Younis v. Bar – Jurisdiction and Foreign Divorce Orders

This case considered whether an Ontario court had the jurisdiction to decide issues of spousal support and net family property where such issues had previously been decided by a court in Texas.

Background

The parties were married in November 2009 in Ontario and lived apart until July 2010. Between July 2010 and September 2010 they resided together in Texas.

In September 2010, the Applicant left Texas while pregnant with the parties’ child and returned to Ontario. The child was born in December 2010 in Ontario.

The Respondent commenced proceedings in Texas in July 2011 and the Applicant commenced proceedings in Ontario in August 2011 after being served with the Texas pleadings.

In August 2011, the Ontario Superior Court granted the Applicant temporary interim custody of the child. In September 2011, a hearing was held in the District Court of Texas, which declined to assume jurisdiction relating to the child, as it found that the child’s residence was in Ontario. However, the Texas court held that the divorce could otherwise proceed in Texas and granted an Order accordingly; this Order was not appealed by either party.

In December 2011, on appearance by counsel for both parties, the Texas court issued a final divorce decree on all matters except those relating to the child, which decree was not appealed by either party.

In the case brought before the Ontario Superior Court, the Applicant argued that the Ontario court had jurisdiction to determine issues of spousal support and division of property as she had not attorned to the jurisdiction of the Texas court and as such, the order in Texas was not validly obtained.

Analysis

In deciding this case, the court stated that the law is very clear that where a foreign court has made a valid divorce, an Ontario court does not have jurisdiction to determine a proceeding for corollary relief (i.e. spousal support) under the DivorceAct.

In addition, the court held that once a foreign court grants a final divorce order, a spouse is no longer a spouse for purposes of an application for support under Ontario’s Family Law Act.

In relation to the Applicant’s argument that she did not attorn to the jurisdiction of the Texas Court, the Ontario court found that in order for this argument to stand, the Applicant should have appealed the Texas court’s jurisdiction order, which she failed to do. Instead, she went on to participate in the December 2011 proceeding which issued the final divorce decree.

In the result, the Ontario court held that it had no jurisdiction to deal with the issues of spousal support or net family property.

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