Three kinds of foreign jurisdictions for divorce
When the reform of the Divorce Act is finished as planned, there will be three kinds of foreign jurisdictions, and the decisions made there will be treated differently, at least in terms of procedure. First, there will be countries signed the 1996 Convention, then so-called designated jurisdictions — the countries specifically recognized by applicable legislation, and finally — all the other countries. The rules for “designated jurisdiction” are made as close as possible to the rules for the Convention countries, though. This is why not so much will change in practical terms with respect to the countries which are “designated” now, but will become “Convention” countries once the Convention is in force in Canada.
Designated Jurisdictions
When it comes to a “designated jurisdiction”, someone who has obtained a decision in his own jurisdiction to vary a support order (or another decision which by its effect would vary a support order), may apply to an authority in the province where the other party habitually lives to recognize that decision. This happens, for example, when a Canadian Court grants a support order under the Divorce Act, then one of the ex-spouses moves to another country and there applies to modify the support order and obtains such a decision. A Canadian Court will then recognize and enforce this foreign order as if it was rendered in Canada.
Provincial Rules
A foreign decision is to be registered according to the provincial law. Such a law provides usually for grounds to objecting to such a registration, recognition and enforcement of a foreign decision. (In Quebec this is, first of all, the Book X of the Civil Code, explaining the rules on private international law).
According to the provincial rules (in Quebec the Code of Civil Procedure would apply) the Respondent has some time limit to respond (art. 490 of the Code of Civil Procedure speaks of 30 days, for example). Usual grounds for nonrecognition are procedural failures (another party did not have a proper notice or reasonable opportunity to be heard), the foreign authority was not competent to make such a decision, or the decision is contrary to the public order as defined in the province. (art. 3155(5) of the Civil Code of Quebec speaks of the public order, “as understood in international relations”).
In the absence of objections, the foreign order is registered in accordance with the law.
Other foreign divorce judgements
When it comes to other foreign judgements, the old s. 22 of the Divorce Act is now accompanied with s. 22.1. This article speaks of recognition of foreign orders varying parenting or contact orders (previously those of “custody” and “access”).
An interested person in Canada may apply in a provincial Court with sufficient connection with the matter. Such a Court may recognize a foreign order made by an international authority. Yet it may also refuse if the child is not habitually resident in another country, the child or the other parent did not have opportunity to be heard or if the authority making the decision was not competent to make it if the Canadian rules would apply (s. 6.3 of the Divorce Act, particularly, citing urgency of the situation, importance of avoiding multiplicity of proceedings and inconsistent decisions, discouraging child abduction, etc.) or if recognition of such a decision would be manifestly contrary to public policy and the best interests of the child.
The Cour may also refuse to recognize a foreign decision of a more recent decision is already in force.
Divorce in the Convention countries
We shall mention again that when the 1996 Convention is in force in Canada, its simplified rules will apply to the foreign decisions made in the signatory countries. Particularly, there will be no review on the merits, only formal requirements will be looked into (art. 27 of the Conventnion).
When recognized, a foreign decision has legal effect throughout Canada and enforceable as provided by law. In the same way, if the Canadian Court refuses to recognize a foreign decision, this refusal is also applicable in every province or territory.
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances, it is not clear if this date will be observed. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected].
Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously and with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
