Feb 18, 2017

Why Can’t a Canadian Court Grant or Vary Support Under the Divorce Act in the Face of a Valid Foreign Divorce?

Cheng v. Liu, 2017 ONCA 104 (CanLII)

Why Can’t a Canadian Court Grant or Vary Support Under the Divorce Act in the Face of a Valid Foreign Divorce?

February 17, 2017

Robert K. Omura

Can a Canadian Court Hear and Determine a Corollary Relief or Variation Proceeding under the Divorce Act where there is a Valid Foreign Divorce?

The recent decision of the Ontario Court of Appeal in Cheng v. Liu, 2017 ONCA 104 simply restates the long-held view that a Canadian court does not have the jurisdiction under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) to hear and determine a corollary relief proceeding or a variation proceeding where there is a valid foreign divorce. The jurisdiction to hear and determine domestic issues incidental, or corollary, to family law disputes such as custody, access, support, and property, is strictly bound by the statutory authority conferred on the court by Parliament or the various provincial or territorial Legislatures. See also Virani v. Virani, 2006 BCCA 63; R.N.S. v. K.S., 2013 BCCA 406; Harman v. Harman, 2009 ABCA 410; Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA); Okmyansky v. Okmyansky, 2007 ONCA 427; and Leonard v. Booker, 2007 NBCA 71.

The only reference to divorces made outside of Canada in the Divorce Act is s 22. Section 22 only “determines the capacity of a person divorced abroad to marry in Canada”: Southin J.A. in Virani v. Virani, 2006 BCCA 63 at para. 53. The Divorce Act is otherwise silent on foreign divorce judgments.

However, the silence is not an invitation for Courts to read in the authority to grant or vary support. The Courts of Appeal in B.C., Alberta, Ontario and New Brunswick have been clear on this point. The silence in the Divorce Act is because Parliament decided to limit the Divorce Act to divorces in Canada and matters incidental, or corollary, to a Canadian divorce. Foreign divorces, to the extent they are dealt with in Canada, were left to the provincial Legislatures.

This makes perfect sense. For Parliament to have conferred jurisdiction to grant Canadian courts the authority to hear and determine corollary relief or variation proceedings founded on a foreign divorce judgment might likely tread on the exclusive authority of the provincial Legislatures over property and civil rights in the Province: see Cheng v. Liu, 2017 ONCA 104 at para. 32; Okmyansky v. Okmyansky, 2007 ONCA 427 at para 26; and Virani v. Virani, 2006 BCCA 63 at para. 60. Such proceedings would not be incidental, or corollary, to Parliament’s authority over divorces in Canada. Instead, such proceedings would be incidental, or corollary, to a foreign divorce and related to the property and civil rights of residents of a province or territory. It would arguably be an unconstitutional intrusion of provincial jurisdiction. Only the provincial Legislatures could pass legislation to address domestic issues not incident, or corollary, to a Canadian divorce. See Simmons J.A. in Okmyansky v. Okmyansky, 2007 ONCA 427 at p. 15.

Thus, the only live issue in Cheng v. Liu was whether provincial legislation, in this case the Ontario Family Law Act, R.S.O. 1990, c. F.3, conferred on the provincial superior court the authority to deal with the incidents of a foreign divorce, in this case child support, spousal support, and the division of the matrimonial property, where the foreign court refused to address those incidents at the time it granted the divorce.

Is there Authority for a Canadian Court to Grant Support and the Division of Matrimonial Property under Provincial Legislation?

There is no legal obligation at common law to provide support: see Virani v. Virani, 2006 BCCA 63 at para. 47. Support obligations are statutory duties. Thus, a Canadian Court may grant relief incidental, or corollary, to a foreign divorce where there is valid legislation granting such authority by an enactment of Parliament or the Legislatures. The provinces determine whether they will recognize, enforce, or vary a foreign divorce judgment and those matters incident, or corollary, to that foreign divorce.

In general, a foreign order is received in Canada when it is registered with the clerk of a provincial superior court. The foreign order is “clothed” in the incidents of a provincial order, usually by being registered by the court under statutory authority. Thus, when the order is registered, the receiving court is not completing an operative part of a foreign order; on reception, the receiving court is making an original order that adopts all or some of the terms of the foreign order: see Rand J. in Ontario (A.G.) v. Scott, [1956] S.C.R. 137 at pp. 143-44; and Zmarlik v. Zmarlik, 2000 MBCA 74 at para. 9. In this case, when the Chinese divorce judgment was registered or accepted in Ontario, its legitimacy is the act of the Ontario court. The foreign divorce judgment entirely derived its legal force and effect from the receiving court and its statutory authority: see Locke J. in Scott at pp. 151-52; and Meyer v. Giede, 1998 CanLII 13724 (SKQB) at para. 16.

All provinces have enacted legislation providing for the support of dependents, and all provinces have enacted legislation providing for the division of matrimonial or family property. In Ontario, the Family Law Act, R.S.O. 1990, c. F.3 provides for the support of children and for the division of family property, but it does not provide for spousal support to former spouses: see Cheng v. Liu, 2017 ONCA 104 at paras. 33, 34, 45, 51, and 52; Okmyansky v. Okmyansky, 2007 ONCA 427 at paras. 46, 47. 50 and 51; and Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA) at para. 26.

What was not before the court was the impact of the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”), where there is a valid foreign divorce. A former spouse who does not reside in Ontario may initiate a claim for support or alimony under s. 8, if the claimant resides in a reciprocating jurisdiction. The list of reciprocating jurisdictions is set out in O. Reg. 53/03, which includes Hong Kong but not China. If the applicant was from Washington State, which is a reciprocating jurisdiction, she could have brought her application for spousal support under the ISOA. The applicant fell through the cracks here. Since the ISOA is based on the principle of reciprocity of states, this exclusion is fair and reasonable.

Sadly, the applicant wife fell through a second, less justifiable crack. The Ontario Family Law Act excludes former spouses from the definition of spouses who are eligible to apply for spousal support. If a spouse fails to bring an application for support before or at the time the foreign divorce judgment was granted, as was the case in Cheng v. Liu and Okmyansky v. Okmyansky, the Ontario Family Law Act provided the former spouse with no relief. Similar definitions of spouse exist under analogous legislation in Saskatchewan, Manitoba and Nova Scotia. This contrasts with B.C.’s Family Law Act, S.B.C. 2011, c. 25 and Alberta’s Family Law Act, S.A. 2003, c. F-4.5, which both define spouse as including a former spouse. It does not seem fair and reasonable to exclude former spouses from the operation of the Family Law Act for spousal support. This case is an example where a former spouse, for no fault of her own, will be denied a remedy. For policy reasons, the definition should be read up. Reading up spouse should have little or no negative impact on the fair and efficient administration of justice or on the fair and reasonable allocation of wealth between former spouses, but could alleviate hardship or the consequences arising from the marriage or the marriage breakdown. In the alternative, the Ontario Legislature should move to amend the definition of spouse accordingly.

Ari Wormeli commented
As an aside, unlike the Divorce Act with its lack of time limits, a "former spouse" under the FLA in BC needs to make their claim within 2 years. On the facts of this case, it appears at least very likely that the individual would have been statute-barred, given the timing, pursuant to s. 198(2).
Rob Omura commented
By request, I have commented on Zhang v. Lin in relation to the Cheng v. Liu case here: http://canliiconnects.org/en/commentaries/44971