If You are Divorced in China, Can a Canadian Court Make Orders Too?
The facts in Cheng v. Liu are a little unusual, but the core question was this:
If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?
The husband, an engineer, was a Canadian citizen who lived in Canada. The wife lived in China and had never been to Canada. They got married in China in 2006 and had a daughter who lived with the wife in China her entire life. They separated about a year after getting married, in around late 2007 or early 2008.
The wife then covered all the legal bases: She applied in China for a divorce, and custody of their child. She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody. Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.
Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child. The wife’s other Ontario-based claims were still pending.
The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China. This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.
Against this complicated background the Ontario Court of Appeal had a simple question to consider: In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?
The Court’s conclusion was mixed: The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.
On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters. So on the remaining divorce-related issues, the Ontario court had no authority.
However, the situation under the provincial Family Law Act was different: the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order. The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that. Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children. Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.
For the full text of the decision, see: