Child Support, Spousal Support, and Foreign Divorce
A recent decision from the Ontario Court of Appeal analyzed whether an Ontario court has the jurisdiction to make decisions regarding child support, spousal support, and equalization of net family property after a foreign court has granted a divorce.
The Court of Appeal referred to the facts of this case as “unusual”, and they warrant a thorough review.
The father, an engineer, is a Canadian citizen who has resided in Mississauga since approximately 2005. All of his assets, property and sources of income are in Canada. The mother resides in Tai’an City, China where she works as an office clerk. She has never been to Canada.
The parties were married in China in August 2006, and had a daughter in February 2007. The daughter has resided with her mother in China for her whole life. For most of the marriage, the father lived in Canada and the mother lived in China. They separated in late 2007/early 2008.
The mother brought a divorce application in an Ontario court in March 2009, seeking divorce, spousal support, child support, custody of the daughter, and equalization of net family property.
The father brought a divorce application in China, seeking a divorce, custody of the daughter, and equalization of net family property. In the interim, the mother sought a motion for temporary child support in the amount of $825. The father brought a motion, heard by Justice Baltman, seeking to have the Ontario court proceedings halted so the matter could continue in China. The mother sought to have her application heard in Ontario.
Justice Baltman’s Decision: Support Proceedings in Ontario Should be Halted
On the father’s motion to halt proceedings, Justice Baltman noted the short length of the marriage, found that the crucial issue was child support, and concluded that, logically, child support should be decided in the same jurisdiction as custody and access. Therefore, she held that China was the more appropriate forum for the proceedings, and the hearing in Ontario should be halted. Justice Baltman wished to ensure that any child support order made in China could be enforced against the father and his assets here in Canada and ordered that “the husband…be held to his undertaking to this court to abide by Chinese court orders”.
The Chinese Family Court
The proceedings continued in China, where the Chinese family court granted the divorce, awarded custody of the daughter to the mother, and granted sole ownership of real property purchased in China pre-marriage to the mother.
The Chinese court was unable to reach a decision on support and equalization, since the mother had not been given full financial disclosure prior to the divorce and custody decision. The Chinese court directed that if the parties could not reach an agreement on these issues, an application could be brought in Canada to finalize matters.
The father appealed the Chinese family court decision in China. The Chinese appellate court decided that Chinese system was not the best forum in which to decide the remaining issues since all the father’s assets and properties were in Canada. The father applied again for a retrial, and his application was dismissed on the same basis (that all relevant property and assets were in Canada).
The mother subsequently brought a motion to the Ontario Superior Court requesting that the proceedings here be reinstated because the father had failed to make full financial disclosure and had therefore breached the original trial judge’s order.
The Ontario court ordered the issues to be divided so that the preliminary issue of jurisdiction could be decided first. If the court concluded that it had jurisdiction, a trial could then be held to decide the outstanding issues of spousal support, child support, and equalization.
The Jurisdiction Decision
The original trial judge held that the Ontario Superior Court did have the necessary jurisdiction to hear a claim for relief under the Divorce Act, despite the fact that the divorce had been granted in China.
In coming to this decision, the judge distinguished the case from Okmyansky v. Okmyansky, a landmark decision on foreign divorce, and one in which the court reached the opposite conclusion (that an Ontario court could not make decisions about support where a divorce had been granted outside of Canada).
The judge provided a number of reasons why the facts in this case were sufficiently different from those in Okmyanski, such that the court could assume jurisdiction to hear the respondent’s application for support and equalization, despite the fact that the divorce was granted in China:
- The mother had commenced her proceedings in Ontario before the father commenced his proceeding in China, and long before the Chinese court granted the divorce;
- The Ontario court had halted the mother’s application, on conditions that the father subsequently breached;
- The father obtained his foreign divorce in a proceeding that misled the Chinese court by making a false declaration about his income, which prevented that court from being able to determine the issue of support;
- The Chinese court explicitly declined to exercise its jurisdiction over outstanding economic issues, including support and division of property, and explicitly left those issues for a Canadian court to determine;
- Without the Ontario court assuming jurisdiction over the issues of support and equalization of property, the mother will be left without any forum in which to pursue her claims.
The father appealed the finding of jurisdiction.
The Court of Appeal
On appeal, the father conceded that the Ontario court system did have jurisdiction to decide on outstanding issues of net family property, but wanted a decision on the following issues:
- Does an Ontario court have jurisdiction to hear and determine corollary relief (i.e- child or spousal support) under the Divorce Act following a valid divorce in another jurisdiction?
- Does an Ontario court have jurisdiction under the Family Law Act to determine the issue of child support following a valid foreign divorce?
The Divorce Act
The Court of Appeal acknowledged that the unique facts in this case were significantly different than those in Okmyansky. Specifically, here, the mother’s application for relief in Ontario predated the Chinese divorce application. In Okmyansky, the application for relief in Ontario was not commenced until after the foreign divorce was issued. However, Okmyansky is clear and unequivocal authority that an Ontario court does not have jurisdiction to hear and determine a claim for corollary relief under the Divorce Act once a foreign divorce has been granted. The original trial judge erred in attempting to distinguish the facts in this matter from that case, nothing in the unique circumstance of this case provides jurisdiction where a statute (i.e.- the Divorce Act) does not do so.
Ultimately, an Ontario court does not have jurisdiction to make a decision about child or spousal support if a divorce has been granted in another jurisdiction.
The Family Law Act
Unlike the issue of corollary relief under the Divorce Act, there was no disagreement here between the parties about the issue of equalization of net family property under the Family Law Act. The law is also clear that an Ontario court can do so, notwithstanding a foreign divorce.
An outstanding question, however, was the issue of child support under the Family Law Act in light of the foreign divorce.
The Court of Appeal recognized that there is a line of caselaw that holds that where a provincial court has issued a divorce, but not addressed the issue of child support, the courts in another province have jurisdiction to order child support under their provincial legislation. For instance, in Pageau v. Szabo, the judge stated that a court acting under provincial statute would be unable to deal with the issue of child support if:
- The divorce court (i.e. the court granting the divorce) has granted child support, no matter how limited in time or amount;
- The divorce court, after considering the issue of support, has refused to grant it;
- The divorce court has reserved its right to make subsequent decisions on support.
However, where the divorce court has not dealt with the issue of child support in any of the above three ways, then there is room for a court acting under provincial law to make a support decision.
The Court of Appeal found that this line of cases is equivalent to a situation in which a foreign court grants a valid divorce but does not deal with child support, such as here, where the divorce was dealt with by Chinese family court, and that court specifically indicated that support issues would be better addressed in Canada.
The Court of Appeal concluded that Ontario courts have jurisdiction to award child support under s. 33 of the Family Law Act, and there is nothing in the legislation that restricts this authority in situations where a foreign divorce has been granted. Relying on the Family Law Act where a remedy is not available under the Divorce Act is not problematic; rather, the two statutes operate in harmony to ensure that a remedy for child support is always available.
The Court of Appeal ultimately held that the Ontario Superior Court of Justice has jurisdiction under the Family Law Act to make decisions on child support and equalization.
If you have questions about divorce or separation, particularly complex asset division cases, or matters involving foreign jurisdictions or assets in other countries, contact Windsor divorce lawyer Jason P. Howie, online or at 519.973.1500.