Divorce in Ontario involving a non-resident or dual citizen is not impossible, but it often requires more planning. The biggest issues are usually jurisdiction, immigration vulnerability, cross-border parenting and enforcement.
CAN YOU GET DIVORCED IF ONE SPOUSE LIVES OUTSIDE CANADA?:
A spouse can still apply for a divorce in Ontario even if the other resides outside the country under the Federal Divorce Act. Through this Act, an Ontario court can hear a divorce case if at least one spouse has been a habitual resident of the country for at least one year before the divorce application is started, as per section 3(1).
This means that both spouses do not necessarily need to live in the country; for example, if one spouse remains in Ontario and the other spouse moves abroad, the Ontario spouse may still be able to start the divorce here.
However, problems can arise when the family has strong connections to more than one country. The non-resident spouse may argue that another country has superior jurisdiction to deal with the divorce, especially if the children or property is located outside of Canada. In this case, the court must decide whether Ontario is the appropriate forum to hear the case.
Having citizenship in another country does not prevent a divorce in Ontario, but it may also affect practical issues. A dual citizen may have the ability to live, work, hold property or start legal proceedings in another country, a further example of a possible jurisdictional dispute.
DIVORCE AND IMMIGRATION STATUS:
Immigration status can play a role in divorce cases. Sometimes, one spouse’s ability to stay in Canada is connected to the marriage, especially if a spousal sponsorship application is still in progress.
If permanent residence has already been granted, a divorce does not automatically cancel that status. Still, immigration concerns can create stress and uncertainty within the process. Concerns about a parent’s ability to remain in Canada may influence future parenting arrangements and relocation requests. While Ontario courts primarily focus on family law issues, immigration consequences may form part of the broader context surrounding a divorce.
The governing legislation may include the Federal Immigration and Refugee Protection Act, in addition to the Divorce Act, depending on the circumstances which arise.
To read more about what happens to sponsorship or PR status during a divorce proceeding, read our blog post on the topic here.
CROSS-BORDER PARENTING AND CHILDREN:
Parenting is often one of the hardest parts of an international divorce. When one parent lives outside the country, ordinary parenting schedules may be affected, including weekly visits, pick-ups and drop-offs from schools.
Under section 16(1) of the Divorce Act, decisions about parenting or contract orders must be made in the best interest of the child. Under section 16(2), the Act also outlines that primary consideration should be given to the child’s “physical, emotional and psychological safety, security and well-being.”
In cross-border cases, parenting plans often need to be creative. Instead of frequent short visits, the child may need to spend longer periods with the out-of-area parent during school holidays and vacations. Video and phone calls, alongside detailed travel schedules, may also become important.
PROPERTY, FINANCES AND ENFORCEMENT OF SUPPORT:
Ontario family law depends on honest financial disclosure. If assets are outside Canada, the parties may need various documentation to allow for this disclosure. Common examples include property valuations or tax records.
Enforcing spousal or child support for someone residing outside Canada may also require extra legal steps depending on the other country involved.
CONCLUSION:
Divorce involving a non-resident spouse or spouse with dual citizenship often raises legal issues that extend beyond Ontario’s borders. Although Ontario courts may still grant a divorce where the requirements of section 3(1) of the Divorce Act are satisfied, parties may face additional practical challenges where it comes to parenting. Courts may need to determine the appropriate forum for the dispute.
With increased global mobility and international families becoming more common, cross-border divorce is an increasingly important area of family law. Seeking legal advice early can help spouses understand their rights and avoid unnecessary delays.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
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Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.
Categories: Divorce, Non-Resident, Dual Citizen, Immigration, Cross-Border Parenting