When a Divorce Happens Abroad: Ontario Court Addresses Foreign Divorce, Support, and Property Claims

Written on behalf of Shariff & Associates

Family law disputes can become more complex when spouses have ties to multiple countries. Questions may arise about where a divorce should proceed, whether a foreign divorce will be recognized in Ontario, and whether support or property claims remain available after another court has made orders.

A recent Ontario family law decision, Zhao v. Wang, considered these issues after a divorce proceeding in China was followed by an Ontario application. The case addressed foreign divorce recognition, spousal support, child support, parenting, and property division, illustrating how jurisdiction can shape the outcome of family law proceedings.

Marriage in Ontario, Proceedings in China

The spouses married in Toronto in 2014. One lived primarily in Ontario, while the other was a citizen and resident of China. They had one biological child together, born and raised in Ontario. The applicant spouse also had a child from a previous marriage and alleged that the respondent spouse had acted as a parent to that child.

After the relationship ended, the applicant spouse started divorce proceedings in China. She sought a divorce, decision-making responsibility (formerly known as custody) of their biological child, child support, property division, and costs.

The Chinese court granted the divorce, awarded decision-making responsibility of the biological child to the applicant spouse, and ordered monthly child support. It did not decide the property issues because further evidence was required, but allowed those claims to be pursued separately.

The Later Ontario Application

After the Chinese divorce, the applicant spouse started an Ontario application. She argued that the foreign divorce should not be recognized because she had not lived in China for one year before beginning the proceeding.

She sought a declaration that the Chinese divorce was invalid; a divorce under the federal Divorce Act; decision-making responsibility; child support; spousal support; and property-related relief.

The respondent spouse asked the Ontario Court to dismiss the application on jurisdictional grounds. He argued that the Chinese divorce was valid and that the applicant spouse could not re-litigate issues in Ontario after choosing to proceed in China.

Recognition of the Foreign Divorce

The Court first considered whether the Chinese divorce should be recognized in Ontario. Evidence about Chinese family law indicated that where both parties are Chinese nationals and one resides in China, the court where that spouse is domiciled may have jurisdiction. The respondent spouse was living in China when the proceeding began.

The Court also considered section 22 of the Divorce Act. A foreign divorce may be recognized in Canada where either former spouse was habitually resident in the country or a relevant subdivision for at least one year before the proceeding began.

Because the respondent spouse met that requirement, the Court found that the Chinese divorce was valid and should be recognized in Canada.

No Second Divorce in Ontario

Once the foreign divorce was recognized, the applicant spouse could not obtain another divorce in Ontario. Her requests to invalidate the Chinese divorce and obtain a new divorce under the Divorce Act were dismissed.

The Court also noted that she had selected the Chinese forum, retained counsel, and requested related relief there. She could not later challenge that process simply because an Ontario proceeding might have produced a different result.

Spousal Support After a Foreign Divorce

The Court next considered the Ontario spousal support claim. Because the parties were already divorced, the claim could not proceed under either the Divorce Act or Ontario’s Family Law Act.

Relying on prior Ontario appeal authority, the Court explained that once a foreign divorce is recognized, a former spouse may no longer be able to claim support under provincial legislation as they might have if the divorce had occurred in Ontario.

The spousal support claim was dismissed. The result demonstrates how the choice of forum may affect the remedies available after divorce.

Child Support and Competing Orders

The Chinese court had already ordered child support for the parties’ biological child. The respondent spouse had complied with that order.

The Ontario Court found that a new original child support claim for the same child could create competing orders and undermine the foreign court’s decision. It also noted that the Chinese appeal decision allowed a further claim in China if increased support later became necessary. The Ontario child support claim for the biological child was therefore dismissed.

Support for a Stepchild or Child of the Marriage

The applicant spouse also claimed support for her older child, alleging that the respondent spouse had stood in the place of a parent. He disputed that allegation.

No support had been claimed for that child in China. Evidence indicated that Chinese law would not require support unless the respondent spouse had consented or legally adopted the child. The applicant spouse argued that the Ontario claim should continue because the Chinese order did not address that child. The respondent spouse argued that she should not be allowed to divide child support claims between jurisdictions.

The Court agreed with the respondent spouse. By pursuing child support in China, the applicant spouse had accepted that forum and its law for those issues. The Court concluded that support claims involving the children should be determined in one jurisdiction to avoid inconsistent findings and unfairness. The claim for the older child was also dismissed.

Property Division Was Treated Differently

The property claims produced a different result because the Chinese divorce judgment had not finally divided the spouses’ assets. It expressly allowed property issues to be addressed in a separate proceeding. A property case was underway in China, with a trial date scheduled. The evidence suggested that the Chinese court might resolve all property issues or leave certain matters, including property outside China, to another jurisdiction.

Because the foreign property proceeding was incomplete, the Ontario Court found it was premature to dismiss the Ontario claims. Instead, it stayed the equalization and other property-related claims pending the outcome in China.

The Ontario property claims were therefore paused rather than finally dismissed. Their future will depend on what the Chinese court ultimately decides and whether any issues remain unresolved.

Shariff & Associates: Advising Families in Markham and Stouffville on International Divorce Matters

For families with international connections, understanding how foreign and Ontario proceedings may interact can be important before starting or responding to a case.

If your family law matter involves a foreign divorce, international property, parenting issues, child support, spousal support, or spouses living in different countries, the family and divorce lawyers of Shariff & Associates can help you understand how jurisdiction may affect your next steps. For assistance with family law proceedings in Markham, Stouffville, or anywhere else in the GTA, contact us online or call 905-591-4545 today.