There are a lot of issues in international divorce. Today, I’ll focus on the issue of when a court in Ontario will take jurisdiction of a family law case with an international element. I’ll also start by limiting things to when a couple initially separates; once there are court orders, either from Ontario or another jurisdiction, then things get a bit more complicated.
Basically, there is a three-step analysis in this situation. First, is there statutory authority under which the Ontario court has jurisdiction for the international divorce case? Second, if there is such authority, should the court decline to exercise its jurisdiction in favour of another court? Third, if Ontario does exercise jurisdiction, should it apply Ontario law or foreign law?.
Today I’ll deal with the first step of this analysis.
The first issue in any divorce case is the divorce itself. For a court in Ontario (or anywhere in Canada) to have jurisdiction over the divorce itself, at least one spouse must have been “ordinarily resident” in the province for at least one year immediately preceding the commencement of the proceeding.
“Ordinary residence” is not a defined term in the Divorce Act, but there have been a lot of cases dealing with it. It’s basically the real home of the person. Even if the person is temporarily posted abroad, they may still be ordinarily resident if there is an intention to return to Ontario and a serious and permanent attachment to Ontario.
If divorce proceedings are started in two different provinces within Canada on different days, the court in which the first proceeding was started has jurisdiction. If divorce proceedings are started in two different provinces on the same day, then the Federal Court has jurisdiction. However, if divorce proceedings are started in Canada and another country, then this consideration doesn’t apply.
Child Custody and Access
A court with jurisdiction over your divorce may grant you a child custody or access order under the Divorce Act.
You can still proceed under the Children’s Law Reform Act even if there is no jurisdiction under the Divorce Act. The test looks fairly complicated but in simple terms if the child normally lives in Ontario or is properly in Ontario when the case begins, then Ontario has jurisdiction. The test in full is:
The court has jurisdiction under the Children’s Law Reform Act where (a) the child is habitually resident in Ontario at the commencement of the application for the order; or (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
“Habitual” residence is the place where the child resided: (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time; whichever last occurred. The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing proceedings.
Whew! That test is quite the mouthful. However, in short, it boils down to: is your child properly living in Ontario – if so, then Ontario has jurisdiction over child custody and access.
Note that if your relationship is a common law one, the Divorce Act doesn’t apply, and there will need to be jurisdiction under the Children’s Law Reform Act.
Child Support and Spousal Support
Again, as with child custody and access, if a court has jurisdiction over your divorce, it can also make orders as to child support and spousal support (alimony) under the Divorce Act.
However, as with child custody and access, even if the court doesn’t have jurisdiction to grant a divorce, the court may still have jurisdiction over support claims – this time under the Family Law Act. All the Family Law Act requires for jurisdiction is the residence of either party in Ontario – you don’t even need to have lived in Ontario for any particular length of time. So, if someone separates and then moves to Ontario, they can apply for child support or spousal support in Ontario.
Division of property in Canada is regulated at the provincial level. In other words, the Divorce Act doesn’t deal with it at all. In Ontario, you need to look at the Family Law Act.
The Family Law Act does not have any special jurisdictional rules for property division. In other words, all that’s necessary is that the court has personal jurisdiction over the respondent, just as with any other type of legal claim.
The Family Law Act doesn’t deal with property division for unmarried couples. These cases use common law concepts of unjust enrichment. There are no special jurisdiction rules for claims for unjust enrichment. So, if the Ontario court has personal jurisdiction over the respondent, then the Ontario court has jurisdiction over an unjust enrichment claim.
This is a brief outline of the first step of analysis in an international divorce case. It’s important to remember that this is just the first step. Just because the Ontario court has jurisdiction over a case doesn’t mean that the Ontario court will exercise its jurisdiction. In the near future, I’ll talk about when the Ontario courts will and won’t exercise their jurisdiction.