Foreign divorce can undermine bid for spousal support

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Households at present are more and more cellular, usually pushed by a work-from-anywhere mindset. However when a pair that has ties to a couple of nation decides to separate, the query of which nation’s legal guidelines govern the break up can have vital penalties.

For a partner in Ontario, the jurisdictional controversy arising from separation is especially acute when a divorce is granted exterior of Canada. Merely put, the granting of a overseas divorce will extinguish the flexibility of a separated partner in Ontario to acquire spousal support underneath the legal guidelines of Canada and Ontario.

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This problem was just lately earlier than the Courtroom of Attraction for Ontario in two unrelated circumstances, choices for which had been launched in February.

Within the first case, the couple was married in 2012 in Russia, the place they resided on the time. The couple and their youngster moved to Ontario in March 2018 and have resided right here ever since. Simply days after transferring out of the household dwelling in November 2019, the husband utilized for a divorce in Russia.

Although the spouse objected that the divorce must be decided in Ontario, arguing that she wouldn’t be eligible to obtain spousal assist from her husband underneath the legal guidelines of Russia, the Russian courtroom granted the divorce in January 2020.

In July of that yr, the spouse commenced courtroom proceedings in Ontario looking for spousal assist. All through the Ontario courtroom continuing, it was understood that if the Russian divorce order was acknowledged in Canada, the spouse can be unable to pursue spousal assist in Ontario.

The spouse argued the husband sought and obtained the Russian divorce for the particular goal of avoiding his obligation to pay spousal assist. In different phrases, the husband engaged in forum-shopping, the observe of selecting a courtroom location that may lead to a extra beneficial end result.

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At trial, Justice Jana Steele of the Ontario Superior Courtroom of Justice agreed with the spouse and located the Russian divorce shouldn’t be acknowledged in Ontario. The decide famous that “the Russian divorce, which was obtained lower than two months after separation, offers (the husband) a back-door with which to flee his authorized duties, and runs counter to the 4 spousal assist goals set out in s. 15.2(6) of the Divorce Act.”

The husband appealed. In a ruling launched Feb. 28, Justice Jonathon George of the Courtroom of Attraction for Ontario additionally agreed with the spouse and dismissed the husband’s enchantment. Based on the decide, whereas “forum-shopping won’t all the time violate our rules of morality, ‘unfair forum-shopping ways’ most actually will.”

In reaching his conclusion, Justice George pointed to the sturdy emphasis positioned on the values of partnership and equality in Canadian family law. It’s these values which underpin a partner’s entitlement to spousal assist in Ontario.

In the end, the Russian divorce order was not acknowledged in Ontario and the spouse was in a position to pursue spousal assist.

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The second case earlier than the Courtroom of Attraction reached the alternative end result.

In that case, the couple was married in 1998 in Bangladesh, the place they resided with their three kids for a lot of the marriage. In 2015, the husband and kids obtained landed immigrant standing and moved to Canada the next yr. The spouse remained in Bangladesh.

Though the husband had sponsored the spouse for Canadian everlasting resident standing, he later gave her written discover of his intention to divorce her pursuant to the legal guidelines of Bangladesh. The spouse moved to Canada in February 2017, one month earlier than the Bangladeshi divorce grew to become efficient.

Three years later, the spouse commenced courtroom proceedings in Ontario whereby she sought a divorce and different aid, together with that the husband pay spousal assist.

The central problem within the Ontario courtroom proceedings, once more, was the popularity of the overseas divorce. Whereas the spouse mentioned the Bangladeshi divorce shouldn’t be acknowledged in Ontario, the truth that she had remarried in reliance on the Bangladeshi divorce weighed in favour of recognizing the overseas divorce in Ontario. Within the end result, the Bangladeshi divorce was acknowledged in Ontario.

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Writing for the Courtroom of Attraction for Ontario, Justice Julie Thorburn famous that the spousal assist provisions in Ontario’s Household Regulation Act don’t “embody the phrase ‘former partner’ when describing who might apply for assist.” The decide continues: “Ontario circumstances have due to this fact interpreted the Household Regulation Act as not allowing a former partner, equivalent to (the spouse), to hunt spousal assist.”

Justice Thorburn famous that “except and till the wording within the Household Regulation Act is modified to outline ‘partner’ to explicitly embody a former partner, or this line of circumstances is revisited, a celebration equivalent to (the spouse), to a overseas divorce, can not search spousal assist underneath the Household Regulation Act.”

The decide concluded her evaluation by acknowledging that the laws, in its present kind, “might lead to vital hardship” for many who could also be entitled to spousal assist in Ontario however for a divorce having been granted exterior of Canada. Justice Thorburn identified that laws in Alberta, British Columbia, Manitoba, Nova Scotia and Prince Edward Island ensures a declare for spousal assist will survive a overseas divorce.

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For Justice Thorburn, the treatment is straightforward: “Addition of the phrases ‘or former partner’ to s. 30 of the Household Regulation Act to make sure that spouses who divorce in overseas jurisdictions can carry purposes for assist in Ontario is a matter that, for my part, may very well be addressed by the Ontario legislature.”

For Ontario {couples} with connections to exterior international locations, the circumstances are a reminder to rigorously perceive their rights, entitlements and obligations, each earlier than deciding to relocate and when separating or looking for a divorce.

Adam N. Black is a associate within the household legislation group at Torkin Manes LLP in Toronto.

ablack@torkinmanes.com