Where parties have obtained a divorce from a foreign court, there may be consequences on their ability to obtain relief from Ontario courts. Generally, the approach in Canadian law is to generously recognize divorces from other jurisdictions. But does that impact how parties may pursue corollary relief such as spousal support or child support under Canadian legislation?
There Must be a Canadian Divorce to Claim Spousal Support
The issue was addressed in Rothgiesser v. Rothgiesser. That case concerned the jurisdiction to make a corollary relief order under the Divorce Act when the parties had obtained a foreign divorce. The case centred on the prior wording of section 4 of the Divorce Act, which stated that only the court that had granted the divorce had jurisdiction in a corollary proceeding. The court held that the Divorce Act does not give Canadian courts jurisdiction to make support orders in the absence of a Canadian divorce.
Looking at the intention behind the legislation, the court found that Parliament did not intend to give Canadian courts jurisdiction over foreign divorces. There was also some doubt about the constitutionality of the federal Parliament enacting legislation dealing with support obligations in the absence of a Canadian divorce. The court recognized that Parliament’s jurisdiction over support is ancillary to its jurisdiction over divorce. And any attempt to legislate on support obligations where there is no divorce may encroach on provincial jurisdiction.
The issue was revisited in Okmyansky v. Okmyansky. This time the court considered the updated Divorce Act. Looking at the history of the Divorce Act the court found no indication that Parliament intended that the changes would confer jurisdiction to hear corollary relief proceedings following a valid foreign divorce. There was non-intention to “broaden the scope of Canadian divorce legislation to permit a Canadian court” to make such an order when the divorce was obtained from a foreign jurisdiction. The description of spousal support, custody, and child support as corollary relief suggested that Parliament’s intention was that these orders should be meant as relief that is incidental to the granting of a divorce. Consequently, if no Canadian divorce was granted, they could not properly be viewed as corollary relief.
Provinces May Grant Child Support Where Parties Obtained a Foreign Divorce
One question that remained unresolved was whether an Ontario court had jurisdiction under the Family Law Act to award child support after a foreign court had already issued a divorce. This issue was not addressed in Okmyansky.
A 2014 case, Morwald-Benevides v. Benevides, distinguished the decision in Okmyansky on the grounds that here the wife was not seeking corollary relief, but instead sought child support as a matter of provincial law under the Family Law Act. The judge recognized that the situation was different from the facts in Okmyansky. Accounting for all the circumstances, the judge concluded that jurisdiction weighed in favour of Ontario courts assuming jurisdiction and granting the necessary orders.
There was also some significance to jurisprudence that had previously held that where a court in one province had issued a divorce but had not dealt with child support, then courts in another province had jurisdiction to order child support according to provincial legislation. The court referenced older caselaw, including Pegeau v. Szabo, which examined when a court that originally granted the divorce would have exclusive jurisdiction and when courts of another province might be able to make an order. That case found that “so long as the divorce court has not in any way adjudicated on the matter of child support, it is open to a party thereafter to invoke provincial law for relief”. Importantly there was room for provincial law even though the divorce court had exercised jurisdiction in making an order.
There was a similar finding in French v. Mackenzie. In that case Justice Kennedy stated that if there has been a divorce but no child support order made under the Divorce Act, there remains an option to bring child support proceedings under federal or provincial legislation. Combined, the cases stood as authority that where a court granting a divorce had not adjudicated the issue of child support, parties may turn to provincial legislation to obtain a child support remedy.
For the Court of Appeal, the principles developed in the case law were analogous to situations where a foreign court grants a valid divorce but does not make an order dealing with child support. There was also no statutory prohibition against using the Family Law Act in these circumstances. Looking to the Family Law Act for a remedy was instead consistent with the objective of ensuring that parents provide support for their dependent children. And since child support could be claimed under provincial legislation following a divorce, there was nothing to preclude a judge from making an order under section 33 of the Family Law Act. Parties could look to provincial legislation as authority to award child support in situations where a divorce was granted outside of Canada.
Spouse Alleges Duress Arguing Foreign Divorce is Invalid
Abraham v. Gallo is a more recent case where a party sought a declaration that a foreign divorce was not valid in order to claim spousal support under Canadian legislation. The applicant sought a declaration that an Egyptian divorce was not enforceable in Ontario. The respondent argued the divorce was valid and sought dismissal of the claim for spousal support due to lack of jurisdiction. Citing the decision in Rothgiesser, the court recognized at the outset that corollary relief could only be granted as a corollary to a Canadian divorce. A former spouse has no standing to seek spousal support under the Family Law Act, so the applicant’s claim to spousal support could only succeed if the Egyptian divorce was not valid in Ontario.
Legal presumptions favour the validity of foreign divorces, leaving the onus on the party alleging a divorce is invalid to provide evidence that the divorce was not properly obtained. Here, the applicant alleged duress on the basis that the respondent pressured her into formalizing the Egyptian divorce. The respondent denied he chose the Egyptian process to eliminate the spousal support claim but rather because he believed the divorce could move more quickly in the Egyptian forum. The applicant alleged duress because the respondent threatened to involve her family, knowing they were traditional and would suffer embarrassment if her separation became known. It was suggested that this threat of embarrassment to her family constituted duress and that she had no choice but to formalize the Egyptian divorce. The applicant agreed to the Egyptian process to keep up appearances, but the court found that duress did not invalidate her consent to the divorce.
Carefully Consider How a Foreign Divorce Can Impact Your Rights
When parties have obtained a foreign divorce Canadian courts can be limited in exercising jurisdiction and granting corollary relief. In some circumstances, if the divorce was not heard in Canada claims for corollary relief cannot be adjudicated. However, in some cases parties may still pursue child support under provincial law where the foreign court has not dealt with the issue. In such cases courts can properly exercise jurisdiction over the issue. Spouses should carefully consider their options before obtaining a foreign divorce. The decision could see a party giving up rights they would be entitled to under Canadian law and may limit their ability to obtain relief in Canada.
Contact the Divorce Lawyers at Howie Johnson Barristers & Solicitors for Assistance with Foreign Divorces
The family lawyers at Howie Johnson Barristers & Solicitors in Windsor focus exclusively on family law matters. We have extensive experience assisting with particularly complicated issues such as high-asset divorce, complex property & asset division, spousal support and child support.
Conveniently located in Windsor, our firm proudly serves clients in Essex County and the surrounding areas. To speak with a member of our family law team regarding concerns about asset division, reach out to us online or call us at 519-973-1500.