Ontario civil | Conflict of Laws
Family law
Support
Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order
After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).
