Do you need a Canadian divorce if you were divorced outside of Canada? Queries about Foreign divorce.
Surprisingly, this is a question we get asked quite often.
The short answer is no you do not need to obtain a Canadian divorce.
The statutory basis for the recognition of a foreign divorce in Canada is set out in Section 22 of the Divorce Act.
Your foreign divorce order is recognized in Canada if: either spouses were ordinarily resident in the foreign country for at least one year immediately preceding the commencement of proceedings for the divorce in that country.
Accordingly, you do not need to get a Canadian divorce order if the foreign divorce order is properly obtained pursuant to the laws of a jurisdiction outside of Canada.
Do I need to get my divorce registered in Canada?
Again, the answer is no. You do not need to register your foreign divorce, in fact, no such thing exists.
What you may do is update your personal, banking, and tax information to update your civil status. For example, if you have obtained a foreign divorce order, subject to the advice of your accountant, you may file your taxes a “divorced” with the Canada Revenue Agency on your personal income tax returns.
I obtained my divorce in a foreign country, can I still seek spousal support or property division in Canada?
The good news is yes you can!
If you have obtained a foreign divorce order outside of Canada, you may still seek such relief from a Canadian court for both spousal support and property division.
You need to note however the limitation periods that may exist to bring forward such an action.
The Divorce Act, only deals with spousal support and it has no limitation period to bring forth an action for spousal support. The longer you wait from the date of your foreign divorce order, however, the less likely you will be successful.
Under the BC Family Law Act. you may bring forth an action for both spousal support and property division.
The limitation period to commence an action for spousal support or property division is within two years of the divorce or foreign divorce.
R.N.S. v. K.S., 2013 BCCA 406, the Court of Appeal of B.C. affirmed that the recognition of the foreign divorce will not bar a claim for spousal support. Unlike other provinces, the B.C. family law regime expressly includes former spouses in the definition of “spouse” and does not restrict the definition so as to include only those divorced in Canada. This means that even if you are considered a former spouse as a result of your divorce order, you are still entitled to seek spousal support.
Can a Canadian court refuse to recognize the validity of a foreign divorce?
Here is where it gets complicated.
The parties have already obtained a foreign divorce. You then commence an action in BC for spousal support or property division.
Your former spouse may argue that a foreign court has already granted a divorce decree and as such, the issue of a Canadian divorce and other corollary reliefs that are part of the divorce are moot, specifically because they were adjudicated upon by the foreign court.
Sometimes it may be necessary to argue the opposite: foreign divorce should not be recognized in Canada.
This is actually a fairly difficult onus to meet because there are very limited circumstances under which the Canadian courts may refuse to recognize a foreign divorce. Instances where a Canadian court has refused to recognize a foreign divorce are:
- where a party did not receive notice of the divorce proceedings in the foreign country;
- where the family law regime on children, support and property division is starkly different to Canada and hence contrary to public policy;
- where the foreign court did not proper jurisdiction to adjudicate the issues, often because 1 or both of the parties were not resident in that jurisdiction or
- where fraud was present.
In Marzara v. Marzara, 2011 BCSC 408, despite the finding that the parties had a real and substantial connection to the foreign jurisdiction, the Court refused to recognize the foreign divorce decree on the basis that the support orders were contrary to public policy. The court found that the husband had commenced proceedings in a foreign jurisdiction to circumvent a Canadian court’s adjudication on the issues of spousal support and property division.
If you have obtained a foreign divorce and are seeking to know your rights under Canadian law, contact our office to speak to one of our experienced lawyers at:
Email: firstname.lastname@example.org or Call us at: 604 568 5181
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