Canada is home to people from various places. What happens if a divorce is obtained in another country but one or both parties now reside in Canada? What rights, if any do they have with respect to all other issues stemming from a separation, such as support?
The answer can be found in Section 22 of the Divorce Act. According to the Act, a valid foreign divorce will most often be recognized by the Canadian Courts and rejected only in very rare circumstances.
A divorce from another country is likely valid in Canada if;
- There is a “real and substantial” connection with the jurisdiction at the time of the divorce. For example, the parties may have lived in the jurisdiction where the divorce was obtained; they may have been born there, they may have been married / divorced there. The courts states that a minimal connection will suffice as long as it is not weak or superficial. OR
- Either party has been “ordinarily resident” in the place that granted the divorce for a year beforehand.
According to case law, there are limited grounds under which a Court may refuse to recognize a foreign divorce. These include the following;
- Situations where notice was not given with respect to the divorce;
- Situations where the foreign order is contrary to public policy; although case law has stated that this ground is to have a very narrow application;
- Situations where the foreign court did not have proper jurisdiction; or
- Situations where fraud is present.
It should further be noted that Ontario courts do not have jurisdiction to hear or determine any corollary relief proceedings once a valid divorce has been obtained in a foreign jurisdiction. For example, once a divorce has been granted in another jurisdiction, Ontario courts may be barred from dealing with issues pertaining to support pursuant to Ontario / Canadian laws. In fact, support obligations under the Family Law Act do not apply to former spouses now divorced. In other words, if you obtained a valid divorce in another jurisdiction and it has been recognized by Ontario, you may be barred from seeking any support payments from your spouse under the Family Law Act and under the Divorce Act.
Thus, it is very important to seek legal advice to understand what the parties’ rights are under various jurisdictions prior to applying for a Divorce. Otherwise, you may find yourself in an unfavourable situation when it comes to other corollary issues stemming from your separation.
If you would like more information about foreign divorces or have any other questions pertaining to your matrimonial matter, please contact us in order to book a consultation with one of our lawyers at 905-581-7222 or you can visit our website.