Mazhar v Hanif, 2021 ABQB 1010

Court of Queen’s Bench of Alberta Citation: Mazhar v Hanif, 2021 ABQB 1010 Date: 20211217 Docket: 4803 175572 Registry: Edmonton Between: Fozia Mazhar Petitioner/Respondent - and - Mubasher Hanif Defendant/Applicant _______________________________________________________ Ruling of the Honourable Mr. Justice A. W. Germain _______________________________________________________ A. Introduction [ 1 ] Ms. Mazhar wants a divorce! So, does Mr. Hanif! With this unhappy but consistent desire on the part of both, one would think that granting a divorce would be easy. One would be wrong! [ 2 ] Ms.

Mazhar wants an Alberta divorce, while Mr. Hanif wants the divorce which Ms. Mazhar obtained in Pakistan in 2015, but has since repudiated. This has led both to a significant number of interlocutory proceedings in the Alberta Courts, and continued litigation in Pakistan. Currently, the Supreme Court of Pakistan has been asked to rule on a procedural matter- whether Ms. Mazhar’s attempt to rescind her divorce in Pakistan was a valid process.

[ 3 ] When Ms. Mazhar came to Canada she was a prospective immigrant from Pakistan. She came on the basis of unification with Mr. Hanif. The unification lasted but a few hours and led to an allegation of criminal conduct. Ms. Mazhar then obtained a lawyer and applied for divorce in Alberta requesting spousal support and a matrimonial property division. The Alberta Courts granted Ms. Mazhar interim spousal support which was subsequently stayed and then ended on an interim basis.

Any outstanding arrears is being paid over time. [ 4 ] Currently in Alberta, there is an unresolved Statement of Claim for divorce, corollary relief and the division of matrimonial property. [ 5 ] In this application, Mr. Hanif wants a declaration that the relief requested by Ms. Mazhar is inappropriate because they are already divorced, while Ms. Mazhar renews her request that the proceedings be allowed to continue. B. Background Facts [ 6 ] Mr. Hanif married Ms. Mazhar in Pakistan on April 10, 2010. After the marriage, Mr.

Hanif returned to Canada and began working on an immigration sponsorship for his new bride. He made this application in July 2010. Mr. Hanif returned to Pakistan in June 2011 and he and Ms. Mazhar went through a cultural ceremony relating to his marriage and perhaps embarking on what some might call a honeymoon. [ 7 ] Mr. Hanif’s application to sponsor his new bride to Canada ran into difficulty and on March 5, 2013, Mr. Hanif, and subsequently Ms. Mazhar, received information that the sponsorship application had been denied. The denial was appealed.

After that sponsorship denial, the evidence becomes less clear about the desire of Ms. Mazhar and Mr. Hanif to continue their marriage. [ 8 ] An expert report indicates that in Pakistan, a male spouse need only declare himself to be divorced three times, have this information recorded and served in some fashion on his spouse to achieve a divorce. Mr. Hanif asserts that he did this. The expert report reveals that a female spouse may also get a divorce but must apply for this in the Courts. Ms. Mazhar applied for this in 2014, and in Pakistan on April 4, 2015, she was divorced from Mr. Hanif by court order. Mr.

Hanif had notice of this divorce application. [ 9 ] Almost immediately after her divorce, Ms. Mazhar became aware that her application to immigrate to Canada was not as moribund as she had believed because she received a request to provide personal medical information about her health. On April 27, 2015, Ms. Mazhar applied allegedly ex parte , to set aside her divorce in Pakistan utilizing the stated ground of reconciliation. The Pakistan trial Courts (presumably motivated by a desire to encourage reconciliation) made such an order. [ 10 ] The evidence leads to an inference that Mr.

Hanif did not know about the order rescinding the divorce in Pakistan, nor did he realize that the immigration application was ongoing until, (as he asserts), he received a call from the Edmonton International Airport to pick up Ms. Mazhar. Ms. Mazhar admits in one examination that she did not tell her husband she was coming to Canada until she landed at the airport, but clearly her approval to come to Canada was assisted by her marriage to Mr. Hanif. [ 11 ] This then set off a flurry of legal activity in Pakistan. Mr. Hanif sought a declaration that the order which rescinded the Pakistan divorce granted to Ms.

Mazhar was a nullity, due to procedural irregularity. The current state of this litigation in Pakistan favours Mr. Hanif, but Ms. Mazhar has an appeal to the Supreme Court of Pakistan asking for leave that they consider this procedural issue and declare the divorce repudiation valid - leaving the parties married until they are divorced in Alberta. I also understand that Mr. Hanif is taking, or has taken steps, in the Pakistan Courts to get a declaration that his divorce from Ms.

Mazhar is valid; however, I understand that with the parties now resident in Canada the Pakistan Courts were, or are not, prepared to grant that relief. The expert report filed in this case was not as helpful as it might have been about the state of the conflicting litigation in Pakistan regarding this litigation. C. The Position of the Parties [ 12 ] It is the position of Mr. Hanif that I should stay or strike the Statement of Claim for divorce on the basis that there is no underlining subsisting marriage and I should direct Ms. Mazhar to repay to Mr. Hanif the support she has received and to cancel any arrears.

He asserts that his expert report is definitive on this issue. [ 13 ] Ms. Mazhar’s position is that she should be allowed to proceed with her Statement of Claim for divorce as there is uncertainty in the court proceedings in Pakistan and that she still has one level of appeal to the Supreme Court of Pakistan to overturn the decisions which to date have restored her divorce in Pakistan. D. Ruling [ 14 ] I have decided to deliver a written ruling in this case for several reasons. First, the volume of material supplied requires this.

Second, both litigants are now self representing litigants and therefore receiving the result of this case in writing may assist them to better understand the Court’s ruling and take appropriate next steps. [ 15 ] Before I delve into this very unique fact situation, I wish to make a brief comment on the reading material for this application. This matter was scheduled for a ‘Family law special chamber hearing’, to determine an issue. Such matters are advanced on the basis of short affidavits and a short letter outlining the position of each party. What I received instead was over a thousand pages of material.

It is simply not practical nor is it sustainable in the courts for a judge to receive this volume of written material for what is intended to be a one hour scheduled family law chambers hearing. In fairness to the litigants, the actual portion of the material that related to their

submission (called in our family law proceeding ‘the concise letter of argument’) were sized appropriately; however, it is the attachment of cases, documents and other opinions, plus repetitions that added to the size of the file. On behalf of all judges, I urge litigants who might read these remarks to adopt restraint in the volume of material supplied - particularly in special chambers family law proceedings which are intended to be a

summary process. [ 16 ] The primary issue in this case is whether the litigants went through a valid divorce in Pakistan. If that happened, then at least part of the relief requested in the Alberta Statement of Claim should be stayed as there is no valid marriage to be ended as contemplated by the Alberta claim. If there was no valid divorce in Pakistan then Ms. Mazhar, who has now been sponsored to Canada by Mr.

Hanif, should be able to utilize the divorce courts in Canada to claim a divorce, spousal support, and perhaps a review of matrimonial property. [ 17 ] A proper determination of all of the issues in this case would require making credibility findings and judges are reluctant to do so on the basis of affidavit evidence.

There is significant controversy both about the facts and motives in this case replete with reciprocating allegations of deceit, dishonesty, lying, and fraud, in both the Pakistan and Alberta Courts, and to the Canadian Department of Immigration. [ 18 ] However, here the issue coalesces into a legal determination and if I set aside various motives for the conduct of the parties the factual timeline of legal proceedings primarily in the Pakistan courts gives insight into whether the Alberta Statement of Claim should be stayed or dismissed. [ 19 ] An expert, Mr. Tom Hood, has provided a report in these proceedings.

The author of that report is himself currently a lawyer practising law in Calgary but has the distinction of having been a family law and civil judge in Pakistan prior to his entry to the Alberta bar. It is his unequivocal opinion that the Courts have ruled that the order rescinding Ms. Mazhar’s divorce in Pakistan was a nullity and obtained by misrepresentation or a breach of their procedural rules such that Ms. Mazhar’s divorce of April 4, 2015, remains a valid and subsisting divorce. In result, Mr. Mazhar and Mr. Hanif are not married, even putting aside whether Mr. Hanif successfully divorced Ms.

Mazhar in Pakistan based on the procedure available to him. [ 20 ] We recognize in Canada, foreign divorces that are properly granted: Recognition of foreign divorce 22

(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce. [ Divorce Act R.S.C., 1985, c. 3 (2nd Supp .)] Nothing in the materials leads me to believe that the Pakistan divorce was not properly granted based on the residence of Ms.

Mazhar. [ 21 ] I now wish to turn to the merits of this application. This was a very short marriage coupled with a strong inference that it was a marriage only of convenience to facilitate the immigration process. That reasonable inference explains why Ms. Mazhar would divorce Mr. Hanif in Pakistan after being informed that the immigration attempt failed, then attempt to rescind that divorce three weeks later, with no further intervention from her spouse, after sensing that the immigration application might still succeed. Then, she comes to Canada without notice to him, alleges that Mr.

Hanif abused her and applies for divorce in Canada. If she really wants to be divorced all she has to do is accept the legal rulings of the Pakistan Courts rather than appeal them. It is reasonable to conclude Ms. Mazhar wants an Alberta divorce either to quiet potential allegations of immigration impropriety, or out of a perception that it is to her financial benefit in Canada. [ 22 ] The expert opinion based on a review of the documents from Pakistan opines that the divorce granted on April 15, 2015, is valid and subsisting and so ended the April 2010 marriage of these two litigants.

However, this outcome cannot be guaranteed until the Supreme Court of Pakistan rules on the legal issue that is before them. Regrettably that ruling, irrespective of its outcome, may not put an end to the Alberta litigation. [ 23 ] There is another issue relating to the Alberta litigation. The Statement of Claim also claimed remedies such as spousal support and an adjudication on matrimonial property.

Even if the divorce granted in Pakistan is declared to be valid, the Statement of Claim filed in Alberta relating to matrimonial property was filed within the limitation time to advance a matrimonial property claim after a divorce. Ms. Mazhar may have the right to litigate about matrimonial property in Alberta even if she did divorce her husband in Pakistan. For this reason alone, the Statement of Claim cannot be struck out, but at best could be amended to remove one now superfluous remedy.

To do that when the Pakistan Supreme Court has not yet completed their deliberation on this case, and with an uncertain evidentiary platform would be foolhardy. [ 24 ] Significant time has lapsed between the argument of this matter and the release of these reasons. This has been purposeful. I delayed the release of these reasons well past our preferred target dates to see if a final decision from Pakistan was received.

Recently, I canvassed the parties again about the litigation in Pakistan and was told no definitive ruling has yet been granted but the litigants did receive general information that indicated that the Pakistan Supreme Court was going to begin taking up their Covid-19 deferred workload. This provides no information that would assist me in this decision. [ 25 ] In conclusion, the Defendant is going to have to continue to pursue this case in Court. His application to strike the pleadings is dismissed.

It also therefore means that his application to have the interim support which was ordered pursuant to that pleading returned to him, must also fail. The stay of any obligation to pay ongoing spousal support continues. [ 26 ] Historically, Associate Chief Justice Nielsen conducted a case management conference which he felt might bring the case to a conclusion. Now that this application has been dismissed, the litigants should settle the case, or prepare for trial.

Associate Chief Justice Nielsen is prepared to arrange another case management conference if the parties write to him requesting it. [ 27 ] The last observation I make is to remind the litigants that we have rules in place to ensure that litigation advances promptly.

These are found in the Alberta Rules, 4.31 to rule 4.33 inclusive. The effect of these rules is that if one party is delaying the procedure, the other party can apply to have the case dismissed and if three years go by without a significant advance in the action, the Statement of Claim could be struck. I’m not able in a ruling such as this to provide legal advice but I would strongly urge the litigants to consider re- engaging legal counsel and at least be mindful of the Rules of Court which could lead to the action being dismissed if it is not pursued with haste.

I will accept that the steps the Defendant took to get this ruling could reasonably be considered a step to advance the litigation under the rules, but the parties should now move forward with this case. [ 28 ] I make no order about costs for this proceeding. Heard on the 18 th day of January, 2021. Dated at Edmonton Alberta this 17 th day of December, 2021. Adam W Germain J.C.Q.B.A. Appearances: Sania Chaudhry, Stewart Sharma Harsanyi, Counsel for Applicant The Respondent appeared on her own behalf