Adam Black: The query of which nation’s legal guidelines govern the break up can have vital penalties
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Households right this moment are more and more cellular, typically 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 power of a separated partner in Ontario to acquire spousal help beneath the legal guidelines of Canada and Ontario.
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This difficulty was lately earlier than the Court docket of Attraction for Ontario in two unrelated circumstances, selections for which have 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 shifting 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 help from her husband beneath 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 searching for spousal help. 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 help in Ontario.
The spouse argued the husband sought and obtained the Russian divorce for the precise goal of avoiding his obligation to pay spousal help. In different phrases, the husband engaged in forum-shopping, the follow of selecting a court docket location that may lead to a extra beneficial final result.
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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 help 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 Court docket of Attraction for Ontario additionally agreed with the spouse and dismissed the husband’s enchantment. In response to the decide, whereas “forum-shopping is not going to at all times violate our rules of morality, ‘unfair forum-shopping techniques’ most actually will.”
In reaching his conclusion, Justice George pointed to the sturdy emphasis positioned on the values of partnership and equality in Canadian household legislation. It’s these values which underpin a partner’s entitlement to spousal help in Ontario.
In the end, the Russian divorce order was not acknowledged in Ontario and the spouse was capable of pursue spousal help.
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The second case earlier than the Court docket of Attraction reached the alternative final result.
In that case, the couple was married in 1998 in Bangladesh, the place they resided with their three kids for many 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 aid, together with that the husband pay spousal help.
The central difficulty 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 Attraction for Ontario, Justice Julie Thorburn famous that the spousal help provisions in Ontario’s Household Regulation Act don’t “embrace the phrase ‘former partner’ when describing who could apply for help.” The decide continues: “Ontario circumstances have due to this fact interpreted the Household Regulation Act as not allowing a former partner, corresponding to (the spouse), to hunt spousal help.”
Justice Thorburn famous that “except and till the wording within the Household Regulation Act is modified to outline ‘partner’ to explicitly embrace a former partner, or this line of circumstances is revisited, a celebration corresponding to (the spouse), to a overseas divorce, can not search spousal help beneath the Household Regulation Act.”
The decide concluded her evaluation by acknowledging that the laws, in its present kind, “might lead to vital hardship” for individuals who could also be entitled to spousal help 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 help 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 help 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 exterior nations, the circumstances are a reminder to fastidiously perceive their rights, entitlements and obligations, each earlier than deciding to relocate and when separating or searching for a divorce.
Adam N. Black is a accomplice within the household legislation group at Torkin Manes LLP in Toronto.
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