; it lacks the invocation of the assistance or involvement of any organ of, or recognised by, the state in any capacity at all, even if merely that of registering or recording what has been done. Thus, though the public consequences are very different, the essential procedure differs very little from any other private act such as the execution of a will and is akin to the purely consensual type of divorce recognised in some states in the Far East. [Emphasis added.]
[60] There are significant public policy concerns associated with the “bare” talaq divorce, as well as with some other divorces arising only from religious authority. They do not require notice, are unilateral in that they come into effect upon the husband’s pronouncement, are immediately effective upon the pronouncement of the talaq, have no participatory role for the wife, and provide the wife with no way to stop the divorce from coming into effect: Abraham, at para. 20; Chaudhary, at p. 374. This is what makes such talaq divorces “bare”.
[61] However, not all talaq divorces are “bare” talaq divorces.
[62] There is consistent case law establishing that the procedure in s. 7 of the Bangladesh Ordinance removes the “bare” nature of a talaq divorce, satisfies the requirements of s. 22 of the Divorce Act and does not offend Canadian public policy.
[63] Before turning to Canadian case law, I will first discuss case law arising from the English courts, as it provides helpful commentary on the type of state oversight that is necessary in order to recognize a foreign divorce. This English case law has been relied on by Canadian courts in coming to their own conclusion on the validity of talaq divorces pursuant to s. 22 of the Divorce Act.
[64] As a preliminary issue, I note that much of the case law that follows concerns the Muslim Family Laws Ordinance 1961 in Pakistan (the “Pakistan Ordinance”). The Pakistan Ordinance, including s. 7, is substantially identical to the Bangladesh Ordinance.[1] As such, although these cases deal with a different piece of legislation, the analysis is highly relevant to the analysis of the Bangladesh Ordinance.
(a) English Case Law
[65] One of the earliest cases dealing with the recognition of a foreign talaq divorce in England is Quazi v. Quazi, [1980] A.C. 744 (H.L.). In Quazi, the House of Lords recognized a talaq divorce obtained under s. 7 of the Pakistan Ordinance. The court emphasized, at p. 825, the legal power that s. 7 gave to the talaq in comparison to the “bare” talaq:
The divorce became under Pakistan law effective not, as under the classic Islamic law, on pronouncement of talaq but upon expiry of 90 days, unless revoked, from the notice in writing to the chairman of the union council. That this is the law of Pakistan brooks of no doubt.
[66] Lord Salmon, at p. 812, stated:
Section 7 lays down plainly the proceeding which the husband must take in order to make talaq legally effective to obtain a divorce in Pakistan. The obligation of the husband under section 7 (1) of the Muslim Family Laws Ordinance 1961 is to give notice to the chairman of the relevant union of talaq promptly after its pronouncement. This seems to me to oblige the husband to take a proceeding of crucial importance, for if he fails to take this proceeding he is liable to be sentenced to a term of imprisonment of up to one year or fined up to 5,000 rupees or both. Moreover talaq is of no effect until the expiration of 90 days from the day on which notice of it is delivered to the chairman. If the husband fails to take the proceeding of giving notice of talaq in accordance with section 7 (1), the talaq is not effective to constitute a divorce under the law of Pakistan. [Emphasis added.]
[67] In terms of state oversight, Chaudhary is instructive. For a foreign divorce to be recognized in England, it must be obtained through “judicial or other proceedings”: Chaudhary, at pp. 362-3. The court in Chaudhary, at p. 372, discussed the definition of “proceedings”, stating that:
“proceedings” requires some form of State machinery to be involved in the divorce process; not necessarily machinery established by the state … The act or acts of one or both of the parties to the marriage, without more, cannot amount to proceedings; there must be an intervention of some other body, a person with a specific function to fulfil, such as the Union Council in the case of the talaq considered in Quazi v Quazi [1980] AC 744, [1979] 3 All ER 897. [Emphasis added.]
[68] In the words of Oliver L.J., at p. 368, “proceedings” require “a degree of formality and at least the involvement of some agency, whether lay or religion, of or recognised by the state having a function that is more than simply probative.”
[69] Notably, the court in Quazi found that the process in s. 7 of the Pakistan Ordinance was sufficient to fall with the definition of “proceedings”.
(b) Canadian Case Law
[70] As this court stated in Abraham, at para. 23, “[f]or any part of s. 22 of the Divorce Act to be engaged and a foreign divorce recognized under Canadian law, the divorce must be granted and not only administratively registered or recognized by a competent authority.” There must be “some form of adjudicative or official oversight”: Abraham, para. 2; see also Amin, at para. 20.
[71] The Divorce Act defines a “competent authority” as “a tribunal or other entity in a country other than Canada, or a subdivision of such a country, that has the authority to make a decision under their law respecting any subject matter that could be dealt with under this Act”: s. 2(1).
[72] Canadian courts have relied heavily on the English cases discussed above to find that divorces granted under the Pakistan Ordinance are valid in Canada. The cases discussed below are in the immigration context. Since you can only be married to one person in Canada, in circumstances where a person has remarried and is seeking to sponsor their new spouse to come to Canada, they must show that they are legally divorced from their first spouse before they married the second spouse.
[73] The leading case in this context is Amin, in which the applicant, Amin, had divorced his first wife under the Pakistan Ordinance. The evidence established that while Amin had given notice to his first wife many years prior, he had not given notice to the Chairman until after he had married his second wife. The court found that the talaq divorce did not become legally valid, and therefore could not be recognized as becoming valid in Canada, until after Amin had married his second wife. Therefore, while the divorce was technically valid in Canada, given the timing of the divorce coming into effect, the sponsorship was statute-barred.
[74] In coming to this finding, the court, like in Quazi, distinguished between the validity of the divorce for religious purposes and the validity of the divorce for legal purposes. While the divorce may have been valid in Pakistan under Shariah law (i.e. it was religiously valid), it did not gain legal validity until it complied with the Pakistan Ordinance.
[75] The court then found at para. 20, that the process by which the divorce gained legal validity, i.e., s. 7 of the Pakistan Ordinance, was sufficient for the purposes of s. 22(1) of the Divorce Act:
The obvious intent of subsection 22(1) of the Divorce Act was to require that some form of adjudicative or official oversight be present before Canada will recognize a foreign divorce. This requirement would be fulfilled by the process dictated by the Muslim Family Laws Ordinance. 1961. The obvious purpose of such oversight is to address important public policy issues which can arise out of the domestic recognition of informal or religiously based divorces. [Citations omitted].
[76] There is a large body of case law from the Immigration and Refugee Board (Immigration Appeal Division), applying Amin and finding that it is the procedure in s. 7 of the Pakistan Ordinance that transforms a prima facie unenforceable “bare” talaq divorce into a talaq divorce that is recognized by Canadian law: Saleem v. Canada (Citizenship and Immigration), 2010 CanLII 87618 (IRB App. Div.); Butt v. Canada (Citizenship and Immigration), 2010 CanLII 78765 (IRB App. Div.) (where the divorce was valid but had not been obtained before the second marriage); and Tiraei v. Canada (Citizenship and Immigration), 2009 CanLII 78323 (IRB App. Div.), (where the divorce was not recognized because the Pakistan Ordinance had not been complied with). Amin has been followed more recently in Nanji v. Canada (Citizenship and Immigration), 2022 FC 1306.
[77] Amin has also been applied to recognize a divorce granted under the Bangladesh Ordinance, although substantial reasons were not given: Khaleque v. Canada (Citizenship and Immigration), 2012 CanLII 101473 (IRB App. Div.), at paras. 12-13.
(c) Application to This Case
[78] Sonia relies heavily on the Abraham decision, particularly its holding, at para. 19, that there must be state oversight in the granting of the divorce versus the registration of the divorce. The latter is simply authentication of an already granted divorce with the governmental authorities: Abraham, at para. 19.
[79] The case law above is clear: it is the procedure in s. 7 of the Bangladesh Ordinance that gives the divorce legal validity. In other words, it is the statutory procedure in s. 7 that grants the divorce. As stated above, registration of the divorce is governed by an entirely different statute.
[80] Although the case law above also states that the procedure in the Bangladesh Ordinance is sufficient to address the public policy concerns associated with the talaq divorce, I will address the appellant’s specific concerns directly, for completeness.
[81] As discussed above, Sonia’s own expert advised that the Bangladesh Ordinance removes the unilateral nature of the talaq and provides the wife with an opportunity to participate.
[82] The wife’s participation and opportunity to be heard, both privately and publicly, is facilitated through the notice requirement, the formation of the Arbitration Council, and the 90-day waiting period, removing the immediateness of a “bare” talaq. The unilateral nature of a “bare” talaq also does not exist here as the divorce process involves oversight by a public authority, which is emphasized by the financial and penal sanctions that may be imposed for a failure to provide notice.
[83] The requirements in the Bangladesh Ordinance that the wife be given notice, and the 90-day waiting period, alleviate the public policy concerns usually associated with “bare” talaq divorces. “Bare” talaq divorces continue to be unenforceable if obtained in Canada, however it would be contrary to the principle of comity to refuse to recognize any talaq divorce simply because it follows a different legal tradition than our own.
[84] It is not necessary to consider whether the foreign law was properly applied, as this is an issue that should be raised in Bangladesh.
[85] The Bangladesh divorce was granted after a 90-day period to enable the parties to consider reconciliation and after delivery of a copy of the Divorce Notice to the Mayor of Brahmanbaria. The divorce was recognized by the Registrar and the expert evidence of all three experts for both parties was that the Bangladesh divorce complied with s. 7 of the Bangladesh Ordinance.
[86] This is not a case like Abraham, where there was a “bare” talaq that was immediately effective (from a religious perspective), with no state oversight and no notice provided to the wife. It also does not involve forum shopping or a lack of a real and substantial connection to the jurisdiction, like in Abraham.
[87] Nor is this a case like Novikova, where the husband had failed to give notice to the wife as required by the foreign law. Accordingly, there was no breach of natural justice.
[88] The crux of Sonia’s public policy concern is that recognition of a “bare” talaq divorce is contrary to public policy and deprives her of the ability to seek spousal support and an equalization of net family properties.
[89] Sonia is correct that courts have declined to recognize “bare” talaq divorces as effective; without some form of adjudicative or official oversight, they are regarded as “manifestly contrary to public policy”: Chaudhary, at p. 1032; Amin, at para. 20; Abdulla, at para. 21. However, for the reasons above, the Bangladesh divorce is not a “bare” talaq divorce.
[90] For these reasons, I see no error in the motion judge’s recognition of the Bangladesh divorce, and I would dismiss this ground of appeal.
[91] Nonetheless, I reiterate that, as discussed above, Ontario jurisprudence has interpreted the provisions of the Family Law Act to prohibit a former spouse, legally divorced in a foreign jurisdiction, from seeking spousal support in Ontario: Rothgiesser, at para. 26; Okmyansky, at para. 42; Cheng, at paras. 27-30.
[92] This is a result that in some cases could result in significant hardship.
[93] Family law legislation in other Canadian provinces permits former spouses to apply for support.[2]
[94] The addition of the words “or former spouse” to s. 30 of the Family Law Act to ensure that spouses who divorce in foreign jurisdictions can bring applications for support in Ontario is an issue that, in my view, could be addressed by the Ontario legislature. Further, it may be that the foregoing line of jurisprudence could be revisited.
(iii) The Third Issue: Did the motion judge make a palpable and overriding error in finding that Sonia acted in bad faith?
[95] In addition to finding that the divorce itself was not contrary to Canadian public policy, the motion judge also found that Sonia had commenced her claim in bad faith, knowing she had remarried. The motion judge considered this in his public policy analysis and found that it weighed in favour of recognizing the divorce.
[96] The appellant alleges that this was an error in law, as her behaviour cannot be considered within the framework of the public policy exception.
[97] I agree that it was an error in law to consider Sonia’s bad faith in deciding whether the divorce was contrary to public policy. As discussed above, the public policy exception is aimed at the foreign law, not the facts of the case: Beals, at paras. 71 and 75.
[98] However, given that this divorce is not contrary to public policy, this error had no effect on the outcome of this case. Once it is established that the foreign divorce meets the conditions in s. 22 of the Divorce Act, it is presumptively valid: Abraham, at para. 15. The public policy exception is only available to rebut that presumption. Where, as here, a divorce is presumptively valid, and there are no considerations weighing against this presumption, the analysis should end.
[99] I would therefore dismiss this ground of appeal.
(iv) The Fourth Issue: Did the motion judge make a palpable and overriding error in finding that Sonia acted in bad faith?
[100] Sonia claims that the motion judge erred in finding that she acted in bad faith. Given my findings on the third issue, namely that the use of the alleged bad faith did not affect the outcome in this case, it is not strictly necessary that I deal with this issue, save to the extent that it affects Sonia’s request for leave to appeal costs. In any event, the motion judge’s findings on bad faith related solely to the fact that Sonia knew she had remarried and deliberately misrepresented this fact in the litigation. This finding was well-supported on the evidence.
(v) The Fifth Issue: Did the motion judge err in awarding full indemnity costs?
[101] Given Ratan’s success on the motion and the motion judge’s findings that Sonia conducted the litigation in bad faith and made numerous unfounded allegations of fraud, Sonia has failed to meet the high threshold for obtaining leave to appeal the motion judge’s costs award.
H. DISPOSITION
[102] For these reasons, I would dismiss the appeal. The respondent is entitled to his partial indemnity costs fixed in the amount of $20,000 inclusive of disbursements and HST.
Released: February 28, 2024 “J.S.”
“Thorburn J.A.”
“I agree. Janet Simmons J.A.”
“I agree. David M. Paciocco J.A.”
[1] The Pakistan Ordinance can be found at <https://www.refworld.org/pdfid/4c3f1e1c2.pdf?; The Bangladesh Ordinance can be found at <http://bdlaws.minlaw.gov.bd/act-305/section-13525.html>.
[2] Alberta, British Columbia, Manitoba, Nova Scotia and Prince Edward Island all permit former spouses to seek spousal support under their respective legislation.