



COURT OF APPEAL FOR ONTARIO

CITATION: Antonyuk v. Antonyuk, 2021 ONCA 748

DATE: 20211025

DOCKET: C69381

Feldman, Pepall and Tulloch JJ.A.

BETWEEN

Iryna
    Antonyuk

Applicant

(Appellant)

and

Mykhaylo Antonyuk

Respondent

(Respondent)

Iryna Antonyuk, acting in person

Igor Yushchenko, for the respondent

Heard: October 13, 2021 by video conference

On appeal from the
    order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated January
    29, 2020, with reasons reported at 2020 ONSC 644.

REASONS FOR DECISION

[1]

The appellant appeals the decision of the trial judge which recognized
    the divorce of the appellant and the respondent obtained by the respondent in
    Ukraine, dated October 23, 1998, pursuant to s. 22 of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.).

[2]

The appellant argued at trial that the Ukrainian divorce was invalidly
    obtained and that the court in Kiev did not have jurisdiction to grant the
    divorce.

[3]

The appellant sought a divorce in Canada in 2017 and obtained a divorce
    order, but that divorce was set aside when the respondent took the position
    that the parties were already divorced. The respondent has remarried and has a
    child with his current wife. The appellants position is that she needs a
    Canadian divorce in order to be able to remarry because the Ukrainian divorce
    is not valid.

[4]

This was a four-day trial with evidence from the parties, a witness who
    observed the parties immediately after the Ukrainian divorce, and an expert on
    Ukrainian law.

[5]

The trial judge considered the requirements of s. 22 of the
Divorce
    Act
for the recognition of a foreign divorce, noting that foreign divorce
    decrees are presumptively valid.

[6]

The trial judge accepted the opinion of the expert that the Ukrainian
    court had jurisdiction to grant the divorce. The trial judge also accepted the
    finding by the Ukrainian court that the appellant had been given notice of the
    hearing and had not appeared. The trial judge noted that the appellant had not
    alleged fraud, and there was no evidence of fraud.

[7]

The trial judge found that the appellant had relied on the Certificate
    of Divorce from Ukraine when filing her Canadian income tax returns as a
    divorced person since 2001 and continued to do so even after she began to
    question the validity of the divorce. The trial judge also observed that the
    appellant delayed for many years before challenging the validity of the
    divorce. This observation was made in the context of the fact that failing to
    recognize the validity of the divorce would be very detrimental to the
    respondent and his family.

[8]

The trial judge concluded that the appellant had not met her onus of
    proving that the Certificate of Divorce from Ukraine was not properly obtained
    and should not be recognized in Canada.

[9]

We see no error in the trial judges findings or analysis. She was
    entitled to accept the evidence presented that verified the validity of the
    Ukrainian divorce and to reject the position of the appellant.

[10]

The appeal is dismissed with costs fixed in the amount of $5,000,
    inclusive of disbursements and HST.

K. Feldman J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


