Multi-jurisdictional divorces (where one party is no longer a resident of Canada) require legal expertise in both the foreign and domestic jurisdictions.
It is important to know your rights in both jurisdictions to ensure the best possible outcome before you commit to proceeding in either location. Without proper legal representation by a skilled divorce lawyer, you may forfeit your right to support or property division if a foreign divorce is granted. The Divorce Act governs all Canadian divorces and will uphold the validity of a foreign jurisdiction for a divorce ordered in another country when granted by the appropriate authority (s. 22).
For example, in Younis v. Bar, it was determined that an Ontario court had no jurisdiction to deal with issues of spousal support or net family property because the mother had previously attorned to (had agreed to be bound by) the jurisdiction of a Texas court.
In Ontario, multi-jurisdictional divorces are governed by both legislation and judicial development.
The 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 matter.
Ontario’s Family Law Act (s. 15) 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.
The Children’s Law Reform Act, (s. 22(1)) states that Ontario courts may order custody and access only where:
The child is habitually resident in Ontario or if not habitually resident, if the court is satisfied that the child is physically in Ontario, and that the case for the child’s best interest can be met in Ontario, that no other custody or access matters or orders in a foreign jurisdiction are pending, that the child has a “real and substantial” connection to Ontario, and that on the balance of evidence Ontario is the correct forum to hear the matter.
A child’s “habitual residence” is defined as the place where he or she resided either with both parents, one parent, if the parents are separated, or with a permanent third-party caregiver for a significant period of time (Children’s Law Reform Act, s. 22(2)).
Spousal Support & Multi-Jurisdictional Divorce
The most important issue regarding multi-jurisdictional divorce proceedings is that where a valid foreign divorce has been granted, Ontario courts do not have the jurisdiction to hear matters regarding spousal support.
Where Ontario is able to assert its power over an out-of-province matter, parties have been subject to a test to determine whether Ontario’s jurisdiction is appropriate.
In Jasen v Karassik, it was determined that Ontario may assert its jurisdiction where:
- The [party] is physically present in Ontario;
- The [party] consents, agrees, or attorns to the jurisdiction; or
- Ontario has a real and substantial connection to the matter being litigated and proper upon the responding party has been executed.
It is important to note these scenarios represent an exception. Normally when a divorce is granted in a foreign jurisdiction, it cannot be modified by an Ontario court. If you are served with an Application for divorce from a foreign jurisdiction, seek legal counsel as soon as possible to ensure that the best possible forum is used.
ISOA – Interjurisdictional Support Orders Act, SO 2002
Ontario’s Interjurisdictional Support Orders Act is a statute that sets out the process for the enforcement of a support order when one party lives in Ontario and the other party lives elsewhere in a reciprocating jurisdiction.
Feldstein Family Law Group P.C. Can Help
With our decades of experience in family law, we at Feldstein Family Law Group P.C. are prepared to take on complex multi-jurisdictional divorce cases. Our Ontario divorce lawyers can advise you of your rights and how to proceed.
Learn more by calling (905) 581-7222 to schedule a free in-office consultation.