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Foreign divorce can undermine bid for spousal support

Special to Financial Post

The question of which country’s laws govern the split can have significant consequences.

Families today are increasingly mobile, often driven by a work-from-anywhere mindset. But when a couple that has ties to more than one country decides to separate, the question of which country’s laws govern the split can have significant consequences.

For a spouse in Ontario, the jurisdictional controversy arising from separation is particularly acute when a divorce is granted outside of Canada. Simply put, the granting of a foreign divorce will extinguish the ability of a separated spouse in Ontario to obtain spousal support under the laws of Canada and Ontario.

This issue was recently before the Court of Appeal for Ontario in two unrelated cases, decisions for which were released in February.

In the first case, the couple was married in 2012 in Russia, where they resided at the time. The couple and their child moved to Ontario in March 2018 and have resided here ever since. Just days after moving out of the family home in November 2019, the husband applied for a divorce in Russia.

Though the wife objected that the divorce should be determined in Ontario, arguing that she would not be eligible to receive spousal support from her husband under the laws of Russia, the Russian court granted the divorce in January 2020.

In July of that year, the wife commenced court proceedings in Ontario seeking spousal support. Throughout the Ontario court proceeding, it was understood that if the Russian divorce order was recognized in Canada, the wife would be unable to pursue spousal support in Ontario.

The wife argued the husband sought and obtained the Russian divorce for the specific purpose of avoiding his obligation to pay spousal support. In other words, the husband engaged in forum-shopping, the practice of choosing a court location that will result in a more favourable outcome.

At trial, Justice Jana Steele of the Ontario Superior Court of Justice agreed with the wife and found the Russian divorce should not be recognized in Ontario. The judge noted that “the Russian divorce, which was obtained less than two months after separation, gives (the husband) a back-door with which to escape his legal responsibilities, and runs counter to the four spousal support objectives set out in s. 15.2(6) of the Divorce Act.”

The husband appealed. In a ruling released Feb. 28, Justice Jonathon George of the Court of Appeal for Ontario also agreed with the wife and dismissed the husband’s appeal. According to the judge, while “forum-shopping will not always violate our principles of morality, ‘unfair forum-shopping tactics’ most certainly will.”

In reaching his conclusion, Justice George pointed to the strong emphasis placed on the values of partnership and equality in Canadian family law. It is those values which underpin a spouse’s entitlement to spousal support in Ontario.

Ultimately, the Russian divorce order was not recognized in Ontario and the wife was able to pursue spousal support.

The second case before the Court of Appeal reached the opposite outcome.

In that case, the couple was married in 1998 in Bangladesh, where they resided with their three children for most of the marriage. In 2015, the husband and children obtained landed immigrant status and moved to Canada the following year. The wife remained in Bangladesh.

Although the husband had sponsored the wife for Canadian permanent resident status, he later gave her written notice of his intention to divorce her pursuant to the laws of Bangladesh. The wife moved to Canada in February 2017, one month before the Bangladeshi divorce became effective.

Three years later, the wife commenced court proceedings in Ontario wherein she sought a divorce and other relief, including that the husband pay spousal support.

The central issue in the Ontario court proceedings, again, was the recognition of the foreign divorce. While the wife said the Bangladeshi divorce should not be recognized in Ontario, the fact that she had remarried in reliance on the Bangladeshi divorce weighed in favour of recognizing the foreign divorce in Ontario. In the result, the Bangladeshi divorce was recognized in Ontario.

Writing for the Court of Appeal for Ontario, Justice Julie Thorburn noted that the spousal support provisions in Ontario’s Family Law Act do not “include the phrase ‘former spouse’ when describing who may apply for support.” The judge continues: “Ontario cases have therefore interpreted the Family Law Act as not permitting a former spouse, such as (the wife), to seek spousal support.”

Justice Thorburn noted that “unless and until the wording in the Family Law Act is changed to define ‘spouse’ to explicitly include a former spouse, or this line of cases is revisited, a party such as (the wife), to a foreign divorce, cannot seek spousal support under the Family Law Act.”

The judge concluded her analysis by acknowledging that the legislation, in its current form, “could result in significant hardship” for those who may be entitled to spousal support in Ontario but for a divorce having been granted outside of Canada. Justice Thorburn pointed out that legislation in Alberta, British Columbia, Manitoba, Nova Scotia and Prince Edward Island ensures a claim for spousal support will survive a foreign divorce.

For Justice Thorburn, the remedy is simple: “Addition of the words ‘or former spouse’ to s. 30 of the Family Law Act to ensure that spouses who divorce in foreign jurisdictions can bring applications for support in Ontario is an issue that, in my view, could be addressed by the Ontario legislature.”

For Ontario couples with connections to outside countries, the cases are a reminder to carefully understand their rights, entitlements and obligations, both before deciding to relocate and when separating or seeking a divorce.

This article was originally published in the Financial Post.