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Divorce can become more complicated when issues cross borders, such as when spouses reside in different countries or have assets outside Canada. In these cases, courts must evaluate whether they can assume jurisdiction over the matter. For Ontario courts to adjudicate certain matters, there must be a real and substantial connection between the subject matter of the claim and Ontario. But courts have found that claims for property or equalization are inextricably linked with support claims. This means that if Ontario courts correctly hear support claims, they may also be preferable to resolve the parties’ property claims.
Respondent Argues Ontario Lacks Jurisdiction to Hear the Case
In Pratt v. Korculanic, the applicant sought a divorce, child and spousal support, decision-making responsibility for the parties’ child, and equalization of net family property. However, the respondent alleged that Ontario lacked jurisdiction and alternatively sought an order to stay the application, as he had commenced divorce proceedings three weeks earlier in Spain. He claimed Spain was the proper forum to determine the parties’ legal issues. The parties had resided in Ontario before 2004, but subsequently resided in the Bahamas, where they continued to own property. However, before the separation, their habitual residence was in Spain. The applicant later relocated to Ontario with the child, although the respondent stated that he continued to reside in Spain.
The judge had to examine the relief that the applicant sought and determine whether Ontario courts had jurisdiction. First, the respondent carried the onus of proving that Ontario lacked jurisdiction to hear the applicant’s claims. The judge initially dealt with the applicant’s claim for divorce. Section 3(1) of the Divorce Act states that a court in a province has the jurisdiction to “determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding”. In this instance, the applicant had resided in Ontario for more than one year before commencing the application, so it was clear that she was ordinarily resident in Ontario, and Ontario courts had jurisdiction to hear the claim for a divorce.
Judge Finds a Real and Substantial Connection to Ontario
Turning to parenting issues, section 22(1)(a) of the Children’s Law Reform Act (CLRA) stipulates that an Ontario court can only make a parenting or contact order respecting a child if the child is habitually resident in Ontario at the commencement of the application. Yet, even if the child is not habitually resident in Ontario, the court can still make an order in a range of scenarios, including if the child has a real and substantial connection with Ontario, or if, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. The CLRA also defines “habitual residence” as the place where the child resided in whichever of the following circumstances last occurred:
- With both parents;
- If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
- With a person other than a parent on a permanent basis for a significant period of time.
Additionally, courts have established that the “real and substantial connection” test determines whether Ontario has jurisdiction over support claims. In Wang v. Ling, the Ontario Court of Appeal set out presumptive factors that indicated a real and substantial connection to establish jurisdiction in a family law proceeding. But in this case, the judge concluded that as both the applicant and the child were ordinarily resident in Ontario, that alone meant that there was a real and substantial connection to Ontario having jurisdiction over the support claims. Justice Diamond felt this was further supported by the fact that the child was registered for school in Ontario and that all her expenses would be incurred in Ontario. Consequently, Ontario had jurisdiction simpliciter to hear the claims for support.
However, the claims dealing with the parties’ property and equalization remained. The judge acknowledged that there was not a real and substantial connection between Ontario and the respondent, or between Ontario and the parties’ assets, since there was a property in the Bahamas as well as proceeds from the sale of a Spanish property. Additionally, the respondent had not resided in Ontario for many years and only visited for leisure or business purposes. The judge determined that Ontario did not appear to have jurisdiction to hear the equalization and property claim.
Support Claims are Linked With Property Issues
The applicant sought to have the court identify a new presumptive factor, as set out in Wang, which would establish Ontario having jurisdiction. However, Justice Diamond did not believe this case justified creating a new presumptive connecting factor to Ontario. Instead, Ontario could still have jurisdiction over the property claims because, although they were distinct, they were intertwined with her support claims. The judge remarked that “a claim for spousal support, while based upon a payor’s income, nevertheless takes into account the complete financial picture of the parties, together and separately”. Also, the parties’ financial situations will inform the court when creating a spousal support remedy.
This was significant, since, in Justice Diamond’s view, if a payor were entitled to most of the equalization, the dependent spouse would be more financially vulnerable with an increased need for spousal support. On the other hand, if the recipient received a significant share of the family property, the payor would likely argue that the dependent’s need for support was lessened.
Equalization Analysis Required to Come Before Spousal Support
On that basis, the judge felt that if Ontario was to adjudicate the spousal support claims, there was a real and substantial connection between the Province and the applicant’s property and equalization claims “in order to properly do justice between the parties in determining those support claims”. The judge looked to the Ontario Court of Appeal decision in Greenglass v. Greenglass for support. In that case, the Court remarked on the interplay between spousal support and the division of family property. The Court noted that the Divorce Act lists factors that must be considered when determining spousal support, including the financial means of the parties and all capital assets. The Court concluded that an equalization payment and the income-generating potential of each party’s assets “will almost invariably affect the support analysis”. Therefore, it was necessary to determine the division of assets and any equalization payment before the support analysis.
For the judge, the Greenglass decision was clear that the process for determining these claims was “based upon those two remedies being inextricably linked”. The judge also concluded that it is preferable to avoid multiple proceedings, which would result if Spain were to decide the property claims, while Ontario courts resolved the applicant’s support claim. Justice Diamond acknowledged that if Ontario had jurisdiction over the property claims, section 15 of the Family Law Act required that the property rights of the spouses would be governed by the “law of the place where both spouses had their last common habitual residence”. This meant that the property claim would be determined according to the laws of Spain. The judge admitted that could increase the time and expense of deciding the claim in Ontario, but it was not a reason to find that Ontario lacked jurisdiction to hear the claims.
Judge Dismisses Respondent’s Motion
Even though Ontario had jurisdiction, the respondent asked the court to decline to exercise its jurisdiction on the ground that there was a more appropriate forum to hear the application. At this stage, the onus rested with the respondent to demonstrate why Ontario should be displaced in favour of another jurisdiction. The judge cited the factors that can be considered when weighing whether to assume jurisdiction. However, the respondent brought little evidence to meaningfully assess the different factors.
Additionally, there was no indication of how the spousal support or the division of family property would be decided in Spain, or how Spanish law differed from Ontario. The judge had already decided that avoiding multiple proceedings favoured Ontario courts hearing the case. The respondent’s motion was dismissed.
Family Law Proceedings Can Cross Borders
Jurisdictional issues can entail a lot of uncertainty for parties trying to navigate the court system and have their claims adjudicated. Although avoiding a multiplicity of proceedings is preferable, various considerations can arise, and it can be unclear which legal system might make orders over family law issues.
Contact Johnson Miller Family Lawyers in Windsor for Complex, Cross-Border Family Law Issues
Jurisdictional issues can make family law disputes especially complex, particularly when property and support claims cross borders. Obtaining early legal advice is essential if you are navigating a separation or divorce involving international assets or residence outside Ontario. The experienced family and divorce lawyers at Johnson Miller Family Lawyers can help you understand your rights, determine where your case should be heard, and protect your interests throughout the process. Contact us online or call 519-973-1500 to schedule a consultation and discuss your options.
