Jurisdictional Issues

If you or your spouse lives in two or more places, there may be more than one jurisdiction applicable to your divorce proceedings. We discuss this situation in today's video.

Hello, my name is Andrew Feldstein. There are many scenarios that may cause more than one jurisdiction to be applicable to your divorce proceedings. In today’s session, I will speak about best practice when you or your spouse lives in two or more places.

Before we delve into the best approach in this scenario, it is important to canvass the relevant legislation. Both federal and provincial legislation apply in this scenario. Section 3 of Canada’s Divorce Act dictates that a court in a province has jurisdiction to hear a divorce proceeding if either spouse has been “ordinarily resident” in the province for at least one year immediately preceding the start of the proceeding.

Ontario’s Family Law Act, on the other hand, provides that the law of Ontario governs the property rights of spouses, unless their last “common habitual residence” was outside of Ontario. In that instance, the internal law of the previous place of residence governs.

Similarly, section 22 of Ontario’s Children’s Law Reform Act establishes two alternate bases of jurisdiction in the Ontario courts to make a custody or access order about a child. First, a court must be satisfied that the child was “habitually resident in Ontario at the start of the application. If the court is not satisfied that this was the case, the court may nevertheless exercise its jurisdiction if the following six conditions are met: first, the child must by physically present in Ontario; second, there must be “substantial evidence” concerning the best interest of the child available in Ontario; third, there must not be any outstanding application where the child is habitually resident; fourth, there must not be any foreign orders recognized by the Ontario courts; fifth, the child must have a “real and substantial connection” with Ontario; and sixth, a “balance of convenience” must favour Ontario.

The Children’s Law Reform Act defines a child’s “habitual residence” 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. As you can see, depending on the particular situation, different statutes may apply.

If you and your spouse have separated and no longer live in the same jurisdiction, you may be concerned that they might attempt to commence divorce proceedings in their current place of residence. However, jumping into a fight with your spouse over the jurisdictional issue may not be the most appropriate response.

The best practice when you encounter this issue is to first, retain counsel in your spouse’s jurisdiction and in your jurisdiction. Hiring lawyers in both jurisdictions will allow you to obtain the information necessary to determine the best jurisdiction for your case. For example, spousal support in Texas is limited to marriages which last ten years or longer. In Ontario, spousal support ranges from one-half to one times for each year of marriage, with marriages lasting 20 years or longer resulting in indefinite support if entitlement is established. So, if your spouse commences an application for spousal support in Texas and you live in Ontario, you may actually benefit from a foreign court order. You should not automatically assume that the law of the foreign jurisdiction will disadvantage you. That is why it is important to obtain the advice of a lawyer in that jurisdiction and to do the appropriate research and determine which jurisdiction may serve you best.

When dealing with jurisdictional issues, it is important to remember that jurisdictional arguments are more “legal” based than anything else in family law. For instance, in Ontario, decisions regarding the custody and access of children are made solely on the basis of the best interest of the child. However, where a jurisdictional issue concerns a child, the best interest of the child does not apply. As I mentioned, a court may only exercise its jurisdiction where the child is “habitually resident” in Ontario at the commencement of proceedings. Accordingly, your lawyer must ensure that your argument is framed in the appropriate manner.

At Feldstein Family Law Group, our lawyers are qualified to handle all of your family law needs, including jurisdictional matters. If your spouse has commenced an application in another jurisdiction, or you are concerned that this may occur, contact Feldstein Family Law Group today to consult with a lawyer. At your consultation, a lawyer will assess your jurisdictional matter and if needed, may refer you to a lawyer in another jurisdiction.

Thank you for taking the time to watch this video.

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