In Novikova v Lyzo, 2019 ONCA 821, the Ontario Court of Appeal considered the grounds in which foreign divorces are recognized in Canada.
The parties in this matter are Russian citizens but after moving to Canada in 2013, became permanent residents of Canada. The Appellant, Mr. Lyzo, returned to Russian and started divorce proceedings in February 2016, while Ms. Novikova stayed in Canada. In October 2016, Ms. Novikova commenced family law proceedings in the Ontario Superior Court of Justice.
Mr. Lyzo obtained a divorce from Ms. Novikova on June 8, 2016 in Russia. Ms. Novikova did not receive the notice of the divorce application as these letters were sent to her parent’s address in Russia. Ms. Novikova also did not receive a copy of the divorce order within the appeal period.
Mr. Lyzo brought a motion for summary judgement to have the Russian divorce recognized and to dismiss Ms. Novikova’s claim for spousal support. The Respondent also brought a motion for summary judgment to declare the Russian divorce invalid. Mr. Lyzo’s motion was dismissed and the Russian divorce was declared invalid due to the lack of notice to Ms. Noivkova.
The Appellant contended the motion judge made an error in law by finding the Russian divorce invalid without considering first whether the parties had a real and substantial connection to Russia. If the divorce was found to be valid under Russian law, it would terminate Ms. Novikova’s claim for spousal support.
Sections 22(1) and 22(2) of the Divorce Act allow courts to recognize foreign divorces where either spouse was ordinarily resident in the jurisdiction for at least a year prior to commencing divorce proceedings or where the wife resides in the jurisdiction. Sections 22(3) conserves the common law and conflict of laws principles.
Under section 22(3), the Court of Appeal noted, a court:
may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice (including absence of notice) or public policy.
At common law, there is a presumption of validity of a foreign divorce order. The Respondent has the onus to prove the presumption should be rebutted. In a similar recent case, Ho v Lau, 2019 ONSC 5573, the Ontario Superior Court of Justice provided another ground that the courts may refuse to recognize a foreign divorce which would otherwise be valid: if the foreign court that granted the divorce did not have the jurisdiction to do so under the law of the foreign country.
Here, the Court of Appeal found the motion judge correctly concentrated on Ms. Novikova’s lack of notice of the proceedings, which they found was a denial of natural justice. The Court of Appeal clearly disagreed with Mr. Lyzo’s argument and established it was necessary to address the issue of natural justice before engaging in an analysis of a real and substantial connection.