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Navigating the complexities of divorce is challenging enough, but when it involves international borders, the legal landscape becomes even more complicated. If you’ve obtained a divorce in a foreign country, you might be wondering: will it be recognized in Ontario? And what happens to issues like child support, property division, or spousal support? Recent cases have clarified how Ontario courts view a foreign divorce, often limiting their ability to hear certain family law issues if the divorce is considered presumptively valid. Understanding these rules is crucial for anyone with cross-border family law concerns.
Father Sought Declaration that Ontario Did Not Have Jurisdiction
Wei v. Song involved a motion by the father for an order dismissing the mother’s application and a declaration that Ontario does not have jurisdiction to determine the outstanding issues between the parties, including parenting issues, property division, and support issues. Alternatively, he sought a declaration that the Shanghai People’s Court was the more appropriate forum to deal with those issues. The parties were married in China and had two children. In July 2023, they obtained a divorce order from the Shanghai People’s Court and entered into a final agreement that dealt with parenting, property, and monetary issues. Later that year, the parties and the children came to Toronto with the paternal grandmother. However, there was a breakdown in the relationship between the mother and the paternal grandmother, and the father, grandmother, and the children returned to China. The father explained that the children’s visit to Toronto was intended to be temporary. The mother disputed that and claimed that the parties had planned to relocate. She alleged that the father deceived her and took the children back to China, and lied about his intentions to stay in Canada. She claimed the father had assets in Canada that should be equalized and also sought parenting time, child support, and spousal support.
The judge granted the father’s motion as the parties had attorned to the jurisdiction of the Shanghai People’s Court. In addition, that court had already issued an order in August 2023 that dealt with parenting, equalization, and support. Overall, the judge believed the Shanghai People’s Court was the more appropriate forum to deal with any remaining issues. It was also important that there was no dispute about the validity of the divorce order that the Shanghai court granted. As the judge noted, “no evidence that the divorce granted in China was obtained through unfair forum-shopping tactics or for other improper reasons”.
Court Finds the Parties Attorned to the Jurisdiction of Chinese Courts
The final agreement, settled by the Shanghai People’s Court, covered parenting, property, and monetary issues. The agreement also stated that after the divorce, the children would live with the father and that the parties would resolve problems related to their residence by themselves. The father also produced a chart indicating that between 2014 and 2019, the children were habitually resident in China and not Canada.
Section 22(1)(b) of the Children’s Law Reform Act provides that a court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child, where the child is not habitually resident in Ontario, if the court is satisfied that six enumerated factors are met:
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time, or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Justice Shin Doi reviewed the factors but did not find evidence that the children’s best interests would be met in Ontario, that the children had a real and substantial connection with Ontario, or that, on a balance of convenience, it would be appropriate for Ontario to exercise jurisdiction over the case. One of the children attended school in China, and both were cared for by their grandmother. The judge believed that moving the children to Toronto would not be in the children’s best interests as it would disrupt their lives. Overall, the judge thought it was more appropriate for jurisdiction to be exercised in China, where the parties entered the final agreement. Since that was where the father, the children, and the grandmother resided, and where most of the assets were located, it would also be more convenient and less expensive for further proceedings to be conducted in China.
There were no concerns about the validity of the foreign divorce. Justice Shin Doi acknowledged that the divorce granted in China was presumptively valid. Section 22 of the Divorce Act states that a divorce that is given pursuant to the laws of a foreign country shall be recognized “for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country” for at least one year preceding the commencement of divorce proceedings. In this case, the mother and the father resided in China for at least one year before initiating their divorce proceedings. China was also their last ordinary habitual residence. In Okmyansky v. Okmyansky, the Ontario Court of Appeal held that an Ontario court “does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce”.
A Former Spouse Cannot Bring a Claim for Spousal Support
Despite the foreign divorce, the judge determined that an Ontario court would have jurisdiction over certain issues. The judge looked to Cheng v. Liu, which held that Ontario courts do not have jurisdiction under the Divorce Act to hear a claim for corollary relief once a foreign divorce has been recognized as valid. Nevertheless, Ontario courts could still adjudicate equalization of net family property and support issues under the Family Law Act regardless of a foreign divorce. However, in this instance, the Shanghai People’s Court already dealt with those issues, and the final agreement stipulated that the parties would own their respective properties.
Since the parties had divorced and were now former spouses, the mother could not now bring a claim for spousal support under either the Divorce Act or the Family Law Act. The judge cited Sonia v. Ratan, a case reiterating that Ontario courts have interpreted the Family Law Act as prohibiting a former spouse legally divorced in a foreign jurisdiction from seeking spousal support in Ontario. The judge granted the father’s motion and dismissed the mother’s application. The Shanghai court was the more appropriate forum to deal with any remaining issues.
Canada’s Divorce Act Recognizes Foreign Divorces
In this case, the judge found that the Shanghai People’s Court should exercise jurisdiction, as that was where the divorce was obtained and the parties’ final agreement was entered into. The case also makes clear that where the children do not have a real and substantial connection to Ontario, and without evidence that the children’s best interests would be met in Ontario, there is no basis for an Ontario court to assume jurisdiction and make a parenting order.
Windsor Cross-Border Divorce: Experienced Legal Assistance for International Family Law Cases
Are you facing the complexities of a cross-border or international divorce? The legal landscape can be challenging when a foreign divorce impacts an Ontario court’s jurisdiction to hear corollary relief proceedings. Our experienced divorce lawyers at Johnson Miller Family Lawyers in Windsor are experienced in navigating these intricate situations, including parenting, property division, and support. We provide dedicated assistance to clients with ties to foreign jurisdictions, ensuring that your rights and interests are protected. Contact our Windsor firm today by calling 519-973-15000 to schedule a consultation and discuss how we can help with your international family law matter.
