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Adam Black: The query of which nation’s legal guidelines govern the break up can have important penalties
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Households as we speak are more and more cellular, usually pushed by a work-from-anywhere mindset. However when a pair that has ties to multiple nation decides to separate, the query of which nation’s legal guidelines govern the break up can have important penalties.
For a partner in Ontario, the jurisdictional controversy arising from separation is especially acute when a divorce is granted outdoors of Canada. Merely put, the granting of a overseas divorce will extinguish the flexibility of a separated partner in Ontario to acquire spousal support below the legal guidelines of Canada and Ontario.
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This challenge was just lately earlier than the Court docket of Enchantment for Ontario in two unrelated instances, 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 baby moved to Ontario in March 2018 and have resided right here ever since. Simply days after transferring out of the household house in November 2019, the husband utilized for a divorce in Russia.
Although the spouse objected that the divorce ought to be decided in Ontario, arguing that she wouldn’t be eligible to obtain spousal assist from her husband below the legal guidelines of Russia, the Russian court docket granted the divorce in January 2020.
In July of that 12 months, the spouse commenced court docket proceedings in Ontario in search of spousal assist. All through the Ontario court docket continuing, it was understood that if the Russian divorce order was acknowledged in Canada, the spouse could be unable to pursue spousal assist in Ontario.
The spouse argued the husband sought and obtained the Russian divorce for the particular function of avoiding his obligation to pay spousal assist. In different phrases, the husband engaged in forum-shopping, the apply of selecting a court docket location that can end in a extra beneficial consequence.
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At trial, Justice Jana Steele of the Ontario Superior Court docket 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, provides (the husband) a back-door with which to flee his authorized tasks, and runs counter to the 4 spousal assist targets 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 Court docket of Enchantment for Ontario additionally agreed with the spouse and dismissed the husband’s enchantment. In line with the decide, whereas “forum-shopping is not going to all the time violate our rules of morality, ‘unfair forum-shopping ways’ most definitely will.”
In reaching his conclusion, Justice George pointed to the robust 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.
Finally, 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 Court docket of Enchantment reached the alternative consequence.
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 12 months. 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 court docket proceedings in Ontario whereby she sought a divorce and different reduction, together with that the husband pay spousal assist.
The central challenge within the Ontario court docket 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 Court docket of Enchantment for Ontario, Justice Julie Thorburn famous that the spousal assist provisions in Ontario’s Household Legislation Act don’t “embrace the phrase ‘former partner’ when describing who could apply for assist.” The decide continues: “Ontario instances have subsequently interpreted the Household Legislation Act as not allowing a former partner, corresponding to (the spouse), to hunt spousal assist.”
Justice Thorburn famous that “until and till the wording within the Household Legislation Act is modified to outline ‘partner’ to explicitly embrace a former partner, or this line of instances is revisited, a celebration corresponding to (the spouse), to a overseas divorce, can not search spousal assist below the Household Legislation Act.”
The decide concluded her evaluation by acknowledging that the laws, in its present kind, “might end in important hardship” for many who could also be entitled to spousal assist in Ontario however for a divorce having been granted outdoors 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 Legislation Act to make sure that spouses who divorce in overseas jurisdictions can carry purposes for assist in Ontario is a matter that, in my opinion, might be addressed by the Ontario legislature.”
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For Ontario {couples} with connections to outdoors international locations, the instances are a reminder to rigorously perceive their rights, entitlements and obligations, each earlier than deciding to relocate and when separating or in search of a divorce.
Adam N. Black is a companion within the household legislation group at Torkin Manes LLP in Toronto.
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