Registering talaq under Islamic law is not granting of divorce: Ontario Court

Parties have no real, substantial connection to Egypt during divorce, ruling says

Registering talaq under Islamic law is not granting of divorce: Ontario Court

The Egyptian embassy’s registration of a bare “talaq” divorce did not amount to granting a divorce such that a woman could no longer claim spousal support from the man she married, the Ontario Court of Appeal said recently.

The parties were born in Egypt and were adherents of Islam. They resided in Ontario starting in 2002. The appellant mother principally cared for their two children, who were born in Ontario. The parties separated in 2016 after being married for over 15 years. The children continued living with the mother in Kitchener.

In December 2016, the respondent father sent the mother a text message stating that they were divorced. Both parties agreed that this message represented the completion of a divorce or talaq under Islamic law. In late 2017, the father started a relationship with another woman.

In January 2018, the parties visited the Egyptian embassy in Ontario to register the bare talaq divorce. They filed the registered declaration of divorce with the Egyptian civil affairs registry. Ontario’s registrar general issued the father a marriage licence based on the divorce declaration. The father married his partner in June 2019 and lived with her and her children in Oakville.

In November 2019, the mother brought an application seeking a declaration that the registered bare talaq divorce was unenforceable, an order for spousal and child support, exclusive possession of the matrimonial home, and a division of net family property. She filed a summary judgment motion asking for declaratory relief and spousal support.

The motion judge dismissed the summary judgment motion. He accepted that a bare talaq divorce was invalid but determined that it was a presumptively valid foreign divorce under s. 22(3) of the Divorce Act since it was later registered with Egyptian governmental agencies. The mother was not entitled to spousal support, the judge said.

Divorce not granted: appeal court

In Abraham v. Gallo, 2022 ONCA 874, the Ontario Court of Appeal allowed the appeal, set aside the motion judge’s decision, and said that the mother’s application for relief, including spousal support, could proceed.

First, the Court of Appeal ruled that the motion judge erred by failing to distinguish between the granting and the registering of a divorce and by treating the registered bare talaq divorce as presumptively valid.

The Egyptian governmental authorities only authenticated the divorce and did not grant it, the appellate court held. Registering the divorce with the Egyptian embassy, its civil affairs registry, and its justice ministry only amounted to the evidentiary attestation of the father’s unilateral pronouncement of a bare talaq, the court said.

There was no expert evidence that the Egyptian governmental agencies were divorce-granting authorities, the appellate court noted. The Ontario government’s issuance of a marriage licence was also not a recognition that the registered bare talaq divorce was a valid foreign divorce decree granted by a competent authority that was presumptively valid under common law, the court added.

Next, the Court of Appeal determined that the motion judge erred by recognizing the registered bare talaq divorce as a valid divorce under s. 22(3) of the Divorce Act in line with conflict of laws and common law principles since the parties had no real and substantial connection to Egypt at the time of the divorce, which was necessary to give it substantive effect in Ontario.

The judge put too much weight on the historical connections between the parties and Egypt, the appellate court explained. Just because the parties had substantial connections to Egypt decades ago, this was not enough to rebut the unchallenged and overwhelming evidence that the parties had no real and substantial connection to that country during the divorce, the court said.

Both parties worked, lived, had their children, raised them, and maintained their matrimonial home in Ontario and thus set down deep roots in this province, the appellate court concluded.

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