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Family law matters, especially those involving divorce, can become complex when they cross international borders. The concept of foreign jurisdiction divorce raises questions about the validity of such divorces in Ontario, Canada, and whether individuals can pursue claims or face legal consequences within the province. This article delves into the intricate landscape of foreign jurisdiction divorces, shedding light on the implications and considerations for individuals seeking resolution in Ontario.

WHAT IS A MULTI-JURISDICTIONAL DIVORCE?

Multi-jurisdictional divorce occurs when aspects of a divorce case are subject to the laws of more than one jurisdiction. This can involve issues like property division, spousal support, and child custody being adjudicated in different legal systems. Such cases demand a comprehensive understanding of the laws in each jurisdiction involved.

RECOGNITION OF FOREGN DIVORCE, SUPPORT AND CUSTODY ORDERS IN ONTARIO

The recognition of a foreign jurisdiction divorce in Ontario is governed by both federal and provincial laws. The federal Divorce Act sets the foundation for acknowledging divorces granted in other countries. According to Section 22 of the Divorce Act, a divorce granted in a foreign jurisdiction is valid in Canada if it was ordered by the appropriate authority. This means that individuals who obtain a divorce outside Canada can typically expect its recognition in Ontario.

Family Law Act Section 15 addresses property rights in the context of a foreign divorce by stipulating that the division of property is governed by the internal laws of the place where both spouses last had a common habitual residence. If there is no such residence, the law of Ontario applies. This provision directs attention to the laws of the jurisdiction of the last common habitual residence, emphasizing the importance of seeking legal guidance, particularly in complex international divorce cases.

The Children’s Law Reform Act (CLRA) Section 22 in Ontario is significant in the context of child custody matters related to a foreign divorce. This section outlines the conditions under which an Ontario court may order custody and access, even if the divorce was granted in a foreign jurisdiction. According to Section 22(1) of the CLRA, an Ontario court can order custody and access if the child is habitually resident in Ontario or, if not habitually resident, the court is satisfied that the child is physically in Ontario, the case is in the child’s best interest, no other custody or access matters are pending in a foreign jurisdiction, the child has a “real and substantial” connection to Ontario, and it is determined that Ontario is the correct forum to hear the matter.

CAN A FOREING COURT’S CHILD SUPPORT, CUSTODY AND ACCESS ORDER BE CHANGED BY AN ONTARIO COURT?

The Court in the case of Kaur v Guraya  gave the following guidelines to be followed:

  • In cases where a foreign order addresses custody, access, and child support, and the applicant seeks relief solely for a new child support order or to modify the foreign order exclusively with regard to child support, the applicant should resort to the Interjurisdictional Support Orders Act (ISOA) for redress.
  • In instances where a foreign order encompasses custody, access, and child support, and the applicant seeks to supersede the custody order while concurrently applying for a new child support order in Ontario, the application may proceed within the jurisdiction.
  • Should the applicant, during Ontario proceedings, fail to supersede the foreign order concerning custody/access, any associated child support application should be dismissed without prejudice, preserving the applicant’s right to subsequently seek variation under the ISOA.
  • Conversely, in the event of the applicant successfully demonstrating a material change in circumstances during Ontario proceedings, leading to the Ontario court superseding provisions of the foreign order regarding custody/access, the Ontario court may revisit the matter of child support, contingent upon the applicant undertaking to refrain from enforcing the foreign order.

In summary, the guidelines set forth in the case of Kaur highlight the importance of a detailed approach to international divorce matters in Ontario, emphasizing the strategic use of the Interjurisdictional Support Orders Act (ISOA) and recognizing the interplay between custody, access, and child support claims, all within the framework of jurisdictional considerations and material changes in circumstances.

CONCLUSION

In conclusion, the intricate landscape of international divorces in Ontario necessitates a comprehensive understanding of legal intricacies, particularly when it comes to recognizing foreign divorce orders and addressing subsequent support and custody claims. The legal framework, as explored in this article, emphasizes the pivotal role of legislation such as the Divorce Act, the Interjurisdictional Support Orders Act (ISOA), and the Children’s Law Reform Act (CLRA) Section 22. As parties navigate the integration of foreign orders within the Ontario legal system, the importance of seeking professional legal counsel cannot be overstated. By adhering to the nuanced procedures outlined in these statutes, individuals can ensure a legally sound resolution that not only respects the intricacies of foreign orders but also prioritizes the welfare and best interests of the parties involved, with a specific focus on the well-being of the children.

At Kozyrev Law, we stand as your dedicated legal partners in navigating the intricate terrain of international divorces. Our seasoned team brings a wealth of expertise in family law, ensuring that your case is handled with precision and care. We are committed to providing tailored legal solutions, leveraging our in-depth knowledge of the Divorce Act, ISOA, and CLRA Section 22 to guide you through the legal intricacies seamlessly. As your trusted legal ally, Kozyrev Law is here to prioritize your needs, protect your rights, and achieve a resolution that reflects your best interests.

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