Court Compels Husband to Divorce Wife Under Foreign Law

Mark Feigenbaum

In a recent decision from British Columbia, the Supreme Court of British Columbia considered an application for an order from a wife to complete certain forms so that an Islamic Iranian divorce can be registered with the Iranian government.

Although the couple had been legally divorced in Canada, the husband refused to consent to an Islamic Iranian divorce, which only a man can pursue. The wife sought the assistance of the Supreme Court of British Columbia to compel the husband to cooperate.

What Happened?

In November 1994, the couple married in Iran and a marriage contract was signed by both parties that included an exchange of 114 Bahar Azadi gold coins (also known as the payment of the Maher).

On September 23, 2012, the parties separated in British Columbia. Both parties formally divorced in 2015.

On July 26, 2016, the wife had brought a petition in Iran seeking to ratify the divorce. The Petition was ultimately dismissed, as only the man has the exclusive right to divorce.

The husband was adamant about refusing to initiate a divorce under Iranian law. The wife eventually sought assistance from the Supreme Court of British Columbia to order her husband to complete the requisite forms, so that an Islamic Iranian divorce could be registered with the Iranian government. She also asked for a ratification of the Canadian divorce, to ensure that it was recognized under Iranian law.

To have their divorce recognized under Iranian law enabled the wife to remarry should she desire, but also to travel to and from Iran, where her elderly mother and disabled sister still reside. In the past, the wife was able to visit her mother and sister, but only because her husband had previously consented to these trips. Now, travelling to and from Iran without his consent would place her in jeopardy of being detained in Iran, as her “husband” could prevent her from leaving the country as he controls her travel.

Case Law

The Supreme Court of Canada dealt with a similar issue where a husband refused to provide his wife with a Jewish divorce. The Supreme Court of Canada noted a dichotomy whereby a Jewish woman in Canada is free to divorce her husband regardless of his consent; however, under Jewish law she remains married to him unless he provides his consent. The consequence is that she can remarry under Canadian law, but is prevented from remarrying in accordance with her religion. This often results in many Jewish women losing their ability to remarry at all.

Another decision from the Ontario Superior Court of Justice determined that an Islamic divorce is obtainable in Ontario and that the parties would still be considered married in Iran without a religious divorce. The Ontario Superior Court concluded that it had jurisdiction to adjudicate such an issue and eventually granted the relief sought by the wife.

The Supreme Court of Canada also dealt with using a public policy defence regarding foreign judgements that are contrary to the Canadian concept of justice. The Supreme Court of Canada held that this defence is not to be used lightly and should only have narrow application, though in certain circumstances it may be warranted. The Supreme Court of Canada explained that such defence turns on, “whether the foreign law is contrary to our view of basic morality.”

Decision

The Court held that it had sufficient legal authority to grant the wife an Iranian divorce.

The Court considered that religious freedoms are subject to limitations when they disproportionately conflict with other significant public rights and interests and that conduct would potentially cause harm to or interfere with the rights of others.

The Court accepted that should the wife choose to travel to Iran, she would put herself at risk of not being able to return to Canada under her own volition. This issue causes substantial harm to the wife, as this would effectively prohibit her from visiting her elderly mother and disabled sister. In addition, it has potentially harmed the interests of the children of the wife and husband, as they have not had the opportunity to travel to Iran to visit their grandmother and aunt either.

The Court also considered that the wife, through her counsel in Iran, had sought an Islamic divorce in Iran but was denied. The Court noted that the husband failed to respond to the wife’s application or attend the hearing, and so the Court did not have the benefit of his submissions on the Iranian judgment. However, it was the Court’s conclusion that the judgment should not be recognized in Canada for reasons of public policy.

Ultimately, the Court held that it was against Canadian public policy to recognize that the right to the parties’ Islamic Iranian Divorce is exclusively the husband’s, as a man. It was the Court’s view that this would effectively restrict the wife from visiting her family, which is unwarranted in light of Canada’s views and case law on the equality of sexes.

The Court ruled that the parties are divorced, and compelled the husband to execute the necessary documents required for an Islamic Iranian divorce. The Court also included the specific Iranian address to which the required documents must be sent. The Court held that the husband had 14 days of the order to execute the documents.

Mark Feigenbaum brings together years of litigation, corporate law, tax law, and accounting experience. He applies this multi-faceted experience to family law disputes with the ultimate goal of helping you move forward following the breakdown of a relationship while retaining as much financial stability as possible. The firm represents clients in Toronto and across the GTA, including in Thornhill, Vaughan, and Markham. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.