When Will Canada Recognize a Foreign Divorce?

If you were divorced outside of Canada, you might assume that your divorce is automatically valid here.  That’s not always the case. 

Canadian law has specific rules around when a foreign divorce will be recognized  and whether you divorce is recognized can have important consequences.  For example, if your divorce is not recognized, then you cannot re-marry.  Conversely, once a foreign divorce is recognized in Canada, you can no longer claim spousal support under the Divorce Act or the Family Law Act in Ontario.

The following provides an overview of how Canadian law assesses and recognizes foreign divorces with a particular focus on talaq divorces.

The Basic Rule

Section 22 of the Divorce Act sets out when a foreign divorce is recognized in Canada.  Subsection 22 (1) reads as follows:

            Recognition of a foreign divorce

22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.

Subsection 22 (3) preserves the common law bases for recognizing a foreign divorce in Canada.  At common law, recognition depends on whether the foreign authority that granted the divorce had a legitimate, non-arbitrary basis for assuming jurisdiction, having regard to Canadian jurisdictional principles.  For example, Canada may recognize a foreign divorce granted by a jurisdiction where the parties were “domiciled” or to which the parties had a “real or substantial connection”.

Where a foreign divorce satisfies a common law ground for recognition, a divorce is presumptively valid.  In other words, it will be considered valid unless proven otherwise.

There are, however, limited grounds on which Canada may refuse to recognize an otherwise valid foreign divorce.  These include situations where a party did not have notice of the divorce proceedings or where the foreign divorce is contrary to Canadian public policy.

Recognition of Talaq Divorces in Canada

Whether Canada recognizes talaq divorces has been the subject of considerable jurisprudence.  In Sonia v. Ratan, 2024 ONCA 152, the Ontario Court of Appeal adopted the following description of a “bare” talaq from the English decision in Chaudhary v. Chaudhary, [1984] 2 All. E.R. 1017 (C.A.):

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 … 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 recognized by, the state in any capacity at all, even if 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 recognized in some states in the Far East.

In essence, a “bare” talaq is a unilateral, private act with little or no procedural safeguards or oversight.

Bare Talaq Divorces Are Not Recognized

Canada does not recognize “bare” talaq divorces, even when they are later registered with a foreign authority. 

In Abraham v Gallo, 2022 ONCA 874, the parties – originally from Egypt but long resident in Canada – were purportedly divorced after the husband sent the wife a text message in which he stated they were divorced, which was the completion of the talaq.  Over a year later, the parties separately went to the Egyptian Embassy in Ontario to register the divorce. 

The Ontario Court of Appeal refused recognition, emphasizing that merely registering a talaq divorce is insufficient:

In my view, the motion judge erred by failing to distinguish between administrative registering of a divorce and the granting of a divorce.  The word “granted” is used throughout s. 22, including in s. 22(3), making it clear that for a foreign divorce to be recognized by Canadian law, it must be “granted” and not merely “registered” or “recognized” by the foreign authority.  Here the undisputed evidence is that the divorce occurred – according to Islamic law – upon the husband’s third pronouncement of the talaq and was merely authenticated by the Egyptian authorities; accordingly, no party of s. 22 applies.

The Court also noted that the parties lack a real and substantial connection to Egypt at the relevant time.

Talaq Divorces with Court Involvement May Be Recognized

Where a talaq divorce involves meaningful state or judicial oversight, Canadian courts may recognize it.

In Mehralian v. Dunmore, 2023 ONSC 1044, the father obtained a religious talaq divorce in Oman.  He then brought proceedings before an Omani court to have that religious divorce formally recognized, among other things.  Importantly, the mother participated fully in those court proceedings.

The Ontario Superior Court of Justice considered whether the Omani divorce is recognized in Canada.  The Court reaffirmed that Canadian law does not recognize “bare” talaq divorces – even when formally registered by a foreign government office. 

However, this case went further than a bare religious pronouncement – with or without a simple registration.  Because both parties participated in the Omani court process, the mother effectively accepted (or “attorned to”) the jurisdiction of the Omani courts.  The divorce was therefore not purely private in nature; it involved meaningful judicial oversight and participation by both spouses. 

As a result, the Court concluded that the divorce should be recognized in Canada.

Talaq Divorces with Procedural Safeguards May Be Recognized

Similarly, in Sonia v. Ratan, 2024 ONCA 152, the parties obtained a talaq divorce in Bangladesh.  After the pronouncement of the talaq, the husband provided written notice of the divorce to both the wife and to the Chairman of the local municipality, as required by law.  Upon receipt of the notice, the Chairman was obligated to constitute an Arbitration Council to attempt reconciliation between the parties.  The divorce did not take effect immediately – rather, it became final only after a 90-day waiting period, during which the talaq was not revoked and the parties did not reconcile.

The Ontario Court of Appeal considered whether the divorce is recognized in Canada.  In doing so, the Court re-affirmed that “bare” talaq divorces are not recognized in Canada on public policy grounds.  As the Court explained, such divorces are problematic because they do not require notice, are unilateral in nature, take effect immediately upon pronouncement, exclude any participatory role for the wife, and provide no mechanism for her to challenge or prevent the divorce.

However, the Court emphasized that not all talaq divorces fall into this “bare” category. Where there is meaningful procedural protection such as notice, an opportunity to participate, and some form of official or adjudicative oversight the divorce may be consistent with Canadian public policy.

In this case, those safeguards were present. The wife received notice, had an opportunity to be heard through the Arbitration Council process, and the divorce was subject to a 90-day waiting period before becoming final. As a result, the Court concluded that the divorce was not a “bare” talaq and did not offend Canadian public policy. Accordingly, the divorce was recognized in Canada.

If you are unsure whether your foreign divorce will be recognized in Canada, it is important to get legal advice before taking your next steps. Speaking with an experienced family lawyer can help you understand your rights and avoid unexpected issues with remarriage or support claims.