By: Jeff Li and Ashley Iyathurai
Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. You should contact Jeff J. Li Professional Corporation or a family lawyer if you are concerned about your family law issues.
After a foreign court granted a divorce, can either of the former spouses sue in Ontario for property, child support or spousal support? In the latest case, Cheng v. Liu (2017), the Court of Appeal confirmed that while the Ontario courts may have jurisdiction over property and child support claims, they have no jurisdiction over spousal support relief.
In this case, the Appellant (husband, Liu) was a Canadian citizen. All his income and property were located in Canada as well. The Respondent (wife, Cheng), however, lived in China. The parties were married in China and had one child who lived with the wife in China. Upon separation, the wife initiated a divorce application in Ontario, seeking a divorce, custody of the child, child support, spousal support and equalization. Later, the husband brought a divorce application in China, seeking a divorce, custody, and equalization.
As the child was in China, the Ontario court stayed the proceeding here, considering China to be the convenient forum to deal with all the issues. In China, the parties were granted a divorce. The wife was also granted custody, and was given sole ownership of her real property in China. The husband had not made full financial disclosure and there was little information available to the court about his income or assets in Canada. Therefore, the court did not make a support order.
As a result, the Chinese court did not make any orders with respect to support and equalization. Instead, the court noted that if the parties were unable to resolve these matters, they could seek relief by bringing an application in Canada.
The wife then sought to claim child support, spousal support and equalization of net family property in Ontario. While the wife’s initial application only sought supports under the Divorce Act, she then filed an amended application, claiming spousal support and child support under both the Divorce Act and the Family Law Act.
Spousal Support
In the past, once a divorce was granted outside Canada, the courts in Canada would not deal with spousal support issues. This is because the support claims would fall under the corollary relief under the Divorce Act, a federal law applicable throughout Canada. If the divorce is not dealt with in Canada, the relief corollary to divorce cannot be adjudicated here either. In Ontario, the Family Law Act provides similar support relief. However, the divorced parties are no longer considered as spouses within the meaning of the Family Law Act, and as such the spousal support relief is not available to them.
This principle was established in Rothgiesser v. Rothgiesser (Court of Appeal, 2000), and re-affirmed in Okmyansky v. Okmyansky (Court of Appeal, 2007). In Okymyansky, the Husband applied for a divorce in Russia, where the parties were married. After the divorce was granted, the Wife initiated an application in Ontario, seeking spousal support and a division of assets. There, the Court of Appeal determined that an Ontario court does not have jurisdiction to determine corollary relief under the Divorce Act, once a foreign divorce order has already been granted.
In Cheng v. Liu, Justice Price of the Superior Court ruled that Okymyansky is distinguishable, on the grounds that (a) the wife commenced her proceeding in Ontario first, before the husband commenced his proceeding in China; (b) the court in Ontario stayed the wife’s application provisionally, on conditions that the husband later breached; (c) the husband made false declaration as to his income in the proceeding in China; (d) the court in China explicitly declined to exercise its jurisdiction over economic issues, including property, child support and spousal support claims; and (e) without the court in China assuming jurisdiction over the issues of supports and property, the respondent will be left without any forum in which to make her claims. The trial judge ruled that the Ontario court has jurisdiction over spousal support, child support and property in this case.
On appeal, the Court of Appeal affirmed that the Superior Court of Ontario has no jurisdiction over the corollary issues in the Divorce Act. However, since the property claim falls under the Family Law Act, the Superior Court of Ontario may exercise its jurisdiction over the property claim. The same applied to child support, which can be dealt with either under the Divorce Act or Family Law Act. As to spousal support, the Court of Appeal determined that an Ontario court does not have jurisdiction, in line with the Court’s previous decisions.
It is somewhat unfair to deny a former spouse the right to seek spousal support in Ontario if the spouse was divorced outside Canada. In many countries such as China, divorce can be obtained more easily and more quickly than in Canada. A spouse may not know that s/he forfeits the right to seek spousal support in Canada once s/he agrees to a foreign divorce. Worse, a spouse who does not want to pay spousal support may evade Canadian courts’ jurisdiction by simply obtaining a divorce outside Canada. To avoid this loophole, we may simply change the definition of “spouse” to include a former spouse in the Corollary Relief part of the Divorce Act, or Part III (Support Obligations) of the Family Law Act.
Where there is a pending foreign application or a foreign divorce order, it is important that you carefully review these and other jurisdictional issues to ensure that the relief being sought will be properly heard by the appropriate court.
Related Articles