Just because you were married elsewhere or have a foreign divorce in Canada, it does not necessarily mean that Canadian courts will not hear your matter.

Take, for example, a recent case in 2017, where the Court of Appeal[1] handled a case involving international divorce in Canada. A Canadian citizen (husband) was married to a person residing in China (wife). The wife had never come to Canada; however, the couple had one child born to the marriage while the husband lived in China briefly.

The wife sought a divorce in Ontario, Canada, including spousal support, child support, and custody of the child pursuant to the Divorce Act. She also requested equalization of net family property under the Family Law Act.

In response, the husband filed for divorce in China, seeking a divorce, custody and equalization or property.

In response, the wife brought a motion in an Ontario court requesting temporary child support which was granted.

The husband then requested that his application should be heard in China. The Ontario court agreed and allowed the application to move forward in China. The underlying reasons were that the application involved custody, access and support; therefore, the hearing should be pursued in the jurisdiction of the matrimonial proceeding.

Custody and a divorce were granted by the court in China to the wife. However, the issue of support and equalization were left to be brought forward in the Ontario courts as the husband did not disclose his proper financial information and all his financial holdings were in Ontario/Canada.

Legal Recognition of Foreign Divorce in Canada

The Court of Appeal of Ontario was required to determine two questions:

• Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction?
• Does an Ontario court have jurisdiction under the Family Law Act to determine child support after a foreign court has issued a divorce?

The Court of Appeal held that Ontario Superior Court has jurisdiction to determine the issues of child support and equalization of net family property pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). However, there is no jurisdiction under that legislation, or otherwise, for the Superior Court to order spousal support.

Will a Foreign Divorce Be Recognized in Canada?

The Canadian courts have stated that divorces obtained in other countries will be held valid if the laws of the parties’ domicile (at the time of their divorce) would have recognized a foreign divorce.[2]

In Canada, s. 22 of the Divorce Act states that a divorce granted by a foreign jurisdiction will be recognized in Canada if either former spouse was ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of the proceedings for the divorce.

In looking for a divorce, that is also a requirement. At least one of the parties has to be considered a “resident”. For more information on what that may look like, contact our Family Law Department at Devry Smith Frank LLP.

Remarriage After Foreign Divorce in Canada

To obtain authorization to remarry in Canada, a legal opinion from a lawyer is required. The lawyer must provide reasons why the foreign divorce should be recognized in Ontario.

If you need help with a foreign divorce being recognized in Ontario, it is worthwhile to discuss your case with a family lawyer in our office.

For more questions related to family law, visit our website or contact Katelyn Bell at Devry Smith Frank LLP to discuss your specific family law situation and options. She can be reached at 416-446-5837 or Katelyn.bell@devrylaw.ca.

This blog was co-authored by Law Student, Kathleen Judd.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations `and needs.”

[1] Cheng v. Liu, 2017 ONCA 104

[2] Zhang v. Lin, [2010] A.J. No. 755, 2010 ABQB 420, 500 A.R. 357, at para. 53