Almost certainly not, and the answer is more contested than most summaries of religious divorce in Ontario suggest. An Ontario court cannot dissolve a religious marriage, cannot direct an imam or a rabbinical court to do so, and will not rule on whether a particular talaq is valid as a matter of religious law. Whether it can go one step further and order your spouse personally to pronounce or consent to the talaq is a live disagreement in the Superior Court of Justice, and the most recent and most fully argued decision says no.
What the court can do, and does, is refuse to let a spouse participate in the civil litigation while he withholds a religious divorce that is within his power to give. That remedy is genuinely powerful, but it is time sensitive, and by the time most people ask about it the window has closed.
Why a Civil Divorce Is Sometimes Not Enough
A divorce granted by the Superior Court of Justice ends the marriage in Canadian law. It does not necessarily end it in the eyes of your religious community, your family abroad, or the legal system of the country where you were married. A woman may hold a Canadian divorce certificate and still be regarded as married by the mosque that solemnised the nikah and by a foreign registry.
The consequences are concrete. In Zoughaib v. El-Mokadem, 2024 ONSC 292, the wife had been married in Lebanon under the religious authority of a Shari’a court, and her evidence was that without the religious divorce she could not remarry within her faith and could not safely travel to Lebanon to see her parents, because her husband might have her passport revoked and prevent her from leaving. In Etemad v. Hasanzadeh, 2014 ONSC 6737, and again in Hesson v. Shaker, 2020 ONSC 1319, the concern was that the wife would continue to be treated as a married woman under Iranian law. In the British Columbia case of Kariminia v. Nasser, 2018 BCSC 695, the wife had gone years without visiting her elderly mother and disabled sister in Iran because she feared she would not be able to return.
The imbalance is what drives the litigation. Where the religious divorce requires the husband’s pronouncement or consent, a spouse who withholds it controls whether the other can move on, and that leverage is sometimes used deliberately.
The Statutory Route: Removing Barriers to Remarriage
Parliament addressed this problem in 1990, and Ontario followed. Neither statute lets a judge grant the religious divorce. Both work by attaching a litigation consequence to a refusal.
Section 21.1 of the Divorce Act allows a spouse to serve and file an affidavit setting out that the parties are married, the date, place and official character of the person who solemnised the marriage, the nature of the barriers to the deponent’s religious remarriage whose removal is within the other spouse’s control, confirmation that the deponent has removed or is willing to remove any barriers within his or her own control, that a written request to remove the barriers was made, the date of that request, and that the other spouse has failed to comply. Under section 21.1(3), if the other spouse does not file a responding affidavit within fifteen days confirming that all the barriers have been removed, and does not otherwise satisfy the court that they have been removed, the court may dismiss any application that spouse has filed under the Act and strike out that spouse’s other pleadings and affidavits.
Section 2(4) of the Family Law Act creates a parallel mechanism for provincial claims, specifically applications under section 7 for equalization of net family property, section 10 on questions of title between spouses, sections 33 and 34 on support and the powers of the court, and section 37 on variation. A party serves and files a statement, verified by oath or statutory declaration, indicating that the author has removed all barriers within his or her control that would prevent the other spouse’s remarriage within that spouse’s faith and that the other party has not done so despite a request. Under section 2(5) the party served has ten days, or longer if the court allows, to respond. Section 2(6) supplies the consequence. If an applicant fails to comply the proceeding may be dismissed, and if a respondent fails to comply the defence may be struck out. Section 2(7) exempts a party who claims no costs or other relief in the proceeding.
Section 56(5) adds a further tool by permitting a court to set aside all or part of a separation agreement or settlement where the removal of barriers to the other spouse’s remarriage was a consideration in making it.
The Conscientious Objection Defence, and a Gap in the Family Law Act
Section 21.1(4) of the Divorce Act contains a safety valve that is easy to miss. A spouse served with a barrier removal affidavit may, within fifteen days, file an affidavit setting out genuine grounds of a religious or conscientious nature for refusing to remove the barriers. If the court is satisfied those grounds are genuine, it may decline to dismiss the application or strike the pleadings.
The Family Law Act has no equivalent provision. In Zoughaib the respondent raised this as a potential constitutional question, arguing that sections 2(4) to 2(6) of the provincial statute impose the consequence without allowing a court to weigh sincere religious objection. The point was never decided. The respondent had not complied with the procedural requirements for a constitutional challenge, and the parties agreed instead to run the motion under section 21.1 of the Divorce Act alone, with any relief granted applying to all of the pleadings and affidavits, including those filed under the Family Law Act.
That is a workable solution and worth borrowing, but the underlying question is unresolved. If you are relying on the provincial provisions in a case where there is no divorce claim to anchor section 21.1, expect the argument to be raised.
How Courts Test a Claim of Religious Conviction
A spouse who says his faith forbids him from granting the divorce is not required to prove that his belief is theologically correct. Under Syndicat Northcrest v. Amselem, 2004 SCC 47, a court is not qualified to rule on the validity or veracity of a religious practice or belief, or to choose among interpretations. What a court is qualified to do, where it is in issue, is inquire into the sincerity of the belief, which means nothing more than honesty of belief.
That inquiry decided Zoughaib. The respondent’s affidavit said that pronouncing talaq where the underlying legal resolution did not accord with Sharia would amount to renouncing its religious authority. The court found the explanation unclear, noted that he led no expert evidence, and then worked through what the evidence actually showed. He admitted in oral testimony that his religion permits him to consent to talaq. He had consented twice before, at the end of two earlier marriages. He first said he was withholding consent because his wife had not attended before the imam, then admitted on cross-examination that she had. He then said he was withholding it because she had sued him in civil rather than religious court. His own text message and his evidence about it displayed anger. And when confronted with the wife’s evidence that he had offered to consent if she gave him sole custody so he could move the children to Lebanon, he first claimed privilege and then denied the conversation, which the court found damaged his credibility rather than helping it.
The court applied the reasoning of the majority in Bruker v. Marcovitz, where the husband had never actually offered a religious reason for refusing the get, and his refusal was found to rest less on conviction than on anger. Justice Bezaire reached the same conclusion. The fact that religious law permits a husband to withhold consent is not the same as his being prevented by genuine belief from giving it.
Can the Court Compel the Talaq Itself? The Ontario Split
This is the unsettled question, and if you are litigating it you need to know both sides.
Some Ontario judges have made compulsion orders. The trial judge in Bakhshi v. Hosseinzadeh, 2015 ONSC 7407, ordered the husband to apply for an Islamic Iranian divorce at an approved agency and to register it with the Iranian government within thirty days, and that part of the order was not disturbed when the case reached the Court of Appeal on the property issues. In Hesson v. Shaker, Justice Barnes ordered the husband to attend before an imam, provide his consent, recite the divorce, sign all necessary documents, and confirm in writing to the wife once he had done so.
Other judges have doubted the jurisdiction. In Salehi v. Tawoosi, 2016 ONSC 540, Justice Myers observed in obiter that there is a real distinction between striking pleadings, which denies a spouse standing in the civil process, and a mandatory injunction by which a state official positively compels a person to perform a religious act. The latter, he suggested, implicates freedom of religion under the Charter. He noted that the Bakhshi trial decision had relied on a case about striking pleadings and had not addressed the distinction at all, and he would have declined to make the order without fuller argument.
Zoughaib is the most recent decision, and it is the one in which the issue was squarely argued on both sides. Justice Bezaire found the husband’s religious objection insincere, struck the barrier to relief, and still refused to order him to consent. Her reasoning was that no authority had been provided permitting the court to compel a religious divorce, that the civil court process is not to be used to enforce religious rules, and, expressly, that Hesson had cited only Etemad as authority for such an order, which she did not find sufficient. She relied for the underlying principle on the dissenting reasons in Bruker, which held that the authority of the courts cannot be founded on a purely religious rule.
The applicant in Zoughaib had also relied on the British Columbia decision in Kariminia v. Nasser, where Justice Forth did order the husband to apply for an Islamic Iranian divorce. That decision reasoned that religious freedoms are subject to limitations where they collide disproportionately with other significant public rights, that the husband’s refusal had caused substantial harm by keeping the wife from visiting her family in Iran, and that it would be contrary to Canadian public policy and to equality principles to treat the right to the religious divorce as belonging exclusively to the husband. Justice Bezaire declined to follow it, noting that the husband in Kariminia had not participated in the proceeding or put his religious rights in issue, and that a British Columbia decision does not bind an Ontario court.
One further point matters for anyone arguing this. The Supreme Court in Bruker expressly said it had not been asked to order specific performance and that its reasons should not be read as endorsing that remedy. There is, at present, no appellate authority in Ontario either way.
What Courts Do Instead: The Conditional Deadline Order
The practical answer that has emerged is a conditional order with a deadline, which pressures the spouse without directly commanding a religious act.
In Etemad, Justice Backhouse made no compulsion order. She gave the husband thirty days to take the necessary steps to obtain the religious divorce unconditionally, failing which the parties were to make further submissions. He consented, and no further order was needed.
Zoughaib followed the same shape with more teeth. The court ordered that within sixty days of the date of the civil divorce order the husband file an affidavit confirming that all barriers to the religious divorce had been removed, failing which his pleadings and affidavits would be immediately struck and he would be unable to participate further in the proceeding. The court went on to direct that if he failed to file, the continuation of the motion, which still had decision making, parenting time, child support and section 7 expenses outstanding, would proceed as a summary hearing without his involvement. Justice Bezaire closed by saying that although she could not compel him, she strongly encouraged him to grant the talaq.
That is the realistic target. You are not likely to obtain an order commanding the pronouncement. You can obtain an order that makes withholding it extremely costly.
The Contractual Route: Bruker v. Marcovitz
There is a second path where the spouse has promised in writing to participate. In Bruker v. Marcovitz, 2007 SCC 54, a Jewish couple divorcing in Quebec signed a consent in which the husband committed to appear before rabbinical authorities to deliver a get. He refused for fifteen years. The Supreme Court of Canada restored the trial judgment awarding the wife $47,500 in damages.
The reasoning is the foundation for everything in this area. Religious elements in an agreement do not protect it from judicial scrutiny. The court was not asked to review doctrine, such as whether a particular get was valid, nor to speculate about what a rabbinical court would do. It was asked to enforce a promise negotiated between two consenting adults, each represented by counsel, as part of a voluntary exchange of commitments intended to have legal consequences. The Court also held that enforcing such a promise is consistent with public policy rather than contrary to it.
The lesson for practice is to get the promise in writing. A commitment to participate in the religious divorce, recorded in the marriage contract or the separation agreement, converts an unenforceable religious expectation into a contractual obligation that can be enforced in Court.
A Religious Divorce Cannot Be Used as a Bargaining Chip
This is the clearest principle in this area, and it comes straight from Parliament’s stated purpose. When the barrier removal amendments were introduced in 1990, the Minister of Justice explained that a spouse should not be able to refuse to participate in a religious divorce in order to obtain concessions in the civil one, and that the religious divorce should not become a bargaining tool for custody, access or money. The concern was that a wife might feel compelled to agree to arrangements that are not in her children’s best interests in order to obtain her freedom.
Zoughaib applied that directly, holding that talaq, like a get, is not to be used as a bargaining tool for parenting time or any other issue in the civil divorce. Section 56(5) of the Family Law Act reinforces it on the settlement side by allowing a court to set aside an agreement where barrier removal formed part of the consideration (i.e. part of the bargain).
If your spouse has offered the religious divorce in exchange for a concession, document the offer carefully. In Zoughaib that offer, and the husband’s shifting evidence about it, was a significant part of why the court rejected his claim of religious conviction to not grant a religious divorce.
What You Actually Have to Prove
Clients underestimate this.
You must establish that a barrier exists, that its removal lies within your spouse’s control rather than a religious authority’s, that you have requested removal in writing, and that he has not complied. In Zoughaib the wife had asked as early as November 2022, again by a solicitor’s letter in March 2023, and again in a sworn affidavit in July 2023. That paper trail is what made the statutory route available.
Expert evidence is often necessary. In Hesson the wife called an imam whose qualifications were not in dispute, and his evidence established the two forms of religious divorce, that the husband’s recitation and consent were required either way, and what the financial consequences would be depending on who initiated the religious divorce. In Zoughaib the absence of expert evidence cut the other way. The husband asserted that granting talaq in these circumstances would contravene Sharia, and provided no evidence to support his argument, which contributed directly to the finding that his objection was not genuine.
Evidence of harm also matters. The travel and passport evidence in Zoughaib, and the equivalent evidence in Kariminia, gave the courts something concrete to weigh against the asserted religious freedom.
Timing Is the Most Common Mistake
The statutory remedy is the dismissal of a claim or the striking of a defence. It works only while there are live pleadings to strike. As the court noted in Zoughaib, citing Sablani v. Sablani, 2023 ONSC 6288, the section 21.1 process is usually initiated well before trial precisely because the remedy is to strike pleadings rather than to order a religious divorce. A spouse who settles everything, obtains the civil divorce, and only then turns to the religious divorce may find it difficult to request the court assist with the religious divorce.
Raise the issue of religious divorce in your pleadings. Serve the affidavit early. Even in Zoughaib, where the civil divorce had already been granted days before the ruling, the court had to work around the timing by tying the deadline to the date of the divorce order and preserving the outstanding parenting and support issues as the leverage.
Protect the Financial Claims at the Same Time
A religious divorce request rarely stands alone. It usually sits beside a mahr claim, and many marriage contracts tie payment to who ends the marriage. A deferred amount may fall due if the husband pronounces talaq, while an advance may become refundable if the wife seeks khula. That was the structure in Hesson, which is why the court there both declined to order the husband to initiate and expressly preserved the parties’ entitlements under the contract when it made its order.
If you obtain a religious divorce order without turning your mind to the payment terms, you may win the freedom to remarry and lose the money in the same paragraph. Our companion article on whether a mahr is enforceable in Ontario deals with the payment side in detail.
Frequently Asked Questions About Religious Divorce in Ontario
Can a judge order my husband to give me a talaq? Probably not, though Ontario judges have gone both ways. Bakhshi at trial and Hesson made such orders. Salehi doubted the jurisdiction, and Zoughaib, the most recent and most fully argued decision, refused to make one even after finding the husband’s religious objection insincere. What a judge can reliably do is strike his pleadings so he cannot participate in the case.
My husband says his faith forbids it. Does that end the matter? No. Section 21.1(4) of the Divorce Act allows a court to decline the remedy where there are genuine grounds of a religious or conscientious nature, but the court can inquire into whether the belief is sincerely held. In Zoughaib the husband’s objection failed that test, partly because he had granted talaq twice before and admitted his religion permitted him to do so.
He is only refusing because he is angry about the court case. Does that help me? Yes. Both Bruker and Zoughaib turned on exactly that. Anger at being sued, or a desire for leverage on parenting or money, is not a religious ground, and identifying it is often the key to the motion.
Is a talaq pronounced overseas recognized in Canada? Sometimes, and it is a separate question with real consequences. Recognition depends on residence and on a real and substantial connection to the jurisdiction that granted it, and if a foreign divorce is recognized, corollary relief under the Divorce Act is generally no longer available. Do not assume either way.
How early should I raise this? At the pleadings stage (i.e. the start of a court case, whether in your Application, Answer or Reply). The remedy is the striking of pleadings, so it has force only while the litigation is live. Leaving it to the end is the single most common mistake in this area.
Speak With an Ontario Family Lawyer
Being civilly divorced but religiously married is not a minor inconvenience. It affects whether you can remarry, how your community regards your status, and whether you can safely travel to the country you came from. Ontario law offers real tools, but they are time sensitive, the leading authorities pull in different directions, and the motion has to be built on a documented paper trail and, often, on expert evidence.
Chronicle Law P.C. advises clients across Mississauga, Toronto and the Greater Toronto Area on divorce, marriage contracts, and the removal of barriers to religious remarriage, in English and Urdu. Contact us at info@chroniclelaw.com or call 289-270-9996 to arrange a consultation.
This article provides general information about Ontario family law and is not legal advice. Every situation turns on its own facts and documents.