Intestate Succession in Ontario provides for a preferential share of the estate to the surviving spouse. If there are no children, the surviving spouse receives the whole estate. If there is one child, the estate is allocated between that child and the spouse. If there is more than one child, the spouse receives a third and the children share two thirds of the estate.
Of course, the entitlement of the spouse hinges on the fact of a marriage. If the marriage has been terminated by a divorce, the surviving spouse receives no entitlement on an intestacy. In the case of a foreign divorce, scrutiny may be brought to bear on whether the divorce will be recognized by an Ontario Court. If it is not recognized, it can be seen that a surviving spouse has a lot to gain.
Although not an estate case, the recent decision of the Ontario Court of Appeal in Sonia v. Ratan is informative and provides an excellent overview of this area of the law.
Sonia and Ratan were married in Bangladesh in 1998, thereafter, lived together in Bangladesh and had three children. In 2015, Ratan and the children obtained Canadian landed immigrant status. In January 2016, Ratan applied to sponsor his wife Sonia to become a permanent resident. In August 2016, Ratan and the children moved to Canada. Sonia remained in Bangladesh.
On November 17, 2016, Ratan personally delivered a written notice of divorce to Sonia in Bangladesh. On February 24, 2017, Sonia came to Canada. On March 17, 2017, the Bangladesh divorce became effective.
On January 7, 2020, Sonia filed an application in Ontario for a divorce and corollary relief under the Divorce Act and the Family Law Act.
Ratan took the position that the parties were already divorced effective March 17, 2017 and that, since Sonia’s equalization claim was brought more than two years after the Bangladesh divorce, her property claims were barred by s. 7(3) of the Family Law Act.
The Court upheld the findings of the motion Judge:
The common law test for recognizing a foreign divorce was met, and the divorce was presumed valid as the parties had a real and substantial connection with Bangladesh at the time of the divorce. In addition to the facts of the relationship set out above, Sonia herself had initiated divorce proceedings in Bangladesh in early 2016 that were later withdrawn, which suggest that she viewed Bangladesh as the appropriate forum for divorce;
There was no fraud or breach of natural justice in obtaining the divorce. In particular, the motion judge held that Sonia had received notice of the divorce; and
Public policy favoured recognizing the Bangladesh divorce. Depending on the circumstances, even a “bare” talaq divorce could be recognized in Canada. The case law submitted by Sonia involved talaq divorces that were decided on grounds of lack of notice or want of jurisdiction, both of which are well-recognized grounds for refusing to recognize a foreign divorce. In this case, Sonia’s actions commencing these proceedings in bad faith, knowing she had remarried, militated in favour of recognizing the divorce. The motion judge concluded that a party cannot invoke public policy where that party has conducted themselves in a manner that is contrary to public policy.
The Court of Appeal made only this observation in correcting a finding of the Motions Judge:
I agree that it was an error in law to consider Sonia’s bad faith in deciding whether the divorce was contrary to public policy. As discussed above, the public policy exception is aimed at the foreign law, not the facts of the case: Beals, at paras. 71 and 75.
However, given that this divorce is not contrary to public policy, this error had no effect on the outcome of this case. Once it is established that the foreign divorce meets the conditions in s. 22 of the Divorce Act, it is presumptively valid: Abraham, at para. 15. The public policy exception is only available to rebut that presumption. Where, as here, a divorce is presumptively valid, and there are no considerations weighing against this presumption, the analysis should end.
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