In cross-border family litigation, the question is not simply whether Ontario has jurisdiction. Different remedies are governed by different statutes and different connecting factors. Ontario may have jurisdiction to grant a divorce, while another jurisdiction’s law may govern property rights, and a separate analysis may determine whether Ontario can make parenting orders concerning a child.
Let us examine under what circumstances you might be able to bring a family law matter in Ontario.
Individuals are often uncertain whether Ontario courts have jurisdiction to deal with their family law dispute.
This issue arises where a party has significant ties to more than one jurisdiction. It is sometimes quite challenging to definitively determine just where someone lives. After all, what does “lives” mean?
Marriage location and citizenship are not enough!:From the inquiries received at this firm, it appears that many believe that just because they were married in Ontario or because they have Canadian citizenship – that these factors are enough to enable them to seek a divorce or other family relief in Ontario. Marriage in Ontario and Canadian citizenship are usually not sufficient, by themselves, to establish Ontario jurisdiction in a family law matter. But they may still be relevant in a broader factual matrix
Divorce Act:
Under s. 3(1) of the Divorce Act, a court in a province has jurisdiction to hear and determine a divorce proceeding only if either spouse has been habitually resident in that province for at least one year immediately before the proceeding is commenced. If neither spouse satisfies that statutory requirement, the Ontario court lacks jurisdiction to grant a divorce. The concept of habitual residence is fact-specific and has generated substantial jurisprudence.(Prior to March 2021, the words were “ordinary residence”.)
I have highlighted “habitually resident” in the above excerpt from the Divorce Act. You can be quite certain that the meaning of ‘habitual residence’ has generated substantial jurisprudence. That determination requires a close examination of the facts of the individual case.
Prior to 1 March 2021, the English version of the Act used the phrase “ordinarily resident’; the current statute uses ‘habitually resident’.
Foreign Divorce and Spousal Support Implications:
If a spouse has obtained a divorce in another country, the first issue is whether Ontario will recognize that foreign divorce. Recognition may have significant consequences for the availability of relief under the Divorce Act and the (Ontario) Family Law Act, particularly in relation to spousal support. Practitioners must be aware that they should have reference to section 22 of the Divorce Act which is entitled “Recognition of Foreign Divorce”. (In the case of parenting orders, the practitioner should also reviewed section 22.1 of the Divorce Act.)
What if your spouse has obtained a divorce order in another country and now you want to bring a claim under the Divorce Act for parenting, spousal support, or child support?
If you participated in that foreign process or if you had notice and decided not to defend that foreign divorce proceeding, then that foreign divorce might impair your ability to obtain spousal support in Ontario. You may not be able to access the Divorce Act to claim that relief. Ontario courts have held that in some cases that foreign divorce can block your claims, particularly your spousal support claim.
That is why people who feel they are the victims of a foreign‑divorce‑ambush will bring proceedings to challenge the validity of the foreign divorce. Sometimes they succeed. For example, in Vyazemskaya v. Safin, the Court of Appeal in 2024 emphasized that a foreign divorce should not be recognized if it was obtained through unfair “““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““““`forum‑shopping or other improper conduct.
One Ontario judge departed from existing appellate authority and held that persons who were formerly married and divorced may still apply for spousal support under the Family Law Act. The court stated that a divorce on its own, whether foreign or domestic, does not deprive the court of jurisdiction (Rasaei v. Bahman, 2025 ONSC 2074 at paragraph 5). Because Rasaei is a trial‑level decision and remains in tension with earlier appellate authority, practitioners should treat it cautiously. As of now, the decision does not appear to have been overtaken or overturned on appeal, but it also has not yet been endorsed by the Ontario Court of Appeal.
There is a simple legislative solution: Ontario could amend the Family Law Act to clarify when former spouses may claim spousal support. The bar has been waiting for that change for some time. But Rasaei tells us that the debate is not yet over and that the law may continue to evolve in the coming years.
Property Claims – When Ontario Law Applies: Consider a married couple who lived in New Jersey for years and then, shortly after the separation date, the wife/mother moves to Ontario with the children. Suppose one year has passed since her arrival. Therefore, since she has been resident in Ontario for one year, she can issue a Divorce Application. She can claim spousal support, child support and a parenting order. But what about property claims? Section 15 of the Family Law Acttells us that we apply the property provisions of the FLA only “where both spouses had their last common habitual residence” in Ontario. (But if there was no common habitual residence, then Ontario property law will apply.)
Therefore, in our scenario here, we would be applying the federal Divorce Act to determine parenting, child support and spousal support, but we would have to apply New Jersey law to their property issues. That can make the overall file quite complex, requiring careful coordination between Ontario counsel and lawyers in New Jersey.
In cross-border property disputes, the question is not always whether Ontario can hear the case; often the further question is whether Ontario must apply the substantive property law of another jurisdiction
Parenting Claims – Habitual Residence and the (Ontario) Children’s Law Reform Act:
For parenting cases, under s. 22 of the CLRA, the ordinary starting point is whether the child was habitually resident in Ontario when the application was commenced. If not, Ontario may still assume jurisdiction in limited circumstances prescribed by the statute. The Supreme Court of Canada’s 2025decision in Dunmore v. Mehralian, 2025 SCC 20,clarified that habitual residence means where the child is truly “at home,” a standard that may apply even if the parents plan to move elsewhere. (See paragraphs 46 to 51 of the SCC decision.)
Sections 40 to 45 of the CLRA provide special standards with respect to recognition of foreign parenting orders.Most importantly, the “Convention on the Civil Aspects of International Child Abduction” is part of Ontario law by virtue of the CLRA, section 46. In any child abduction case, it is important to determine if the other involved jurisdiction is a party to the Convention. But even if the other country is not a party, that does not mean that the ‘left behind’ parent is without Ontario remedies.
Interjurisdictional parenting cases can be verycomplicated.** It is important to secure legal advice early. Delay can hurt your case.
Forum Non Conveniens – Two Courts in Play: There are many situations where more than one jurisdiction could, under its own laws, exercise power over the same case. For example, in the New Jersey–Ontario scenario described above, the husband/father might argue that New Jersey is the proper forum, while the wife/mother says Ontario has jurisdiction. That is where the doctrine of forum non conveniens comes into play.
Where more than one jurisdiction has a plausible basis to hear the dispute, the court may be asked to determine whether Ontario is the appropriate forum. In that context, the court may consider factors such as convenience, fairness, access to evidence, the location of the parties and children, and the risk of inconsistent proceedings. The result may be that the Ontario court stays the proceeding in favour of another forum.
Interjurisdictional parenting and financial‑support cases can be highly complex. It is often impossible to say with certainty, at the outset, which court will ultimately prevail.
Choosing Your Jurisdiction: There can be various advantages and disadvantages between different jurisdictions. In particularly complex crossborder cases, you may need to litigate in two jurisdictions and then ensure that the lawyers in each place are communicating and strategizing together. This kind of coordination is essential to avoid inconsistent orders and unnecessary conflict.
If you have a cross-border situation, contact us to explore the options.
** Section 31 of S.C. 2019, c. 16 implements the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑operation in Respect of Parental Responsibility and Measures for the Protection of Children, but because Canada has not yet brought that Convention into force domestically, the provision is enacted yet not in force and has no current practical effect in cross‑border parenting cases.
This article provides general information only and does not constitute legal advice. Jurisdiction in cross-border family cases is highly fact-specific and may depend on the timing of proceedings, the legislation engaged, and the law of the competing jurisdiction. You should obtain tailored legal advice that reflects the specific facts of your own situation
