Courts recognizing foreign divorces are not uncommon. But motion judges need to “distinguish between the granting and the registering of a divorce,” and to identity a “real and substantial connection” for the parties at the time of a divorce, the Ontario Court of Appeal held in Abraham v. Gallo 2022 ONCA 874, which was released on Dec. 15.

The decision allowed Sharon Fahmy Abraham's appeal of Ontario Superior Court Justice Robert MacLeod's ruling, .Abraham v. Gallo 2022 ONSC 1136. In it, he held that her former husband's unilateral and exclusive right to end their marriage in 2016 under Islamic law through a bare talaq divorce (by which he privately said three times that their marital union was dissolved), was a valid foreign divorce under the federal Divorce Act since he registered it with the Egyptian embassy in Ottawa.

Justice MacLeod's ruled that since Abraham was a former rather than a current spouse, she could no longer claim spousal support from Waleed Rashad Gallo, her ex-husband, and that the court lacked jurisdiction to grant it.

'"In my view, the motion judge erred in law in failing to distinguish between the granting and the registering of a divorce," Court of Appeal Justice Lois Roberts wrote in her reasons agreed to by Justice Peter Lauwers and Gary Trotter.

"In the circumstances of this case, registering the divorce with the Egyptian embassy, [Egypt's] Civil Affairs Registry and the Ministry of Justice in Egypt amounted to no more than the evidentiary attestation of the respondent's unilateral pronouncement of a bare talaq."

Justice Roberts said that Justice MacLeod “also erred in law by recognizing the registered bare talaq divorce as a valid divorce."

Neither of the parties had a "real and substantial connection to Egypt at the time of the divorce," the court held in setting aside Justice MacLeod's order and allowing Abraham to proceed with her application for relief, including her claim for spousal support.

Family law lawyer Michael Stangarone, a partner with Toronto-based MacDonald & partners LLP who led the appeal on Abraham’s behalf, said the Court of Appeal released “an important decision” by “making it pretty clear” that the requirement for a foreign divorce to be recognized under Canadian law.

"Registering a divorce is different than granting it," he said.

Justice Roberts said that "bare talaq divorces, without more, have not been recognized as valid in Canada."

"While a bare talaq divorce that is performed in accordance with customary requirements is sufficient to establish the validity of the divorce under Islamic religious law, it does not comprehend the civil law component of adjudicative or official oversight 'to address important public policy issues which can arise out of the domestic recognition of informal or religiously based divorces,'" she wrote, citing such past decisions as one from the Federal Court, Amin v. Canada (Minister of Citizenship and Immigration) 2008 FC 168.

"Those public policy issues include the potential for abuse and lack of natural justice (including lack of notice) because of the unilateral nature of a bare talaq divorce that, as confirmed by the expert evidence in this case, is effective under Islamic law upon the husband's third pronouncement of his intent to divorce," Justice Roberts wrote.

"Despite its effect on the wife's status and her rights to corollary relief, the wife has no participatory role and cannot stop the divorce from coming into effect."

Stephen Kirby, an associate with MacDonald & Partners who worked with Stangarone on Abraham's appeal, said the appellate court acknowledged that the divorce "was not something that was granted by a formal body, but was something recognized after the fact."

"The court said there is a distinction between a foreign divorce order made by an adjudicative body and a foreign embassy registering a divorce that involved no more than a recitation of words," he said.

"It would have been different had [Gallo] gone to an Egyptian court and obtained an order instead of going to the embassy and saying to officials there that he had sent text messages to [Abraham] saying that he declared three times that [he and Abraham] were divorced, and that they should register it with the Egyptian government to know they're divorced."

Stangarone said that the ruling was also consequential in its finding on the test for a real and substantial connection under common-law principles.

As Justice Roberts stated: "The parties did not have a real and substantial connection to Egypt at the time of the divorce, so the divorce was ineffective for Canadian purposes."

Although they were both born in Egypt, neither Abraham nor Gallo had lived in or visited Egypt in over 20 years and had lived in Ontario since 2002.

Justice Macleod concluded that they had a real and substantial connection since the test to determine it, he ruled, "sets a low bar" and "does not require recency."

He said the parties married in Egypt, where Gallo spent his entire childhood and served in the army.

Abraham also has a bank account there, Justice Macleod noted. (The appellate court noted there "was no evidence" that she held such an account in Egypt.)

"Respectfully, the motion judge's formulation of the test for real and substantial connection at the time of the divorce incorrectly diluted the requirement that '[t]he connection to the foreign jurisdiction must be a substantial one,'" said Justice Roberts, referring to the Supreme Court of Canada's decision in Beals v. Saldanha 2003 sec 72 regarding a cause of action and a foreign court.

"The motion judge put too much weight on the historical connections between the parties and Egypt. While past connections to a jurisdiction may be considered, the focus of the real and substantial connection analysis should be on the parties' real circumstances at the time of the divorce, not on historical or transitory factors," she wrote in her reasons.

"This approach is in keeping with this court's guidance that the location of the parties' 'real home' or 'ordinary residence' is a significant presumptive connecting factor informing the real and substantial connection analysis in the context of family law proceedings and marriage breakdown."

Justice Roberts added that Justice MacLeod's "application of the test for real and substantial connection undermines its policy underpinnings," which she said, "seeks to exclude artificial bases of jurisdiction and prevent forum shopping."

"Here, notwithstanding the parties' residence in Ontario, the respondent engaged the summary registration process of the Egyptian governmental authorities instead of commencing proceedings in Ontario, as the respondent himself had done after the first separation in 2012," she said.

"It was open to the motion judge to find that the respondent's choice of the Egyptian registration process did not give rise to duress as alleged by the appellant," Justice Roberts wrote in her reasons.

"However, because [Justice MacLeod] misapplied the real and substantial connection test, he did not step back and consider, as he should have done, whether the respondent's choice amounted to impermissible forum shopping. In my view, it did.''

Stangarone said that with its ruling, the Appeal Court has provided members of the family law bar with guidance "in terms of how you determine a real and substantial connection."

Kirby said the decision "clarifies both the limits to which somebody can rely on a foreign divorce to try and cut off someone's claim to spousal support, and the law with respect to the jurisdictional test in family law cases."

In its decision, the Court of Appeal said that both parties should return to the Superior Court for a case-management conference "to deal with next steps," including whether Gallo should be granted leave to amend his answer to claim a divorce.

Family law lawyer Rachel Williams, a partner with Morrison Williams Professional Corp. in Oakville,

Ont., who represented Gallo, did not respond to a request for comment on the appellate court ruling.

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