Obtaining Authorization for Marriage from the Ministry of Government and Consumer Services
To obtain authorization for marriage from the Ministry of Government and Consumer Services you must provide them with a foreign divorce opinion letter. A foreign divorce opinion letter is a legal document provided by a licensed Ontario Lawyer validating a Divorce Order/Decree issued outside of Canada. To demonstrate that you have the capacity to remarry in Canada, you must prove that you are not married to another individual inside or outside of Canada. Polygamous marriages are not considered legal in Canada. If you have been divorced in a foreign jurisdiction, you must show that your divorce is, in fact, genuine and valid. A legal opinion letter will confirm that your foreign divorce or annulment is legal and that you have the capacity to enter another marriage. An opinion letter can only be issued by a lawyer licensed by the Law Society of Ontario.
If you find yourself unsure about the validity of your foreign divorce or need an opinion letter, you can contact RPB Ottawa Divorce Lawyers to book a consultation with our experienced team.
Foreign Divorces
Canada is known as a safe haven for new immigrants. Canadian diverse culture has encouraged people from all over the world to move to Canada and build a new life for themselves and their families. However, life as an immigrant comes with many uncertainties and unique challenges. In addition to the emotional obstacles that come with moving to a new country, there are also procedural challenges that newcomers face after relocation. Assuring that your marital status is correctly determined by Canadian law is an example of such a challenge. Fortunately, the Canadian government has implemented rules and laws to make the process of recognition clear and simple for immigrants.
Does Canadian Law Recognize Your Foreign Divorce?
Will your foreign divorce be recognized in Canada, or will you have to go through the divorce process again after relocation? If you have been divorced before moving to Canada, your divorce will most likely be recognized by Canadian law. Under s. 22 (1) of the Divorce Act, “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.”
Canadian law does recognize your foreign divorce under certain circumstances. For your foreign divorce to be considered valid, both parties to the divorce must have resided in the country where they obtained the divorce for at least one year before the start of the divorce proceedings. If neither of you lived in the country for a year, the person who applied for the divorce must demonstrate that they have a “real and substantial connection” with the country. If they can prove the connection, your divorce may be recognized by Canadian law as valid, despite not meeting the residency requirement. A few examples of a “real and substantial connection” are if you are originally from that country and you returned there after the divorce or you own property or spend a lot of time in that country.
In such cases, you might need to prove to the court that your connection to the jurisdiction that you obtained your divorce from is, in fact, real and substantial. It should only be in very rare circumstances that a foreign divorce properly obtained pursuant to the laws of that jurisdiction should not be recognized as being valid. Since the House of Lords decided Indyka v. Indyka in 1969, a real and substantial connection between the couple and the country granting the divorce has been the principal basis upon which Canada recognizes a foreign divorce. Recent jurisprudence suggests that the real and substantial connection test applies to either the petitioner or the respondent. As elaborated in Canadian Conflict of Laws, 6th ed.: “Although ordinary residence is a sufficient real and substantial connection at common law, one would anticipate that it might be slightly more difficult to have a foreign decree recognized in Canada on the basis of ordinary residence of less than a year since at common law no particular length of ordinary residence is necessary, whereas the Divorce Act requires a period of one year immediately preceding the commencement of the proceeding in the foreign country. However, where a divorce has been granted in a place in which the petitioner had resided for substantial periods of time in the past, the real and substantial connection might be established upon returning for less than one year.”1
Furthermore, whether a party was reluctant to participate in a foreign divorce proceeding or whether they felt “duress” are rarely crucial factors in recognizing the divorce. As it was emphasized in Jahangiri-Mavaneh v. Taheri-Zengekani, 2003 CanLII 1962 (ON SC), there is no authority for the proposition that lack of consent may operate to invalidate a foreign divorce. Even in Canada, a party may secure a divorce unilaterally after a year of separation, and it is irrelevant whether the other party consents.
There are a few limited circumstances that could result in a foreign divorce not being recognized in Canada. Although not very common, there is a possibility that Canadian courts may refuse to recognize a foreign divorce if a party to the divorce did not receive notice of the divorce proceedings in the foreign country or where the family law regime on children, support, and property division is significantly different from Canada and hence contrary to Canadian public policy. Circumstances in which the foreign court did not utilize the proper jurisdiction to adjudicate the issues, often because one or both of the parties were not resident in that jurisdiction or where fraud was present, can also lead to the refusal of the foreign divorce.
Do You Need to Register Your Foreign Divorce in Canada?
You do not need to register your foreign divorce in Canada. In fact, there is no such proceeding in the Canadian legal system. However, authorization from the Ministry of Government and Consumer Services is necessary in order to remarry in Canada. Before you can get a marriage license in Ontario, you must get authorization from the Ministry of Government and Consumer Services if you have obtained your divorce in another jurisdiction outside of Canada. To get the authorization, you must have the following documents: a Completed Marriage License Application; Statement of Sole Responsibility for your divorce, signed by you and your new partner; An original or court-certified copy (certified by the proper court officer in the place the divorce or annulment was granted) of the divorce decree or annulment. If these documents are in a language other than English or French, you must include a translated copy and an affidavit sworn by a certified translator; and a foreign divorce opinion letter or a legal opinion letter that can be obtained from a lawyer, giving reasons why the divorce or annulment should be recognized in the Province of Ontario.2 The same procedure applies to foreign annulments.
If you were married under a foreign jurisdiction and a Canadian jurisdiction, you must start the divorce process in both jurisdictions simultaneously. In order to avoid delays and unnecessary expenses, it is recommended to obtain legal advice before commencing your divorce proceeding.
1 Nowacki v. Nowacki, 2014 ONSC 2052 (CanLII).
2 Note: The information provided in this text is for informational purposes only and should not be considered legal advice. It is always recommended to consult with a qualified lawyer for individual legal concerns and specific guidance regarding your situation.
