Bare Talaq Divorce not recognized by Canadian law even if registered with a foreign government agency

By Dickson Appell
Bare Talaq Divorce not recognized by Canadian law even if registered with a foreign government agency

Under Islamic law, a husband has a unilateral and exclusive right to dissolve his marriage by repeated recitation of a verbal formula. This is known as a “bare talaq divorce”. Canadian law does not recognize bare talaq divorces as akin to formal divorces under the Divorce Act, in part given that these divorces lack adjudicative or official oversight. InAbraham v. Gallo, 2022 ONCA 874, the Ontario Court of Appeal held that registration of a bare talaq divorce with a foreign embassy does not render it effective under Canadian law. The decision also provides a helpful summary of the principles for recognition of foreign divorces in Canada under s. 22 of the Divorce Act.

In Abraham v. Gallo, the applicant husband sent a text message to his wife stating that he viewed the couple as divorced, effective as of December 2016. This text message, being the third statement from the husband asserting his desire for divorce, represented the completion of a bare talaq divorce under Islamic law. In January 2018, the husband arranged for the parties to register their divorce at the Egyptian Embassy in Ontario, following which the Embassy registered a Declaration of Divorce. The following year, the wife sought relief from the Ontario court, including a declaration that the divorce should not be enforced, and an order for spousal and child support. The motion judge in the Superior Court of Ontario recognized the bare talaq divorce under s. 22(3) of the Divorce Act, which allows the court to recognize a foreign divorce based on conflict of law principles at common law.

At common law, foreign divorce decrees are presumed valid, but that presumption can be rebutted in certain circumstances, including where the responding spouse did not have notice of the divorce, where the foreign divorce is contrary to Canadian public policy, and where there was a denial of natural justice.

The wife appealed, seeking to overturn the lower court ruling and recognition of the bare talaq divorce. Court of Appeal held that the motion judge erred in his interpretation and application of s. 22(3) of the Divorce Act for three reasons. First, s. 22 of the Act refers to divorces “granted” by a competent authority or otherwise. Given that a bare talaq divorce is not granted by any foreign authority, it does not fall within s. 22(3) of the Act. Registering the divorce with the Egyptian Embassy did not change that reality. The Court of Appeal reasoned 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”.

Second, the Court of Appeal ruled that bare talaq divorces at large ought not to be recognized by Canadian law because they are contrary to Canadian public policy. The fact that the bare talaq divorce was registered at the Egyptian Embassy did not serve to overcome the issues that render these types of divorces contrary to public policy.

Finally, the Court of Appeal held that the parties did not have a real and substantial connection to Egypt at the time of the bare talaq divorce, such that it could not be recognized by the Canadian court based on conflict of laws principles. While the parties resided in Egypt as children, there was “unchallenged and overwhelming evidence” that at the time of the divorce, neither party had any real or substantial connection to Egypt. The Court of Appeal concluded that “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 …”.