Cheng v. Liu - A Case About Proper Jurisdiction

This is a case about the proper jurisdiction in which to bring an application for divorce and corollary issues.

In Cheng v. Liu, the wife is a citizen of China and the husband is a naturalized Canadian who moved to Canada from China in 2002. The parties first met on an internet site in 2006 after which the husband made a 7-day visit to China. During the trip, the wife became pregnant. Upon learning of the pregnancy, the husband returned to China to marry the wife. Shortly after the birth of the child, the husband initiated the sponsorship application for wife and daughter. However, the husband was later convinced that the wife was using him as a means to immigrate to Canada and thus, ultimately withdrew the sponsorship application.

The wife then began application in Ontario for divorce, custody, child support, spousal support and property division. The husband independently filed a response claiming that he was not the child's biological father and sought annulment. A paternity test later showed that he was the child’s father.

The husband retained counsel and also filed for divorce in China and then brought a motion to determine jurisdiction. The court undertook a thorough review of the forum non conveniens test and relied on Amchem Products Inc. v. British Columbia (Workers' Compensation Board). Having reviewed the important factors, it was ultimately determined that the proper forum for issues was Chinese court. While the husband was resident in Ontario for the requisite period and thus the court had jurisdiction under Divorce Act to hear matters of custody and access, the wife conceded issues of custody and access must be adjudicated in China where she and child resided. Section 15 of Family Law Act states that property rights of spouses are governed by internal law of place where both spouses had last common habitual residence, which was China. Further, the most convenient forum to hear issues was China as hearing the case in China would avoid duplication of time, effort and money.

The only hesitation in determining that China was the proper jurisdiction to hear this application was that there would be no way for the court in Ontario to ensure that the husband abided by any orders that may be issued by the court in China. Therefore, to overcome the latter hurdle, the wife's application in Ontario was stayed under section 106 of the Courts of Justice Act on the husband's undertaking to comply with all procedural orders and rules of the Court in China.

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