Date: 20090415
Docket: IMM-3162-08
Citation: 2009 FC 380
Ottawa, Ontario, April 15, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
HODA
HUSSEIN HAZIMEH
Respondent
REASONS FOR JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(Act) for judicial review of a decision by the Immigration and Refugee Board,
Appeal Division (IAD) dated July 24, 2008 (Decision) which allowed the appeal
of the Respondent from a decision of a visa officer who had refused her
husband’s application for permanent residence.
BACKGROUND
[2]
The
Respondent is originally from Lebanon and is now a Canadian
citizen. On August 20, 1992, she married Mr. Ali Hammoud in Lebanon. She then
came to Canada in October
1993 on Mr. Hammoud’s sponsorship.
[3]
Approximately
one month after her arrival, on November 5, 1993, the Respondent underwent a
religious “talaq” divorce in Ontario before a Representative
of the Supreme Shiite Islamic Council. At the time of the ceremony, the
Respondent had been a citizen of Canada for less than a month and was not
eligible to obtain a legal divorce in Ontario. As a result of the
divorce ceremony, the Respondent obtained a certificate signed and sealed by
Sayyed Abbas on November 5, 1993 which stated as follows:
The divorce of the abovementioned couple
was made irrevocable before me pursuant to religious and legal forms. The
spouse has abstained from the half of the due dower of non copulation. The
withdrawal has been accepted and the divorce was approved.
[4]
On
May 13, 1999, the Respondent registered the divorce with the Jaafari Religious
Court of Saida in Lebanon. The registration documents indicated the “divorce
date” to be November 5, 1993.
[5]
On
August 22, 1999, the Respondent married Hafez Farhat in Lebanon. She then
returned to Canada and
petitioned the Ontario Superior Court for a divorce from her first husband Mr.
Hammoud. The divorce was granted by the Superior Court and took effect on July
12, 2001. On or about August 27, 2001, the Respondent filed her first
sponsorship application for her second husband as a member of the family class.
The application was refused on June 26, 2002.
[6]
The
Respondent applied to sponsor her husband a second time on October 27, 2005. On
May 22, 2006, this application was also refused. The visa officer found that
the Respondent’s divorce was not valid under Canadian law because it had purportedly
taken place in Lebanon, while neither the Respondent nor her first husband were
ordinarily resident in Lebanon for the year prior to
the commencement of divorce proceedings. The Officer found that their divorce
did not meet the requirements of subsection 22(1) of the Divorce Act, 1985, c. 3 (2nd Supp.). Hence, the
Respondent was still married to her first husband when she married her second
husband so that her second husband could not be part of the family class.
DECISION UNDER REVIEW
[7]
The
IAD reviewed the issue of whether the divorce of the Respondent registered in Lebanon in May 1999
was valid under Canadian law. If it was not, then the Respondent would still be
married to her first husband for the purpose of Canadian law so that her second
husband would be excluded from membership in the family class. The IAD ruled
that the Respondent had divorced her first husband as of May 1999, so that her
marriage to her second husband in August 1999 was legally valid.
[8]
The
IAD considered sections of the Immigration and Refugee Protection
Regulations, SOR/2002-227
(Regulations) and the Divorce Act and cited Amin v. Canada (Citizenship and
Immigration),
[2008] FC 168 (Amin), for the following:
20 I
would add that, for the purpose of applying domestic law, I have serious
reservations about the appropriateness of recognizing extra-judicial divorces
of the sort in issue here. The obvious intent of section 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 Muslin Family Law Ordinance (1961):
see Quazi, above, at page 917 (All E.R.), page 825 (A.C.); and Chaudhary,
above, at page 1025. 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. Many of those concerns were
identified in the following passage from Chaudhary, above, at pages 1031
and 1032:
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. It may be, as it was in this case,
pronounced in the temple. It may be, as it was here, reinforced by a written
document containing such information, accurate or inaccurate, as the husband
cares to insert in it. But 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 it 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 of the Far East
(see eg Ratanachai v Ratanachai (1960) Times, 4 June, Varanand v
Varanand (1964) 108 SJ 693 and Lee v Lau [1964] 2 All ER 248, [1967] P 14).
In my
judgment, and looking at the 1971 Act alone, such an act cannot properly be
described as a 'proceeding" in any ordinary sense of the word, still less
a 'proceeding' in what must, for the reasons given above, be the restrictive
sense of the word as used in the Act.
...
However,
even if I am wrong in the view that I take on this point, I agree entirely with
the judge's decision on the second point, namely that to recognise the bare
talaq divorce in the instant case as effective here would be manifestly
contrary to public policy.
[Per
Oliver LJ]
[9]
The
IAD concluded that the talaq ceremony had no legal import in Canadian law. Only
formal recognition of the divorce by a foreign tribunal, or other state
authority, having jurisdiction in such matters is relevant when assessing whether
a foreign divorce may be recognized in Canada. The IAD
concluded that the Respondent’s divorce had not been heard and determined in
Ontario, but in Lebanon where the evidence established that it was
legally valid, thus making it applicable and recognizable in Canada under
section 22 of the Divorce Act.
[10]
The
IAD also looked at the scope of section 22(3) of the Divorce Act and
whether the “real and substantial connection” test was a common law rule in
Canada and applicable to the case at hand. The IAD held that the “real and
substantial connection” test was applicable and was determinative of the issue
of recognition of the registration of the divorce with the Jaafari Religious
Court of Saida.
[11]
The
final issue the IAD considered was whether there was a “real and substantial
connection” to Lebanon. It was held that there was a real and
substantial connection between the Respondent and her home country of Lebanon, so it was
reasonable for the Respondent to have registered her divorce with the
authorities in Lebanon.
[12]
Since
the Respondent’s first marriage had ended in a valid divorce in Canada, her
subsequent marriage was legally valid and the refusal to approve the
Respondent’s husband’s application for landing was not in accordance with Canadian
law.
ISSUES
[13]
The
Applicant raises the following issues and objections to the IAD Decision:
1)
The
Respondent did not undergo a divorce in Lebanon and
accordingly there is no “foreign divorce” which is potentially recognizable
under the Divorce Act for the purposes of Canadian law. The IAD erred in
law by failing to so find; and
2)
The
IAD erred in law in finding that the Respondent had a real and substantial
connection to Lebanon such that s.
22(3) of the Divorce Act could operate to permit recognition of a
divorce granted by Lebanon.
STATUTORY PROVISIONS
[14]
The
following provisions of the Regulations are applicable in these proceedings:
|
2. "marriage"
, in respect of a marriage
that took place outside Canada, means a marriage that is valid both under the
laws of the jurisdiction where it took place and under Canadian law.
117(9) A foreign national shall not be considered a member of the family class
by virtue of their relationship to a sponsor if
…
(c) the foreign national is the sponsor's spouse and
(i) the sponsor or the foreign national was, at the time of their
marriage, the spouse of another person, or
|
2. «mariage» S’agissant d’un mariage
contracté à l’extérieur du Canada, mariage valide à la fois en vertu des lois
du lieu où il a été contracté et des lois canadiennes.
117(9) Ne sont pas considérées comme
appartenant à la catégorie du regroupement familial du fait de leur relation
avec le répondant les personnes suivantes :
…
c) l’époux du répondant, si, selon le cas :
(i) le répondant ou cet époux étaient, au moment de leur
mariage, l’époux d’un tiers,
|
[15]
The
following provisions of the Divorce Act are applicable in these
proceedings:
|
22. (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.
…
(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.
|
22. (1) Un
divorce prononcé à compter de l’entrée en vigueur de la présente loi,
conformément à la loi d’un pays étranger ou d’une de ses subdivisions, par un
tribunal ou une autre autorité compétente est reconnu aux fins de déterminer
l’état matrimonial au Canada d’une personne donnée, à condition que l’un des
ex-époux ait résidé habituellement dans ce pays ou cette subdivision pendant
au moins l’année précédant l’introduction de l’instance.
…
(3) Le présent article n’a pas pour effet de porter
atteinte aux autres règles de droit relatives à la reconnaissance des
divorces dont le prononcé ne découle pas de l’application de la présente loi.
|
STANDARD OF REVIEW
[16]
The
Respondent relies upon Ismaeli v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 573 at paragraph 19 for the following:
The onus on the applicant to refute the Board's findings is a
heavy one. The applicant must be in a position to show that the conclusions
reached were perverse or capricious or so unreasonable that the Court is
duty-bound to set the decision aside.
[17]
Sivasamboo v. Canada (Minister of Citizenship and
Immigration), [1995]
1 F.C. 741 held that the IRB is a specialized body dealing with a highly
complex factual and regulatory context in which its decisions are made
(paragraph 18). A supervisory court should only intervene with the findings and
conclusions of fact of a specialized tribunal when it is shown to be a manifest
or palpable error that is clearly patently unreasonable (paragraph 22).
[18]
Chieu v. Canada (Minister
of Citizenship and Immigration), [2002]
S.C.J. No. 1 citing Pushpanathan v. Canada (Minister of Citizenship and
Immigration),
[1998] 1
S.C.R. 982 held at paragraph
20 that for legal questions of general importance in decisions of
the IRB the appropriate standard is correctness.
[19]
The Court in Dunsmuir v. New Brunswick [2008] SCC 9 held that
when applying the correctness standard in respect of jurisdictional and some
other questions of law, a reviewing court should not show deference to the
decision maker’s reasoning process; it should rather undertake its own analysis
of the question and decide whether it agrees with the determination of the
decision maker; if not, the court should substitute its own view and provide
the correct answer.
[20]
The
issues raised by the Applicant involve questions of law, and in light of the
case law before me, I find the appropriate standard of review is correctness.
ARGUMENT
The
Applicant
Evidence
Shows that Talaq Divorce Merely Registered in Lebanon
[21]
The
Applicant submits that the evidence shows that the Respondent did not get
divorced in Lebanon. Her talaq divorce
occurred in Canada. The registration and recognition of a divorce by Lebanon is not a
divorce granted by Lebanon. Therefore, the Applicant submits that the IAD
erred by failing to appreciate this distinction.
[22]
The
Applicant says that the Respondent’s own evidence confirms that the Lebanese
proceeding was a mere recognition of a divorce performed in Canada. The legal
opinion from a lawyer in Lebanon, which was entered as
an exhibit at the IAD hearing, stated as follows:
1)
The
Respondent was divorced from Mr. Hammoud, according to the certificate issued
by the Jaafari
Religious Court on November 4, 1993 at Canada;
2)
The
Respondent hasn’t been the wife of Mr. Hammoud since November 5, 1993;
3)
The
said divorce was registered before the Jaafari Religious Court of Saida on May
13, 1999.
[23]
The
Applicant submits that the evidence before the IAD showed that the divorce took
place in Canada and was merely registered and recognized by Lebanon so that the
Respondent could marry again in Lebanon. As well, the
Respondent’s divorce is not a foreign divorce but is a legal nullity because it
is a talaq divorce under Sharia law. Only the Ontario Superior court has
jurisdiction to grant divorces in the province of Ontario. The
Applicant contends that the Respondent was not divorced in either 1993 or 1999
for the purposes of Canadian law and her 1999 marriage to her second husband
was invalid.
IAD
Erroneously Concluded Divorce Considered in Lebanon
[24]
The
Applicant submits that the IAD erred in law in coming to the conclusion that a
foreign divorce had taken place, either by ignoring the evidence before it or
in finding that the registration of the talaq divorce in Lebanon constituted
a “foreign divorce” for the purposes of the Divorce Act.
[25]
The
IAD relied heavily on the decision of the Federal Court in Amin. However,
the Applicant submits that Amin concerned a talaq divorce pronounced in Pakistan but not
registered with civil authorities, as required by the Muslim Family Law Ordinance.
So the respondent in that case was seeking to have the divorce recognized as a
foreign divorce that was not effective until it was registered. The Applicant points
out that those are not the facts of this case and that, in fact, the Pakistani
Muslim Family Law Ordinance has no application to the current matter which concerns
a talaq divorce in Canada (Canada does not recognize Sharia law), as well as
the registration of that divorce in a different jurisdiction. Therefore, the
IAD’s reliance on Amin was an error in law.
[26]
The
Applicant submits that the IAD further erred in law by finding that the
geographical location of the talaq was not relevant. The Applicant contends
that geographic location is relevant to the question before the IAD because a
talaq divorce has no legal effect in Canada but may have legal
effect in jurisdictions which operate under Sharia law. A talaq divorce
performed in Canada is a nullity in Canada.
[27]
The
Applicant further states that the IAD’s statement to the effect that if the
Lebanese courts recognize the talaq it “should not matter” where it occurred is
confusing and imports a value judgment, instead of a judgement upon the law,
into its Decision. The IAD’s description of the talaq as being “recognized” by
Lebanon is not consistent with its conclusion that the divorce was heard and
determined in Lebanon. There is a
distinction between determining a divorce and merely recognizing a divorce
already determined.
[28]
The
Applicant also submits that the evidence shows that the Lebanese court
rubber-stamped the talaq divorce. It was only registered to give it legal
effect in Lebanon in order to
free the Respondent to re-marry for a second time in Lebanon.
Ontario Superior Court
Divorce
[29]
The
Applicant says that the IAD erred in law by failing to reconcile the
Respondent’s position on the appeal and the panel member’s finding concerning
the 2001 divorce granted to the Respondent by the Ontario Superior Court. The
Applicant contends that the Respondent’s conduct in seeking a divorce from the
Superior Court is cogent evidence that the Respondent knew that the talaq
divorce, which she registered in Lebanon, was not legal in Canada. It was also
evidence that it was not a “foreign divorce” capable of being recognized in
Canada.
[30]
The
IAD Decision contains no mention of the divorce granted by the Ontario Superior
Court, which was a significant piece of evidence that should have been addressed
in the reasons. This omission implies that the IAD ignored it and thus
committed a reviewable error that requires the intervention of the Court.
No Real and
Substantial Connection to Lebanon
[31]
The
Applicant finally submits (in written submissions at least) that, in the event
that the Respondent’s talaq divorce is a Lebanese divorce and constitutes a
foreign divorce, it cannot be recognized for the purposes of Canadian law because
the Respondent did not have a real and substantial connection to Lebanon.
[32]
The
Applicant did not rely upon this ground at the hearing of this application.
The
Respondent
[33]
The
Respondent submits that the IAD’s Decision is well-founded in fact and law. It
is also supported by the evidence and is not unreasonable. While the Applicant
may not agree with the conclusions of the IAD, the Applicant has failed to
demonstrate that the IAD’s assessment is perverse, capricious or made without
regard to the evidence or constitutes an error in law. The Court must defer to
the special expertise of the IAD and not interfere with its findings, unless
there is a perverse or capricious error or an express error in law.
Ontario Divorce
[34]
The
Respondent submits that since the Lebanese divorce is a legal divorce and
properly registered it can be recognized under Canadian law. The subsequent Ontario divorce is
irrelevant and does not change the legality of the Lebanese divorce if it meets
the requirements of Lebanese law and Canadian law.
[35]
The
Respondent says that an annulment or a divorce is all that is required, and
since the Respondent’s marriage ended on November 5, 1993, the Ontario divorce
which the Respondent obtained is irrelevant. The annulment/divorce in Lebanon ended the
marriage on a religious basis on November 5, 1993. The copy of the Lebanese
divorce states that it was “legalized in Beirut on Jan. 2,
2003.” Therefore, the failure to consider the Ontario divorce by
the IAD was a minor omission that did not affect the outcome of the case.
Islamic
Divorce
[36]
The
Respondent submits that the religious divorce, by itself, was not recognized by
Canadian law. However, the Lebanese Courts considered the matter and issued
their Divorce Order with reasons and a Divorce Certificate on May 13, 1999. A
third Lebanese Divorce document was signed by Sheik Hassan Kharoubi, Head
Clerk, and Sheikh Ali Srour Jaafari, Religious Judge of Saida.
[37]
While
Canada does not recognize religious divorces, the Respondent’s divorce in this
case was recognized under Lebanese law and registered, making the divorce legal
under Lebanese civil law and recognized as a legal civil divorce in that jurisdiction.
Therefore, it should be recognized in Canada.
[38]
The
Respondent also submits that the reasons for rejecting the Islamic divorce in
Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (Brit. C.A.) are
easily distinguishable from this case, as there was only a “bare religious
element” involved in Chaudhary. Here there was a review and ratification
of the divorce, a Divorce Order and a Divorce Certificate.
[39]
The
Respondent cites the British decision of El Fadl v. El Fadl, [2000]
1 F.L.R. 175 (U.K.) (El Fadl), which is mentioned in Jeremy Morley’s
article, Non-Recognition of Japanese Consent Divorces in the U.K., where
the Court recognized a Muslim divorce in Lebanon due to the fact that it had
been obtained by means of a “proceeding because of the role played by the
Sharia Court”:
Although the Sharia Court has no judicial
decision to make whether there is to be divorce or no, what occurred before it
with the assembly of the court, judge and clerk, and the duty to resort into
the register, having taken formal declarations, is properly described as
‘proceedings’ and the local law explicitly requires such proceedings as an
integral part of the divorce process.
[40]
The
Respondent submits that the El Fadl decision confirms that where a Lebanese
Court
recognizes a divorce by “means of a proceeding” the divorce should be
recognized. The Respondent says that it was clear in this instance that court
proceedings had taken place and that this was not a “mere registration” of a
previously granted Sharia religious divorce. Therefore, the Lebanese divorce
should be recognized under Canadian law as a legal foreign divorce.
[41]
The
Respondent also points out that both parties to the divorce had proxy
representatives at the proceeding and both parties consented to the divorce.
There is no evidence of fraud, as both parties participated in the proceedings,
had proper notice and consented to the divorce. There were no abuses of process
or other concerns about the divorce from either party.
[42]
The
Respondent stresses that the IAD had already considered and decided a case with
almost identical facts (except that it dealt with Sharia law from Pakistan rather then
Sharia law from Lebanon). In Bhatti v.
Canada (Minister of Citizenship
and Immigration), [2003]
I.A.D.D. No. 519 the IAD held as follows:
14. There
are three preliminary points about the present day approach to the recognition
of foreign divorces. The first is that while historically, the Canadian
approach to divorce was quite restrictive, the increased mobility of people
caused Canada and other countries
to re-examine their laws and policies in the latter half of the 20th century.
As noted by one writer:
In Canada...the present position vis-à-vis domestic divorces and
foreign divorces is such that the recognition of foreign divorces is conducted
in a more liberal and extensive fashion than the assumption of jurisdiction to
grant domestic divorces.
15. Secondly,
under common law jurisdictions, the question of recognizing a foreign divorce
is jurisdictional and not concerned with the grounds on which the divorce is
granted. Absent evidence of fraud, a denial of natural justice or a concern
with public policy, Canadian courts will not look into the grounds of the
divorce.
16 . Third, the common law rule of
"domicile" in determining recognition of foreign divorces has been
expanded to include consideration of a "real and substantial
connection" between the petitioner and the granting jurisdiction. Domicile
is a construct of the common law. At common law everyone has a domicile at
every point in his life and while one can have more than one residence at any
one time, one can only have one domicile.
17. One's domicile of origin is
determined at birth and while one can acquire another domicile, the domicile of
origin has a very strong hold on the individual. The presumption against a
change of domicile of origin requires cogent evidence on a balance of
probabilities to dislodge it. Castel observes that this enduring aspect of the
concept of domicile of origin often leads to absurd consequences and should be
rejected. Nevertheless, a person can acquire a domicile of choice when the
person establishes a residence in a country with a fixed and settled intention
to remain there permanently. At common-law the residence need not be for any
particular duration and residence is not a necessary element to maintain
domicile once it exists. The most important factor in determining the domicile
of choice is one's intention. The required intention involves the idea of
permanence.
18. In
1967 the House of Lords in the United Kingdom reviewed the whole subject of recognition of foreign
divorces and while concluding that domicile should remain the primary basis of
recognition of foreign divorces, introduced a new concept. A person's divorce in
a foreign jurisdiction could also be recognized if the person could demonstrate
a “real and substantial connection” to the granting jurisdiction. This concept
was later adopted by Canadian courts. McLeod observes that:
To attempt to define “real and substantial” categorically
is an almost impossible task which in the end removes the inherent flexibility
of the rule. The purpose of the rule is to do justice to the parties without
impairing the basic policy guidelines of the forum. This can be achieved whenever
the parties can show that there was valid reason for resorting to the courts of
the foreign country other than simply forum shopping.
[43]
The
IAD also made a similar finding in relation to a Sharia divorce in Pakistan in Amjad
v. Canada (Minister of
Citizenship and Immigration, [2005] I.A.D.D. No. 21 in which the
following finding occurs at paragraph 23:
23. The
panel finds that the documents tendered to prove the registration of the
divorce with Pakistani authorities have enough problems on their face and in
their origins that the panel is unable to conclude that the divorce was
registered as the appellant has recounted. Nevertheless, the panel finds that
the Talaq given by the appellant to his first wife, is sufficient to be
recognized as a valid foreign divorce under the applicable Canadian
legislation, because the appellant had a real and substantial connection to Pakistan when he obtained
the Talaq. Therefore, the refusal is found to be not valid in law. The panel
finds that the appellant was legally divorced from his first wife and was
eligible to marry the applicant when he did. The appeal is allowed.
[44]
The
Respondent also relies upon the Supreme Court of Canada case of Schwebel v.
Ungar, [1965] S.C.R. 148, which was cited in Amin, and which
involved a Jewish religious divorce that took place in Italy. The domicile of
both parties was Hungary. The Jewish religious divorce was recognized by
the State of Israel and deemed legal by the Supreme Court of Canada. The
Respondent also notes the Supreme Court of Canada case of Bruker v.
Marcovitz 2007 SCC 54 also recognized a Jewish religious divorce.
Real and
Substantial Connection
[45]
Finally,
the Respondent submits that the Divorce Act recognizes that other means
exist for recognition of foreign divorces, particularly in the form of section
22(3) of the Divorce Act. The divorce law that is relevant is Lebanese
law and whether one of the parties has a “real and substantial connection” to Lebanon. The
Respondent points out that both parties in the present case were born in
Lebanon and were Lebanese citizens and duly registered in Lebanon. In
addition, both were married in Lebanon and had a “real and
substantial” connection to Lebanon. Hence, they were
legally entitled to get divorced in Lebanon. The Respondent cites Indyka
v. Indyka, [1969] 1 A.C. 33.
[46]
The
Respondent submits that the IAD’s reasons are reasonable and based on fact. It was
open for the IAD to make a finding that the Respondent had a “real and
substantial connection” to Lebanon. The Lebanese divorce
was legal and so Canada is required to recognize legal foreign divorces “if
there is a real and substantial connection to the granting jurisdiction.” In
the view of the Lebanese lawyer, the Respondent had not been the wife of Mr.
Hammoud since November 5, 1993.
[47]
The
Respondent cites the Supreme Court of Canada decision of Powell v. Cockburn,
[1977] 2 S.C.R. 218 which discusses the validity of foreign divorces as
follows:
The grounds upon which a decree of divorce granted by one State
can be impeached in another state are, properly, few in number. The weight of
authority seems to recognize, however, that if the granting state takes
jurisdiction on the basis of facts which, if the truth were known, would not
give it jurisdiction the decree may be set aside. Fraud going to the merits may
be just as distasteful as fraud going to jurisdiction, but for reasons of
comity and practical difficulties, in the past we have refused to inquire into
the former. Even within the limited area of what might be termed jurisdictional
fraud there should be great reluctance to make a finding of fraud for obvious
reasons.
[48]
The
Respondent concludes by stating that a rejection of the spousal sponsorship in
this case on the basis that the Lebanese divorce did not comply with section
22(1) of the Divorce Act would be wrong in law. The IAD accepted that
the Respondent had “a real and substantial connection” to Lebanon and this was
a reasonable finding, since there was no law to overturn the determination.
ANALYSIS
[49]
At
the hearing of this matter in Toronto on February 11, 2009,
the Applicant notified the Court that the Minister did not intend to advance
the “real and substantial connection issue.” Consequently, this application
raises a single issue: Did the IAD err in law by concluding that the Respondent
had secured a “foreign divorce” under section 22(1) of the Divorce Act?
[50]
The
Applicant says that the IAD failed to appreciate the distinction between a
talaq divorce that was merely recognized in Lebanon and a divorce actually
granted by Lebanon under Lebanese law in accordance with legal proceedings in
that country. In other words, the Minister’s position is that mere recognition
of the Respondent’s talaq divorce that took place in Canada does not
meet the requirements under section 22 of the Divorce Act.
[51]
The
Minister also says that there was no evidence before the IAD to support a
conclusion that the Respondent had been granted a divorce in Lebanon and that,
in fact, the available evidence makes it quite clear that the talaq divorce
which the Respondent went through in Canada was simply registered in Lebanon so
that she could re-marry in Lebanon. In other words, what the IAD had before it
was a talaq divorce recognized by Lebanon, not a Lebanese divorce
that can qualify as a “foreign divorce” under the Divorce Act.
[52]
The
Minister says this amounts to an erroneous finding of fact by the IAD that
renders its Decision untenable.
[53]
The
Respondent’s position is, essentially, that the talaq religious divorce that
she went through in Canada was formally recognized by a Lebanese Court and by
the Government of Lebanon and, in the process, became a “foreign divorce” for
the purposes of the Divorce Act, thus rendering the IAD’s Decision
entirely reasonable and correct.
[54]
There
is no dispute that the Respondent went through a religious talaq divorce in
Ontario on November 5, 1993 before Mr. Sayyed Nabil Abbas, a Representative of
the Supreme Shiite Islamic Council in Canada. The problem arises
over what occurred when this talaq divorce was dealt with in Lebanon. There are
only three documents in the record that throw any light on the issue.
[55]
First
of all, there is a certificate issued by the Jaafari Religious Court of the
Republic of Lebanon showing a
divorce date of 05/11/1993, but which merely stamps the talaq divorce conducted
by Sayyed Nabil Abbas in Toronto.
[56]
There
is also a Divorce Certificate issued in response to the Respondent’s request to
be delivered of such a certificate by the Honourable Jaafari Religious Judge of
Saida in Lebanon on the basis
of a “divorce certificate … registered before your court on May 13, 1999… .”
[57]
So
it seems clear that the Respondent obtained a “divorce certificate” in 1999
based upon the talaq divorce she had gone through in Toronto in 1993.
This certificate is signed and sealed by Sheikh Ali Srour, the Jaafari
Religious Judge of Saida.
[58]
The
petitioner for the certificate is HAFEZ ALI FARHAT who is the husband of Hoda
Hazimeh and the request is for the certificate:
To be returned to the petitioner with the
certificate that the divorce of HODA HUSSEIN HAZIMEH and ALI KHALIL HAMMOND has
been irrevocable on November 5, 1993 before Sayyed Nabil Abbas, the
representative of the Supreme Shiite Islamic Council in Canada. The said
divorce was registered before the Jaafari Religious Court of Saida on May 13,
1999, basis #483, register #456.
[59]
So
this makes it clear that the talaq divorce was “irrevocable” on November 5,
1993 when it took place in Toronto and that it was simply registered in Lebanon on May 13,
1999.
[60]
These
documents provide no indication concerning the legal effect of registration but
they do suggest that the state of Lebanon recognized a talaq
divorce that took place in Canada on November 5, 1993.
[61]
The
Respondent says that the fact of registration in Lebanon on May 13,
1999 rendered the divorce a Lebanese foreign divorce for the purposes of
section 2 of Canada’s Divorce Act. But there is no evidence regarding this
consequence. On its face, the documentation suggests that Lebanon has
recognized a talaq divorce that took place in Canada in 1993. That would mean
that the Respondent, under Lebanese law, is free to re-marry in Lebanon. But it does
not necessarily mean that she has obtained a Lebanese divorce for purposes of
Canadian law.
[62]
The
Respondent herself provided the IAD with a legal opinion from Mr. Hussein Sobhi
Kovkomaz, an Appeal Attorney-At-Law in Saida. He says that the certificate No.
106 dated April 5, 2006 issued by the Jaafari Religious Court of Saida verifies
that the Respondent:
…travelled to Canada on Otober 13, 1993 where she was
divorced from Mr. Ali Hammond, according to the certificate issued by the Jaafari Religious Court on November 5, 1993 at Canada
and before the representative of the Higher Shiite Islamic Council, Mr.
(Sayyed) NABIL ABBAS. The said divorce is final and immediately effective as of
the date it had taken place in (sic). Consequently, Mrs. HODA HAZIME hasn’t
been the wife of Mr. ALI HAMMOND since November 5, 1993 pursuant to the Islamic
Shari’s (rulings) and the Lebanese laws in effect.
[63]
As
I read this opinion, it makes it clear that, as far as Lebanese law is
concerned, the Respondent was divorced in Canada in 1993 under
the talaq divorce. Lebanon has simply confirmed that divorce and
recognized it for the purpose of Lebanese law. I have no evidence before me to
suggest that the talaq divorce that took place in Canada has somehow become a
Lebanese divorce. It remains a talaq divorce that took place in Canada and has been
registered and recognized in Lebanon. That talaq divorce,
recognized by Lebanon, is not a divorce that Canada recognizes.
[64]
The
IAD addressed this problem by referring to Justice Barnes’ decision in Amin
and concluded as follows:
18 The problem with the Bhatti
decision is that it does not clearly indicate whether the talaq divorce in
issue there had been registered in accordance with the Muslin Family Law
Ordinance (1961). On one reading, the decision suggests that statutory
compliance had been met in that case as can be seen from the following passage:
7. In support of his position, the appellant
provided a letter from lawyer in Pakistan, a Statutory Declaration and opinion
letters from two family law lawyers in Toronto. The divorce deed executed in June 1996 is an
extra-judicial divorce in that it is a talaq or a divorce under Muslin law. The
letter from Samina Khan, who is a lawyer practicing before the High Court in
Islamabad and who acted for the appellant with respect to his 1996 divorce,
states that divorce in Pakistan is governed by the Muslim Family Law Ordinance,
1961. The Muslim Family Law Ordinance, 1961 recognizes the talaq form of
divorce. In the lawyer's view, the appellant's divorce deed met the substantive
and procedural requirements of the law.[Footnotes omitted]
19 There are statements in
the Bhatti, above, decision which are difficult to accept. For instance,
the Board interpreted section 22(1) of the Divorce Act, R.S.C. 1985 c. 3
(2nd. Supp.), requiring that a foreign divorce be granted “by a tribunal or
other authority having jurisdiction”, as being met by an extra-judicial divorce
such as the Muslim talaq. As far as I can tell from the record before me and
from relevant legal authorities, the pronouncement of talaq is nothing more
than a unilateral declaration of divorce made by the husband, usually in the
presence of witnesses, and sometimes recorded in a private divorce deed. Such a
process is clearly insufficient to fulfill the requirements of section 22(1) of
the Divorce Act and, to the extent that the Bhatti decision suggests
otherwise, it is, with respect, wrong: see Chaudhary v. Chaudhary,
[1984] 3 All E.R. 1017 (Brit. C.A.).
[65]
So
the issue comes down to whether Lebanon’s mere recognition of a talaq divorce that
took place in Canada and that has no legal effect in Canada created a foreign
divorce that is recognized in Canada. In Amin, I think that Justice
Barnes presented the real basis of his decision in the passage cited by the IAD
and which is referred to in paragraph 8 above. I note that in Bevkovits v.
Grinberg, [1995] 1 FLR 477 a Jewish Get written in London, England under
Jewish ecclesiastical law and delivered to the wife at the Robbinical Court in
Israel was held to be effective as an Israeli divorce but was not entitled to
recognition in England.
[66]
In
my view, what is missing in the present case is a “divorce granted” pursuant to
a law other than Canadian law by an authority having jurisdiction to do so.
[67]
The
recognition and registration of a talaq divorce that took place in Canada cannot, in
my view, produce a divorce granted pursuant to a law other than Canadian law.
If simple registration in Lebanon would suffice, then it would turn a talaq
divorce that Canada does not
recognize into a divorce that Canada must recognize.
[68]
In
my view, then, the Applicant is correct. There was no evidence before the IAD,
or the IAD misconstrued the evidence before it when it found that the divorce
in this case was not heard and determined in Ontario but in Lebanon.
[69]
This
matter should be remitted to the IAD for reconsideration in accordance with these
reasons.
[70]
Counsel are requested to serve and file
any submissions with respect to certification of a question of general
importance within seven days of receipt of these Reasons for Judgment. Each
party will have a further period of three days to serve and file any reply to
the submission of the opposite party. Following that, a Judgment will be
issued.
“James Russell”
Judge
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