Divorce is never easy. Foreign divorces can be even more challenging. Many questions and complications arise when there is an international aspect to marriage, separation, and divorce.
In today’s article, our New Westminster divorce attorney will answer some of the most frequently asked questions about foreign divorce and the British Columbia divorce process. If you’re going through a separation and you’re not sure where to apply for divorce or whether a foreign divorce would be recognized in Canada, we encourage you to contact us for legal advice customized to your unique situation.
Will a foreign divorce from another country be recognized in Canada?
A major area of confusion is foreign divorce recognition. Canada generally recognizes a divorce made in another country, provided certain conditions are met (and subject to the exceptions where a Canadian court may refuse to recognize a foreign divorce, discussed below).
Section 22 of Canada’s Divorce Act sets out the conditions for recognizing a foreign divorce. A foreign divorce decree will be recognized in Canada if:
the divorce is valid under the laws of that country; and
one or both spouses lived in the country where the divorce was granted for a full year immediately before applying for the divorce.
So, generally speaking, if the divorce was granted in accordance with the laws of that country, and you (or your spouse) were habitually resident in that country for at least one year prior to starting the divorce proceedings, the foreign divorce order will be recognized in Canada.
Are there situations where a foreign divorce will not be recognized in Canada?
Recognition of a foreign divorce order can be refused, but only in limited circumstances:
Where a spouse did not receive notice of the foreign divorce proceedings;
Where the foreign divorce order is contrary to public policy (for example, because the family laws in that country with respect to divorce or issues such as child support or spousal support are very different to the rights and entitlements under Canadian law);
Where the foreign court did not properly have jurisdiction; or
Where fraud was present.
The burden is on the spouse alleging that the foreign divorce is invalid to adduce evidence demonstrating that the divorce was not properly obtained.
A note on unfair “forum shopping” is warranted here. BC courts can refuse to recognize a foreign divorce if it’s shown that divorce proceedings were commenced in a foreign jurisdiction as a tactic to avoid a Canadian court’s adjudication of issues such as spousal support and property division (e.g., a spouse obtaining a divorce order in another country to avoid support obligations imposed by Canadian law).
What if you or your spouse wasn’t resident in the foreign country for a year prior?
This relates to the question of whether the foreign court had proper jurisdiction. A person might start divorce proceedings in another country even though they haven’t been resident in that country for a least a year. If a divorce order is made in that country, it may still be recognized in Canada, despite not meeting the residency requirement in Canada’s Divorce Act.
A foreign divorce issued under those circumstances may still be recognized in Canada if it’s shown that there is a “real and substantial connection” between one of the spouses and the country that granted the divorce order. The concept of a real and substantial connection is flexible and fact dependent. Canadian courts will look at factors such as residence, employment, citizenship, and location of property/assets in determining whether a spouse has a real and substantial connection to the country that made the divorce order.
Does a foreign divorce order affect your family law rights in Canada?
It can. If a divorce order has been granted in a foreign country and you are concerned about how it impacts your rights here, you should consult with a local divorce lawyer as soon as possible.
In some Canadian provinces, courts no longer have jurisdiction to make orders for spousal support, property division, or other “corollary relief” after a foreign court has granted a divorce order. For example, Ontario family law doesn’t include “former spouse” in the definition of a spouse for support purposes, so the court doesn’t have jurisdiction to make a support order after a divorce has been issued. A spouse wanting to get orders for corollary relief in Ontario would need to prove that the foreign divorce should not be recognized in Canada for one of the reasons discussed above.
The situation is a bit easier for BC residents. BC’s Family Law Act expressly states that a spouse includes a “former spouse.” That means jurisdiction to order spousal support in British Columbia is not ousted by a valid foreign divorce order. There may, however, be limitation period issues that could bar your claim, so you should act quickly in commencing your application in the BC courts.
Can you file for divorce in Canada if your marriage took place outside of Canada?
Yes. If you or your spouse has been a resident for one year in a Canadian province or territory, you can file for a divorce in that province or territory. There are two other conditions that must be met for you to apply for divorce in Canada:
Your marriage must be legally recognized in Canada; and
You must establish that there has been a breakdown of your marriage.
Provided you meet the eligibility requirements, you can use the British Columbia divorce process. See here for more on contested divorce and uncontested divorce in BC for spouses who were married abroad.
Get trusted advice on the divorce process
British Columbia family lawyer Valerie M. Little has helped thousands of individuals through the divorce process. Ms. Little has many years of experience as a British Columbia family lawyer and works with a qualified and compassionate team to ensure you get the best possible service.
If you need advice on any aspect of marriage, separation or divorce (including contested divorce, uncontested divorce, high-net worth divorce, or foreign divorce recognition in Canada), help is just a phone call away. Call Valerie M. Little Law Corporation today at 604-526-3333 to protect your legal rights and get your divorce finalized in as pain-free and efficient manner as possible.
Ms. Little is a New Westminster divorce attorney who assists clients throughout Metro Vancouver, including Burnaby, Coquitlam, Port Coquitlam, Port Moody, Maple Ridge, Pitt Meadows, Langley, Surrey, Aldergrove, Abbotsford, Chilliwack, Vancouver, West Vancouver, West Vancouver, White Rock, Richmond, Delta, Ladner, Squamish, and Whistler.