Religious divorce and an Ontario divorce: how do they fit together?

They run on separate tracks. Under Canadian law a marriage ends with a divorce granted by a court under the Divorce Act, or with a foreign divorce that Canada recognizes; a religious divorce on its own does not end the civil marriage. But the law does connect the two: a spouse who refuses to remove a barrier to the other's religious remarriage can have their own claims in the divorce case dismissed, and an agreement made in exchange for a religious divorce can be set aside.

Some couples need both: a civil divorce so they can remarry and settle property and support in Canada, and a religious divorce so they can remarry within their faith. For the civil divorce itself, see our page on divorce in Toronto. This guide is part of our set for Persian-speaking families in Toronto, where a religious divorce, or a divorce registered in Iran, often has to be fitted together with an Ontario case.

How do the civil and religious divorces fit together, step by step?

In practice the order of steps is usually this: start the civil case and serve it. If the other spouse controls a barrier to your religious remarriage, make a written request and then use the section 21.1 affidavit while their own claims are before the court. Settle property, support and parenting with the protections of the Family Law Act in place, and treat any deal offered in exchange for the religious divorce with care. Our guide on what happens after you start a family case in Toronto covers the civil steps in order.

Why is a religious divorce not enough?

Under the Divorce Act, a court of competent jurisdiction grants a divorce on the ground of marriage breakdown, and once it takes effect it dissolves the marriage and has legal effect throughout Canada (sections 8, 13 and 14). In Ontario that court is the Superior Court of Justice. A divorce obtained abroad is recognized in Canada under section 22 if it was granted by a competent authority and either spouse was habitually resident in that country for at least a year before the case began, or under other rules of law that section preserves. A religious ceremony or document in Canada is neither of these.

So a couple who separate in Toronto and complete only a religious divorce are still married under Canadian law. Neither can remarry civilly until a court divorce takes effect, and property and support rights continue to run on their own deadlines.

What does section 21.1 of the Divorce Act do?

It gives a spouse a way to deal with the other spouse's refusal to remove a barrier to religious remarriage, in any proceeding under the Divorce Act.

Two limits are important. The remedy works on the other spouse's own claims in the case, such as a claim for support or a parenting order, so it is strongest when they are asking the court for something. And section 21.1 does not apply where the power to remove the barrier lies with a religious body or official rather than with the other spouse (subsection 6). Which of those it is depends on the facts of the particular faith and case, and it should be worked out before the affidavit is filed.

Can an agreement made in exchange for a religious divorce be undone?

Yes. Ontario's Family Law Act lets a court set aside all or part of a separation agreement or settlement if removing barriers that would prevent the other spouse's remarriage within their faith was a consideration in making it (section 56(5)). The power also covers consent orders, releases, notices of discontinuance and other written or oral arrangements, and it applies despite any agreement to the contrary (section 56(6) and (7)).

One example would be a spouse who gives up support, property or a mahr so that the other will cooperate with a religious divorce. If that is being proposed to you, see whether a mahr is enforceable in Ontario before you sign.

Do Ontario courts get involved in religious divorce terms at all?

They enforce civil obligations, not religious ones. The Court of Appeal for Ontario, describing the Supreme Court of Canada's decision in Bruker v. Marcovitz, said courts may enforce undertakings in a religious marriage contract that meets all the requirements of a civil contract under provincial law, and that a court's role is confined to those undertakings (Bakhshi v. Hosseinzadeh, 2017 ONCA 838). In that same Iranian case, the trial judge's order also required the husband to apply for an Islamic Iranian divorce and register it with the Iranian government within 30 days; the appeal dealt only with the property and mahr issues. Every case turns on its own evidence and wording.

What about religious arbitration?

Ontario law allows family arbitration, but only under Canadian law. If a third person decides a family matter in a process not conducted exclusively under the law of Ontario or another Canadian jurisdiction, the process is not a family arbitration and the decision has no legal effect (Family Law Act, section 59.2). The Act still lets anyone obtain advice from another person, including religious advice. The full requirements are set out in whether a family arbitration award is binding in Ontario.

What if the religious divorce happened in Iran?

Then the question is recognition under section 22 of the Divorce Act, explained in married in Iran: divorcing in Ontario. In the other direction, Global Affairs Canada's travel advice for Iran states that a Canadian divorce certificate is not automatically recognized in Iran and must be authenticated and then sanctioned by an Iranian court. Iranian law is outside the scope of this guide.

What changes the answer?

• Who controls the barrier. Section 21.1 applies only where removing the barrier is within the other spouse's control; it does not apply where the power lies with a religious body or official (s. 21.1(6)).
• Whether the other spouse is asking the court for anything. The court's power is to dismiss that spouse's applications and strike their other pleadings and affidavits (s. 21.1(3)), so it bites hardest when they have claims of their own.
• Whether you have removed, or offered to remove, barriers within your control. Your affidavit must say so (s. 21.1(2)(d)).
• Genuine religious or conscientious grounds. The court may decline to act if the other spouse proves them within 15 days, or a longer time the court allows (s. 21.1(4)).
• Whether a deal was made. An agreement in which removing a religious barrier was a consideration can be set aside (FLA, s. 56(5)).
• Where the religious divorce happened. A divorce granted abroad may be recognized under s. 22; one obtained only from a religious authority in Canada is not a civil divorce.

A worked example

For example, imagine a wife in Toronto who married in Iran and wants both a civil divorce and a religious divorce so she can remarry within her faith. Her husband says he will cooperate with the religious divorce only if she drops her claim to the mahr and to spousal support. She starts the civil case in the Superior Court and, through her lawyer, asks him in writing to remove the barriers within his control. He files an answer claiming a share of the family home. Her lawyer then serves and files a section 21.1 affidavit, stating the date it was served. If he neither shows within 15 days that the barriers are removed nor proves genuine religious or conscientious grounds, the court may dismiss his claims. She does not sign the proposed trade, and if she had, section 56(5) would let a court set it aside. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make?

1. Believing the religious divorce ended the marriage and remarrying or dividing property on that basis.
2. Trading away a mahr, support or property for cooperation with a religious divorce without advice.
3. Skipping the written request. The affidavit must state the date of a written request to remove the barriers (s. 21.1(2)(e) and (f)).
4. Using section 21.1 where a religious body controls the barrier, where it does not apply.
5. Asking a religious authority to decide property or support and expecting a court to enforce it.
6. Letting the property deadline pass while waiting for the religious process; see the deadlines in an Ontario family case.

What to do this week

1. Write down what your faith requires for a religious divorce and who controls each step.
2. If your spouse controls a barrier, prepare a written request to remove it, and keep proof of the date it was sent.
3. List any barriers within your own control and decide whether to remove them or offer to.
4. Do not sign any agreement linked to the religious divorce until you have independent legal advice.
5. Gather your marriage certificate, with a certified English translation if it is in Persian.

Frequently asked questions

Can an Ontario court grant a religious divorce?

No. It grants only the civil divorce under the Divorce Act. It can use section 21.1 to deal with a spouse who refuses to remove a barrier within their control.

Does section 21.1 force my spouse to give the religious divorce?

No. It lets the court dismiss your spouse's own applications and strike their pleadings if they do not remove the barriers, which can be a strong incentive when they want something from the court.

How long does my spouse have to respond to the affidavit?

Fifteen days after it is filed, or a longer period the court allows (s. 21.1(3) and (4)).

Can a religious divorce in Iran end my marriage in Canada?

It can be recognized under section 22 if it was granted by a competent authority and either spouse had been habitually resident in Iran for at least a year before the proceedings began, or under other rules preserved by that section.

Is a mahr affected by a religious divorce?

In Ontario the mahr is treated as a contract. Whether it is payable depends on its wording, not on who sought the religious divorce. See our main page on domestic contracts in Ontario for the general rules.

Can a religious leader help us reach an agreement?

Yes, as advice. The Family Law Act preserves the right to get advice from anyone, but only an agreement that meets the domestic contract rules, or an arbitration under Canadian law, has legal effect.

Related questions

Whichever court will hear your case, start with which Toronto family court handles your case. When the divorce is final, see how to get a divorce certificate in Ontario.

Sarbazevatan Law can discuss your civil divorce and its interaction with a religious divorce in English, Persian (Farsi) or French. Call +1 (416) 628-2041 or reach us through the contact page.