Immigration and Divorce

Thinking about moving to Ontario, Canada? Before you make such a large decision it is crucial to understand the impact that it will have on your rights and obligations as a spouse and parent.

There is much debate about when a person is considered a resident of Ontario. Is it once you step foot off the plane and onto Canadian soil that Canadian laws and statutes apply for the purposes of married couples? What appears to matter most to the determination is intention of residence. Do you have a return ticket to your home country? Are you here on vacation? Or have you packed up your life and moved all your belongings with the intention of living in Canada? If you answered yes to the last question, you likely will be bound to the laws of Canada as soon as you arrive. This means that if your spouse chooses to get a divorce once you move to Canada, you may be bound by all the obligations of a spouse under the Divorce Act, even if you did not get married in Canada. Consequently, you may owe, or be entitled to, spousal support and child support, and can expect property division/equalization of net family property, all of which will be discussed further below.

Considerations

If you are considering moving to Ontario, here are some factors you ought to consider:

1. Fairness and neutrality are pillars of Canada’s divorce legislation.

Consequently, Canada, unlike many other countries, offers separating spouses considerably more financial advantages or disadvantages (depending on if you are the payor) than most other countries. Canada also has a “no fault” divorce system. This means that the court will not consider conduct within the marriage when making decisions regarding separation, divorce, support, child custody and access, or any other matter arising from your relationship breakdown. As such, when you and your spouse get a divorce, Ontario’s Family Law Act (FLA) provides for the equal division of the value of all assets acquired during the marriage; this is known as equalization of net family property. For example, if you have 10 million dollars worth of assets, and your spouse has 5 million dollars worth of assets, you will have to pay your spouse 2.5 million dollars to equalize. To learn more about how equalization is calculated, see our website here.

2. Are you currently married?

If the answer is yes, then the Divorce Act will apply to you. The Divorce Act governs all Canadian divorces and sets out rules relating to child support, custody, and access, as well as spousal support.

It is important to note that your marriage will only be legally recognized in Canada if it accords with the following three Acts:

• Marriage (Prohibitive Degrees) Act
• Civil Marriages Act
• Zero Tolerance for Barbaric Cultural Practices Act

3. To get a divorce in Ontario, you need to have lived here for a year.

Both federal and provincial legislation are relevant to this determination. Canada’s Divorce Act states that the Ontario Superior Court of Justice has jurisdiction to hear a divorce proceeding if either spouse has been “ordinarily resident” in Ontario for at least one year immediately preceding the start of the proceeding. This means that if you have lived in Ontario for at least one year, and your spouse resides in another country, Ontario has sufficient jurisdiction to hear your divorce matter.

Section 15 of Ontario’s FLA contemplates property rights associated with marriage, which are “governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario.” This section of the Act means that if the last common habitual residence was not Ontario, the law of the foreign jurisdiction will prevail. For example, if you and your spouse’s last common habitual residence was Texas then the law of Texas will prevail over Ontario’s laws pertaining to property rights associated with marriage.

4. For support or equalization under the FLA, Ontario must be the habitual residence.

If Ontario is your habitual residence, you may owe or be entitled to child and spousal support, and there may be equalization of net family property. It is important to note that Ontario could be deemed your habitual residence even after only one week of living in Ontario and even though you cannot obtain a Divorce, you can obtain support under Provincial Legislation and make a claim for the division of property. Learn more about how child support and spousal support are calculated by reading our website.