Foreign Divorce and Child Support: Cheng v. Liu, 2017 CarswellOnt 1348 (Ont. C.A.)
This decision from the Ontario Court of Appeal canvasses whether an Ontario Court has the jurisdiction to award child support, spousal support, and equalization of net family property after a foreign court has issued a divorce.
At trial, the judge held that the Superior Court had jurisdiction to adjudicate a claim for corollary relief under the Divorce Act despite the fact that the parties divorce had been granted in China. In so ruling, the trial judge distinguished the case from Okmyansky v Okmyansky, 2007 ONCA 427, 86 OR (3d) 587 (ON CA), wherein the court reached the opposing conclusion.
The trial judge set out several reasons why this case was distinguishable from Okmyansky and thus why the Superior Court had jurisdiction despite the decision in Okmyansky. The trial judge noted that there were five bases on which Okmyansky was distinguishable:
- The respondent commenced her proceeding in Ontario before the appellant commenced his proceeding in China and well before the court in China granted him a divorce.
- The court in Ontario stayed the respondent’s application provisionally, on conditions that the appellant later breached.
- The appellant procured his foreign divorce in a proceeding in which he misled the court in China by making a false declaration as to his income, and thereby prevented that court from determining the issue of support.
- The court in China explicitly declined to exercise its jurisdiction over economic issues, including support and division of property, and explicitly left those issues for the court in Canada to determine.
- Without the court in Canada assuming jurisdiction over the issues of support and division/equalization of property, the respondent will be left without any forum in which to make her claims.
The Appellant concedes that the Ontario courts have jurisdiction under the Family Law Act to adjudicate the issue of equalization of net family property. Further, the Respondent does not submit that she can seek spousal support under the Family Law Act. Therefore, the appeal raised the following issues:
- Does an Ontario Court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction?
- Does an Ontario court have jurisdiction under the Family Law Act to determine the issue of child support after a foreign court has issued a divorce?
The Court noted that Okmyansky is clear and unequivocal authority 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. As such, the Court held that the trial judge erred in law when he attempted to distinguish this case from Okmyansky. Rather, Okmyansky was a binding authority and nothing in the circumstances of this case served to confer jurisdiction where the statute does not provide jurisdiction. Put simply, Ontario courts do not have jurisdiction to grant corollary relief under the Divorce Act after a foreign court has validly issues a divorce.
The Appellant did not dispute the jurisdiction of Ontario Courts to adjudicate the issue of equalization of net family property under the Family Law Act, despite the foreign divorce. Further, the Respondent does not submit that it is open to her to seek spousal support under the Family Law Act. As such, the remaining question was whether an Ontario Court has jurisdiction under the Family Law Act to award child support after a foreign court has issued a divorce, as this issue was not considered in Okmyansky.
The leading case on the aforementioned issue is Pageau v Szabo, 1986 CarswellOnt 3651 in which the court held that following a divorce, the court that granted the divorce would have exclusive jurisdiction over child support in the following situations:
- Whenever the divorce court has granted child support, no matter how nominal or how limited in time;
- Whenever the divorce court, after considering the question of support, has refused to grant it or rejected the prayer to grant it; or
- Whenever the divorce court has reserved its right to make subsequent pronouncements on support.
In any of the above situations, a court acting under the provincial statue would be barred from dealing with the issue of child support. However, where the divorce court has not dealt with child support in one of these three ways then there is scope for operation of provincial law, even if the divorce court has exercised its jurisdiction in making a custody order. This jurisprudence was helpful in the case at bar as it stands for the proposition that where a court issuing a divorce has not adjudicated the issue of child support, provincial legislation is a valid means of seeking a child support remedy.
After reviewing the jurisprudence, the Court held that the principles developed in the case law are analogous to a situation where a foreign court grants a valid divorce, but does not deal with the issue of child support. In the case at bar, while there is a valid divorce in place issued by the Chinese court, that court has expressly ruled that the issue of child support is better determined by the Ontario courts. Ultimately, the Court of Appeal concluded that Ontario courts have the authority to award child support under section 33 of the Family Law Act notwithstanding the fact that a divorce has been granted outside of Canada.