Previously, we have written on disputes involving several jurisdictions.

What if a party obtained a foreign judgment and tried to enforce it in British Columbia? That foreign judgment is based on a legal system that is very different from Canadian law? How many steps does the Canadian trial court need to take to consider whether or not to recognize the foreign judgment?

In today’s interconnected world, it is not uncommon for individuals to have legal disputes that involve multiple jurisdictions. British Columbia entered into agreements to recognize judgments from 31 reciprocating jurisdictions. Recognizing a foreign judgment application can be particularly challenging if one party obtains a judgment in a foreign country outside the 31 reciprocating jurisdictions and seeks to have it recognized and enforced in British Columbia, especially when the foreign jurisdiction’s laws differ significantly from Canadian law.

In BC law, the Supreme Court of British Columbia has exclusive jurisdiction in the recognition of foreign divorce judgments.

This article delves into the complexities of enforcing foreign judgments in British Columbia, focusing on the legal test and the principles that guide the court’s decisions. It also explores the implications of public policy considerations when assessing the enforceability of foreign judgments.

The Case of Mehralian v. Dunmore

On December 9, 2024, the Supreme Court of Canada released its decision in Dunmore v. Mehralian. In this judgment, the Supreme Court considered and affirmed the Ontario Court of Appeal’s 2023 judgment in Mehralian v. Dunmore. These decisions illustrate the issues that can arise when seeking recognition of a foreign judgment in Canada.

Mehralian v. Dunmore involved a couple with a complex marital history spanning several countries, including Japan, the United Arab Emirates, Oman, and Canada. The parties were married in Japan, had a child in Ontario, and eventually separated in Quebec. Following their separation, the husband initiated divorce proceedings in Oman, while the wife commenced a separate action in Ontario.

The Omani court granted the divorce and awarded custody of the child to the wife. Subsequently, the husband sought recognition of the Omani divorce order in Ontario. The Ontario Superior Court recognized the Omani divorce order, but the wife appealed the decision. One of the key issues in the appeal was whether the recognition of the Omani divorce would violate Canadian public policy, given the absence of spousal support provisions in Omani law.

The Legal Test for Recognizing Foreign Judgments in British Columbia

In British Columbia, the recognition and enforcement of foreign divorce judgments are governed by the principles of common law. The key legal test for determining whether a foreign judgment should be recognized in British Columbia is set out in the Supreme Court of Canada’s decision in Beals v. Saldanha. The test comprises several factors, including:

  • The foreign court’s jurisdiction: The foreign court must have had a real and substantial connection to the parties or the subject matter of the dispute, or the parties must have attorned to the foreign court’s jurisdiction.
  • Finality and conclusiveness: The foreign judgment must be final and conclusive in the foreign jurisdiction.
  • Natural justice: The foreign proceedings must have complied with the principles of natural justice, ensuring procedural fairness.
  • Public policy: The recognition of the foreign judgment must not be contrary to Canadian public policy.

The Court of Appeal for Ontario’s Decision in Mehralian v. Dunmore

The Ontario Court of Appeal’s decision in Mehralian v. Dunmore provides clarity on the application of the legal test for recognizing foreign judgments, particularly in cases where the foreign law diverges from Canadian law. The court held that the wife had attorned to the jurisdiction of the Omani court by participating in the proceedings and seeking relief. Therefore, she could not challenge the Omani court’s jurisdiction in Ontario.

Furthermore, the court addressed the wife’s argument that recognizing the Omani divorce would violate Canadian public policy because Omani law does not provide for spousal support. The court emphasized that the difference between foreign law and Canadian law is not enough to refuse recognition. The wife had not presented sufficient evidence to demonstrate that Omani law offended Canada’s fundamental morality or essential principles of justice.

Attornment to Jurisdiction and a Subsequent Public Policy Argument

The Ontario Court of Appeal clarified that if a party, in this case, the wife, attorned to the jurisdiction of the Omani court, she logically consented to the application of Omani law in that dispute. Given her agreement to use Omani law, which resulted in the judgment that the husband sought recognition in Canada, the wife can no longer advance an argument that Omani law is contrary to Canadian public policy.

This judgment clarified that the judge considering the issue of recognizing foreign judgment does not need to consider the public policy argument if the judge had concluded on the wife’s accepting the Omani court’s jurisdiction.

Implications for Enforcing Foreign Judgments in British Columbia

The Mehralian v. Dunmore decision underscores the importance of the Beals v. Saldanha test when seeking recognition of foreign judgments in Canada. It highlights the significance of attornment to a foreign court’s jurisdiction and the high threshold for establishing that a foreign judgment is contrary to Canadian public policy.

Complexity and Solutions

Enforcing foreign judgments in British Columbia involves navigating a complex legal landscape, especially when dealing with jurisdictions whose laws differ significantly from Canadian law. The above legal test provides a comprehensive framework for determining the recognition and enforcement of foreign judgments.

It is crucial to seek legal advice from experienced counsel in British Columbia. We can provide guidance on the complexities of the legal test, the implications of public policy considerations, and the strategic options available to pursue or defend against the recognition of a foreign judgment.

Roland Luo: Vancouver Family & Litigation Lawyer Providing Comprehensive Advice on Foreign Judgments

For the past two decades, we assisted clients who applied to have foreign judgments from the Middle East, Asia, Europe and the US recognized in British Columbia. Should you encounter such a dispute, contact Roland Luo.

Located in downtown Vancouver, Roland Luo proudly represents clients throughout British Columbia, as well as clients across Canada and the United States. To schedule a confidential discussion, contact us online or by phone at 604-800-4628.