CANADA Law and Practice Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
is some ambiguity about whether provinces will assume jurisdiction for spousal support claims if the parties did not commonly reside in the jurisdiction prior to the commencement of the application. In cases where both spouses reside in a foreign jurisdiction for at least one year prior to the time of the divorce application, and that jurisdiction does not recognise the validity of their marriage, the court in the province where the spouses were married may grant a divorce in accordance with Section 4-13 of the Civil Marriage Act. However, given that the Divorce Act does not apply in cir - cumstances where a Canadian court grants a divorce for foreign spouses, the court does not have jurisdiction to adjudicate any support or custody claims. Any person may make a claim for a divorce and/ or corollary relief regardless of their nationality and/or religion. Where the parties reside (ie, their domicile) impacts where they are able to com - mence a court application. Contesting Jurisdiction and Staying Proceedings A party can contest jurisdiction based on the following factors: • the commencement of a concurrent and/or earlier proceeding in another jurisdiction; • the absence of habitual residence in the case of divorce and division of property; • whether the parties have previously con - tracted into another jurisdiction and/or private dispute resolution (arbitration); and/or • where there is a child under the Divorce Act, there is an opposed parenting/decision-mak - ing application and the child is “most sub - stantially connected” to another jurisdiction.
The court may decline jurisdiction and/or stay the Canadian proceeding if a foreign jurisdiction has already taken jurisdiction. In declining or staying the Canadian proceeding, the court will consider whether the foreign court has jurisdic - tion over the proceeding. A province will have jurisdiction over a divorce if either spouse has been habitually resident in the province for at least one year immediately prior to the com - mencement of the divorce proceeding. If a party wants to pursue divorce in a foreign jurisdiction, they must demonstrate that the for - eign jurisdiction is the more convenient forum. Among the factors that a court will look to in determining if a foreign jurisdiction is more con - venient are the geographical location of the parties and/or whether one spouse would be deprived of a juridical advantage in the foreign jurisdiction. As regards the grounds for jurisdiction and the possibility of contesting jurisdiction and/or stay - ing proceedings in financial proceedings, please refer to 1.2 Choice of Jurisdiction . Pursuant to the Federal Divorce Act, Canadi - an courts do not have jurisdiction to hear and determine a corollary relief proceeding follow - ing a valid foreign divorce. Provincial courts may have jurisdiction to determine child support and property claims that have not been dealt with in the foreign proceeding. 2.2 Service and Process Financial claims are commenced under provin - cial jurisdiction, most commonly by way of appli - cation to the relevant provincial Superior Court 2. Financial Proceedings 2.1 Choice of Jurisdiction
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