



COURT OF APPEAL FOR ONTARIO

CITATION: Novikova v. Lyzo, 2019 ONCA 821

DATE: 20191016

DOCKET: C66551

Lauwers, van Rensburg and
    Roberts JJ.A.

BETWEEN

Lidiia
    Novikova

Applicant
(Respondent in the Appeal)

and

Kirill Lyzo

Respondent
(Appellant in the Appeal)

Rupa Murthi, for the appellant

Ruslana Korytko, for the respondent

Heard: August 28, 2019

On
    appeal from the order of Justice Francine Van Melle of the Superior Court of
    Justice, dated January 11, 2019, with reasons reported at 2019 ONSC 264.

REASONS FOR DECISION

[1]

The parties are involved in family law
    proceedings that were started by the respondent, Ms. Novikova, in October 2016
    in the Superior Court of Justice in Ontario. A consent order for interim child
    and spousal support was made on January 30, 2018.

[2]

In July 2018, the appellant, Mr. Lyzo, brought a
    motion for summary judgment seeking, among other things, to validate a divorce
    obtained in the Russian Federation (the Russian Divorce) and to terminate the
    respondents right to spousal support. Ms. Novikova brought her own motion for
    summary judgment, seeking to have the Russian Divorce declared invalid, and an
    increase in temporary spousal and child support. The motion judge dismissed Mr.
    Lyzos motion. She granted Ms. Novikovas motion in respect of the Russian
    Divorce and concluded that the issue of support was best left for trial.

[3]

Mr. Lyzo appeals the motion judges order
    declaring the Russian Divorce invalid. He seeks a new hearing of the summary
    judgment motions before a different judge, or alternatively, that the issue of
    the validity of the Russian Divorce proceed to trial.

[4]

For the reasons that follow we dismiss the
    appeal.

[5]

The parties and their children are Russian
    citizens and permanent residents of Canada. They cohabited beginning in
    September 2005, and were married in September 2008 in the Russian Federation,
    where their extended families continue to reside. They have two children, aged
    nine and six, who were born in the Russian Federation. Mr. Lyzo moved to Canada
    in 2012, and Ms. Novikova followed with the children in 2013. The parties
    separated in December 2015 while living in Canada.

[6]

Mr. Lyzo began divorce proceedings in the
    Russian Federation after returning there for several months in February 2016. There
    is some evidence in the record that Russian citizens and foreign nationals are
    required to register their address with a government office. Ms. Novikovas
    registered address was the address where her parents continued to live. Registered
    letters with notice of the divorce application were sent to Ms. Novikova at her
    registered address. Her parents refused to accept the documents on her behalf. Communications
    from the local court were also sent to her at that address.

[7]

The Russian Divorce was finalized on June 8,
    2016. Ms. Novikova, who was aware of the proceedings, but did not receive any
    of the documents, did not receive a copy of the divorce decree within the 30-day
    appeal period.

[8]

The motion judge recognized that Mr. Lyzo was
    relying on s. 22(3) of the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.)
    to argue that the divorce was valid because of the parties substantial
    connection with the Russian Federation. Mr. Lyzo claimed that Ms. Novikova
    received proper notice of the divorce through the documents sent to her
    registered address in Russia. Mr. Lyzo took the position that the Russian
    Divorce extinguished Ms. Novikovas entitlement to spousal support (that the
    Russian Divorce, if valid, would extinguish Ms. Novikovas entitlement to
    spousal support in Canada is accepted as a fact in this appeal). Ms. Novikova asserted
    that she had not been properly served with the Russian divorce proceedings and
    that she had not received a copy of the divorce order in time to appeal. Although
    she knew the divorce was proceeding, she believed Mr. Lyzo was simply obtaining
    a divorce and that the balance of the issues would be dealt with in Canada,
    where the parties were represented by counsel and had already started
    discussions about support.

[9]

On the motion, Mr. Lyzo produced the complete
    Russian divorce file, with the documents translated into English. From this the
    motion judge noted that, before the divorce was granted by the Russian tribunal
    on June 8, 2016, the judicial officer had adjourned the matter twice because of
    concerns about service.

[10]

The parties also relied on letters (with
    translations) from Mr. Lyzos lawyer in Russia and a Russian lawyer retained by
    Ms. Novikova, offering competing views on whether Ms. Novikova had been
    properly served with the documents leading to the Russian Divorce. The motion
    judge noted that the lawyers had not provided proper expert opinions with a
    statement of their qualifications, and by affidavit, and that the relevant
    Russian statutory provisions had not been provided. She was unable to determine
    the validity of the information provided, other than to confirm that Ms.
    Novikova had not received a copy of the divorce judgment until after the appeal
    period expired. The motion judge concluded that the evidence was insufficient
    to determine whether the Russian Divorce was obtained in compliance with
    Russian law.

[11]

The motion judge dismissed Mr. Lyzos motion and
    declared the Russian Divorce invalid, based on lack of notice to Ms. Novikova. Mr.
    Lyzo had lawyers in both Ontario and in Russia. He knew where Ms. Novikova was
    living, and that it was not in Russia. He did not provide the divorce documents
    to Ms. Novikova, and further, as Mr. Lyzo did not remarry until more than a
    year after the parties separation, one could assume he obtained the divorce in
    Russia in order to defeat Ms. Novikovas claim to spousal support in Canada. Although
    Ms. Novikova knew that Mr. Lyzo was obtaining a divorce in Russia, she did not see
    any of the documents, and she did not have the opportunity to seek legal advice
    about them, which would have told her that she could not obtain spousal support
    in Canada once a divorce in Russia had been granted. The motion judge
    specifically did not decide whether Mr. Lyzo was entitled to petition for
    divorce in Russia in the first place.

[12]

The appellant asserts that the motion judge erred
    in declaring the Russian Divorce invalid for lack of notice without first
    determining whether the parties had a real and substantial connection to the
    Russian Federation and accordingly, whether the Russian Divorce was valid under
    Russian law. According to the appellant, it was necessary for the motion judge
    to make this determination first because there is a presumption in Canadian law
    that validly obtained foreign divorces will be recognized in Canada. The issue
    of whether the motion judge should nonetheless have refused to recognize the
    Russian Divorce due to a denial of natural justice was therefore a secondary
    issue that should have been assessed with this presumption in mind. The
    appellant also submits that, in any event, the motion judge ought to have
    recognized the validity of the divorce because the respondent was aware of and
    consented to the divorce proceedings, and at all material times had legal
    advice in Canada.

[13]

While in our view the motion judge did not err
    in refusing to recognize the Russian Divorce, we would not adopt her entire
    analysis.

[14]

Section 22 of the
Divorce Act
provides
    for the recognition of foreign divorces in Canada. Section 22(3) expressly upholds
    the common law principles that were helpfully summarized in Julien D. Payne
,
Payne on
    Divorce
,
    4th ed. (Scarborough: Carswell, 1996), at p. 111: Canadian courts will
    recognize a foreign divorce:
(i)
    where jurisdiction was assumed on the basis of the domicile of the spouses;
    (ii) where the foreign divorce, though granted
on a
    non-domiciliary jurisdictional basis, is recognized by the law of the domicile
    of the parties; (iii) where the foreign jurisdictional rule corresponds to the
    Canadian jurisdictional rule in divorce proceedings; (iv) where the
    circumstances in the foreign jurisdiction would have conferred jurisdiction on
    a Canadian court had they occurred in Canada; (v) where the petitioner or
    respondent had a real and substantial connection with the foreign jurisdiction
    wherein the divorce was granted; or (vi) where the foreign divorce is
    recognized in another foreign jurisdiction with which the petitioner or
    respondent has a real and substantial connection. See also Jean-Gabriel Castel and
    Janet Walker,
Canadian Conflict of Laws
, 6th ed., loose-leaf (Markham:
    LexisNexis Canada Inc., 2005) at para.17.2.a;
El Qaoud v. Orabi
, 2005
    NSCA 28, 12 R.F.L. (6th) 296, at para. 14. As already noted, Mr. Lyzo contends
    that the Russian Divorce was properly obtained in the Russian Federation on the
    basis of the parties real and substantial connection to that jurisdiction.

[15]

A court may refuse to recognize a foreign
    divorce that would otherwise be valid, on the grounds of fraud, the denial of natural
    justice (including the absence of notice) or public policy: see
Powell v.
    Cockburn
, [1977] 2 S.C.R. 218, at p. 227;
El Qaoud,
at paras. 17-18;
Delaporte v. Delaporte
, [1927] 4 D.L.R. 933; and
Canadian Conflict
    of Laws
, at para.17.2.c.

[16]

In this case, the motion judge need not have
    been concerned with the deficiencies in the evidence as to whether the divorce
    was obtained in compliance with Russian law. In particular, she need not have
    been concerned with whether, had the Russian tribunal known about the
    respondents residence in Canada, it would have taken further measures to
    ensure proper service before granting the Russian Divorce. It is not typically
    appropriate or necessary for Canadian courts to inquire into the substantive
    grounds upon which a foreign divorce decree is granted: see e.g.
Powell
,
    at p. 228 and
Pitre v. Nguyen
,

2007 BCSC 1161, at paras. 17-18.

[17]

Nonetheless, the motion judge appropriately
    focussed on the lack of notice to Ms. Novikova, which was a denial of natural
    justice. This was the reason for the refusal to recognize the Russian Divorce.
    As in
Powell
, where there was evidence of fraud rather than lack of
    notice, it was appropriate to address this issue before (or without) engaging
    in an analysis of real and substantial connection:
Powell
, at p. 227.
    While it is true, as Mr. Lyzo submits, that fraud, natural justice, and public
    policy are often referred to as defences, it is not necessary for the court
    to consider them second, as demonstrated by
Powell
.

[18]

On this basis, we disagree with the appellants main
    argument on appeal: that the motion judge erred in law in failing to determine
    the real and substantial connection issue, before considering whether to
    refuse recognition of the Russian Divorce because of fraud, natural justice or
    public policy concerns.

[19]

We are also satisfied that there was no other
    error in the motion judges finding that there was insufficient notice to the
    respondent, or in concluding that on this basis, the Russian Divorce should not
    be recognized.

[20]

For these reasons the appeal is dismissed. The
    appellant shall pay the respondents costs of the appeal in the sum of $10,000,
    inclusive of disbursements and HST.

P.
    Lauwers J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


