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Conflict Of Laws - Conflicts by legal area - Family law - Divorce, including recognition of foreign divorces

Thursday, July 07, 2016 @ 8:00 PM  


Appeal by the wife from an order staying her divorce petition. The husband and wife married in 1997 in Portugal. Their son was born one year later. The family moved to New Brunswick in 1999 for the husband’s work. Over the course of the marriage, the wife was treated for several medical problems, including bi-polar disorder and cancer. The separation occurred when the wife moved back to Portugal in 2014 and was placed in a private health care facility against the wishes of the husband. The husband and son remained in the marital home in Canada. The wife’s condition improved during her time in the hospital and she remained in Portugal in the care of her parents. The parties unsuccessfully tried to negotiate a separation agreement in 2014. The husband subsequently initiated divorce proceedings in Portugal, without the wife’s consent. Prior to the husband attempting to serve the wife in Portugal, she filed a divorce petition in New Brunswick. The husband successfully moved for a stay of the wife’s petition on the basis of forum non conveniens. The wife argued in the present appeal that the judge failed to consider key evidence she included in her petition, specifically, that she was unaware of the husband’s divorce proceeding in Portugal because she had yet to be served with it, and failed to consider differences between Canadian and Portuguese law.

HELD: Appeal allowed. The order staying the wife’s divorce petition was set aside. It was an error for the judge to conclude the Portuguese court could deal with matters of custody, access, support and property division without analyzing on what basis the Portuguese court would decide them. There was no evidence provided about the enforceability of a Portuguese order for divorce in Canada, how a Portuguese court would divide marital assets, or how it would deal with contested issues such as the separation date.