CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
• the enforceability of each court’s orders in the other jurisdiction; • whether proceeding in the foreign jurisdiction would deprive one spouse of an important legal right or advantage; and • the overall interests of justice. 2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings Jurisdiction for financial proceedings in Canada is determined by a combination of federal and provin ‑ cial legislation. Property Division Jurisdiction over property division is primarily gov ‑ erned by provincial legislation, which varies between provinces and territories. Key jurisdictional factors include the parties’ residency and the location of the property. A Canadian court does not have in rem jurisdiction over foreign property, but it does have in personam jurisdiction. This allows courts to use various reme ‑ dies to identify, trace, and account for foreign assets to achieve an equitable division of property. Child Support A parent may initiate a child support claim in the prov ‑ ince where the child habitually resides, even if this was not the parents’ shared habitual residence. A child’s habitual residence establishes a real and substantial connection with that province for child support pur ‑ poses. Spousal Support Both married and unmarried spouses may bring a spousal support claim in the jurisdiction where they last shared a common habitual residence. Contesting Jurisdiction A party may contest jurisdiction in financial proceed ‑ ings. Grounds for contesting jurisdiction include: • the existence of concurrent or prior proceedings in another jurisdiction;
• a lack of habitual residence in the proposed forum; and • situations where the dispute involves property or assets located primarily in another country, sug ‑ gesting another court is more appropriate Property Division – Stay of Proceedings Canadian courts may stay property division pro ‑ ceedings when a foreign court is better positioned to address the matter. Relevant considerations include: • location of the assets; • the law governing property division; • convenience for parties and witnesses; • efficiency of the respective court systems; and • enforceability of orders. Where most assets are situated abroad and that country’s law governs division, a foreign court may be deemed the more appropriate forum. Child Support – Stay of Proceedings Courts may stay child support proceedings if: • the child habitually resides in another jurisdiction; or • a foreign court is better suited to address the issue, especially when child support is linked to parenting matters being litigated abroad Key factors include: • the child’s habitual residence and best interests; • location of financial information; and • enforceability of support orders, especially if the foreign jurisdiction is not a reciprocating jurisdic ‑ tion under the Interjurisdictional Support Orders Act (ISOA). If the child primarily resides in Canada and most rel ‑ evant evidence is located there, Canadian courts are likely to retain jurisdiction. Spousal Support – Stay of Proceedings A party may request a stay so that spousal support can be determined in a foreign jurisdiction. Courts will consider:
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