International Forum Shopping To Avoid Support Obligations: Not So Fast In Ontario

In a recent decision, Vyazemskaya v. Safin, the Court of Appeal for Ontario grappled with the complex issue of recognizing a foreign divorce in Canada and its implications on spousal support entitlements. This "fresh off the press" decision sheds light on the intricate interplay between international law and domestic family law provisions. Importantly, it stands for the proposition that engaging in unfair forum shopping tactics to avoid spousal support obligations will not be permitted.

FACTUAL BACKGROUND

The parties were married in Russia in 2012 and later immigrated to Canada with their child. After unsuccessful efforts to negotiate a separation agreement in 2019, the husband applied for a divorce in Russia. This was contested by the wife, who maintained that divorce proceedings should take place in the then couple's city of residence, Toronto.

The crux of the matter lay in the differences between Russian and Canadian laws regarding spousal support. Under Russian law, spousal support is only available in limited circumstances, which did not apply to the wife at the time of divorce. This raised concerns for the wife, who stood to lose her entitlement to spousal support if the Russian divorce was recognized in Canada. Why was this the case? As per the court's decision in Okmyansky, Ontario courts do not have jurisdiction under the Divorce Act to order spousal support or corollary relief unless the parties have been divorced under that Act. Since the parties here were not divorced under that Act, spousal support was not available on that basis. Although not raised by the parties, spousal support would also not be a possibility under the Family Law Act, because its provisions have been interpreted by the court such that former spouses cannot claim support. Again, while not raised by the parties, if the divorce granted by the Russian justice of the peace were to have been recognized in Canada, the parties would have been former spouses, thereby disentitling any support under the Family Law Act.

TRIAL DECISION

The trial judge, after examining the circumstances, refused to recognize the Russian divorce. She found that the husband had engaged in unfair forum-shopping tactics by seeking a divorce in Russia to avoid his spousal support obligations under Ontario law. This decision was based on principles established in the Supreme Court of Canada ruling in Beals v. Saldanha. Beals was a commercial case that concerned the enforceability of foreign damage awards in Canada. The Court of Appeal recognized (at paragraph 24) that "it is possible that some adaptation of the principles may be appropriate when moving from a commercial to family law context."

COURT OF APPEAL DECISION

The Court of Appeal upheld the trial judge's decision, recognizing the distinction between recognizing foreign divorces based on repugnant laws versus repugnant facts. The court affirmed that unfair forum-shopping tactics could constitute grounds for refusing to recognize a foreign divorce, particularly in family law matters where principles of partnership and equality are paramount. The decision thus left it open for the wife to claim spousal support from the husband, an issue not before the court.

The case also highlights the limitations of the current legal framework in Ontario, where former spouses cannot seek spousal support under either the Divorce Act or the Family Law Act following a foreign divorce. Notably, although not an issue that was raised by either party, the court noted (at paragraph 36) that a "law that leaves a vulnerable party entirely without compensation for the financial consequences of marriage breakdown might be contrary to Canada public policy."

TAKEAWAYS

This decision underscores the importance of considering the circumstances surrounding the obtaining of a foreign divorce and the need for a fair and equitable resolution of disputes in family law matters. While recognizing the complexity of international legal issues, it also raises questions about the adequacy of existing laws to address the needs of spouses in such situations.

This case serves as a reminder of the ongoing dialogue and evolution within family law to adapt to changing societal norms and ensure fairness and justice for all parties involved in marital breakdowns, regardless of jurisdiction. The court has made clear that engaging in unfair forum shopping tactics to avoid spousal support obligations will not be tolerated.