International Divorce: What Happens when Spouses Live in Different Countries

If you live in Ontario, but your spouse lives in another country – how do you obtain a divorce? The question might even be one of where you should get that divorce.

To begin answering such questions, it is important to start with the Divorce Act (“DA”). Per section 3 (1) of the Divorce Act, a court within a province may determine a divorce proceeding if either spouse has habitually been a resident within the province for at minimum one year prior to the start of the proceeding.

So, as long as one spouse fulfills the above requirement, it does not matter whether the other spouse has never resided in Canada.

However, it should be noted that it is possible for both an Ontario court and a foreign court to have the jurisdiction to determine a divorce proceeding. In this situation, an Ontario court would decide whether Ontario is the appropriate forum to determine the divorce proceeding, based on the factors laid out in the Jansen v. Karassik 2009 ONCA 245 decision.

The Court in Jansen stated that an Ontario court can assert its jurisdiction where the party is physically present in Ontario, where the party agrees, or consents or attorns to the jurisdiction of Ontario, or where Ontario has a real and substantial connection to the matter being litigated and service on the party in the foreign jurisdiction (service ex juris) has been properly effected. These factors are to be considered together.

As such, if you and your spouse have each commenced divorce proceedings, with one in Canada and another in a foreign jurisdiction, where both courts would have jurisdiction to hear the issues, the court in Ontario might ask the following questions:

• Did the other party consent or attorn in any way to the proceeding in Canada? Did they respond to pleadings, file their own with the court or attend court appearances?
• Is there a connection between Ontario and the divorce claim being made? Is there a connection between Ontario and the other party located in the foreign jurisdiction?
• Would it be unfair to the other party for the Ontario court to assume jurisdiction?
• Would it be unfair for the party making a claim in the Ontario court to not assume jurisdiction?
• Would the Ontario court be willing and able to recognize and enforce any foreign judgement that might be rendered by the other jurisdiction?

These are just some of the factors an Ontario court might take into consideration when they determine whether Ontario is the best forum to assume the determination of a divorce proceeding. However, if the foreign jurisdiction is deemed to be the preferred forum, it is critical to note that where a foreign divorce is granted and recognized by an Ontario court, the court will no longer have the jurisdiction to hear matters specifically related to spousal support.

With regard to parenting orders that might form part of a divorce case, it is important to note that these jurisdiction issues are governed by the Children’s Law Reform Act (“CLRA”). Per section 22 of the CLRA, an Ontario court has jurisdiction to make a parenting order (parenting time, decision-making responsibility or contact) where:

1. The child is habitually a resident in Ontario
2. If the child is not, the court must be satisfied that:
   1. The child is physically in Ontario;
   2. That the case for the child’s best interests can be met in Ontario;
   3. That no other parenting matters are already pending in a foreign jurisdiction;
   4. That the child has a real and substantial connection to Ontario; and,
   5. That on the balance of evidence, Ontario is the correct forum to hear the matter.

An example is helpful to illustrate the above concepts together. Where a husband has been habitually residing in Ontario for 7 years, and his wife and children have been living in France during that time, an Ontario court would likely have jurisdiction to determine their divorce proceeding. However, it is unlikely that the Ontario court would have the jurisdiction to make any parenting orders in the matter, because the children are not habitual residents of Ontario, nor are they physically present in Ontario.

Overall, these matters can be highly complex, and jurisdictional issues are often heavily fact-driven in terms of whether an Ontario court has the jurisdiction to determine the matters involved in a single case. As such, we recommend that you consult a licensed Family Law Practitioner for more information on your specific situation.

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• 30+ years family law litigation experience providing courtroom-informed reality testing
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