Ontario court says Syria lacked jurisdiction to grant couple's divorce

An Ontario court has ruled that a divorce granted in Syria to a couple who had not lived there in two decades will not be recognized in the province, in part because divorce proceedings in that country are unfair to women.

Superior Court Justice Julie Audet found Syria did not have jurisdiction to grant the divorce, which was sought by the husband, based on rules laid out in Canadian common law.

Audet also found that even if Syria had jurisdiction, the divorce should not be recognized in Ontario on the grounds that the wife was "denied natural justice" in the Syrian divorce process.

"It is not disputed that pursuant to the laws of Syria, the wife does not have the ability to contest the granting of the divorce: her only right is to try and convince her husband to reconcile," the judge wrote in a ruling released last week.

"I am of the view that a process which leaves one party with absolutely no voice and no ability to defend oneself with regards to his or her own marital status, which in turn leads to that party losing significant legal rights in his or her country of residence, seriously contravenes the principles of natural justice upon which our judicial system is built."

While still relatively rare, such issues are being raised in court more frequently in recent years due to population mobility, according to Nicholas Bala, a law professor at Queen's University who specializes in divorce and family law.

"This decision is consistent with Canadian decisions that are reluctant to allow what essentially was a marriage that had significant connections to Canada ... to obtain a divorce (abroad) that really strips the woman of all of her rights," he said.

"Generally speaking, we want to avoid forum-shopping," where someone begins legal proceedings in a jurisdiction deemed favourable to them, Bala said.

The couple, a man and woman who grew up in Syria, were married in Damascus in 1988 but moved to Kuwait the following year and then to Canada in 1995, according to court documents.

Though both were physicians when they met, the woman chose to stay at home with their two children, while the man pursued his career but was unable to pass the tests that would allow him to practise medicine in Canada, the documents say.

As a result, the family moved to the United Arab Emirates in 1999 so he could work as a doctor, but in 2006 he accepted a position in Singapore, the documents say. His wife, however, was not prepared to move there so the couple agreed she and the children would return to Canada.

In 2008, the man told his wife he was filing for divorce through the Syrian courts. Sometime later, he gave her a copy of the decree of divorce issued by Syrian authorities, the documents say.

The man remarried in 2009 and continues to live in Singapore, the ruling says. He still works as a physician, earning the equivalent of C$600,000 a year, while the woman works part-time earning minimum wage, the decision says.

From roughly 2006 through the summer of 2014, he sent her about $4,500 per month to support her and the children, the document says. He also paid their children's university tuition but reduced the support payments when one child graduated and ended them altogether when the second did.

He told the woman it was now their children's turn to support her, prompting her to turn to the courts and file for spousal support.

In her application, the woman argued the divorce should not be recognized because neither of them had lived in Syria since 1989, and neither had a real and substantial connection to that country at the time the divorce was sought.

She also argued the divorce was not properly obtained in Syria because she was not notified of the proceedings, nor was the Syrian court advised that she and the children lived in Canada.

"She states that the husband chose to file for divorce in Syria for the sole purpose of circumventing his obligation to support her," as the laws in Syria limit the length of spousal support and give wives no opportunity to object, the document says.

The husband, meanwhile, argued Syria does not require parties to live there for a divorce to be granted, and said both of them had a real and substantial connection with the country by virtue of being born, raised, educated and married there, as well as having relatives in the country.

He denied that he failed to properly notify his wife of the divorce proceedings and argued she chose not to file her objections with the Syrian court, and in fact appeared to accept the divorce.

In her ruling, Audet said the fact that they were born, raised and married in Syria wasn't enough, nor was the fact that their extended families still live there, given that neither party has had any active involvement in the country for two decades.

She also ruled the wife had not, in fact, accepted the jurisdiction of the Syrian authorities to grant the divorce.

"She knew that there was nothing she could have done to prevent the divorce from being granted in Syria in any event, and she did not seek the enforcement of her rights before the Syrian courts," Audet wrote.

The ruling means the woman can now proceed with her application for spousal support.

This report by The Canadian Press was first published Nov. 14, 2019.