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A recent family law decision should serve as a cautionary tale to counsel and clients that what happens in a foreign court can have dramatic consequences on an Ontario court proceeding, says Toronto family lawyer Michael Stangarone.
The question before the Ontario Superior Court in Younis v. Bar was whether it had jurisdiction to determine issues of spousal support and net family property after a divorce had already been granted in Texas, explains Stangarone, a partner with MacDonald & Partners.
The case involved a couple who married in Oakville, Ontario, but relocated to Texas. While pregnant, the wife returned to Ontario for a visit, only to advise the husband that she was not returning to Texas. The husband started an action in Texas, which the wife countered with an application in Ontario and moved ex parte (without notice) to obtain an order for sole custody of the child, says Stangarone, who represented the husband in the case.
The wife, he says, also sought spousal support and an equalization of net family property in Ontario and sought a declaration in Texas that that court had no jurisdiction over any of the issues. The Texas court declined her request, ruling that the parties could proceed with the issues in Texas, but that Ontario had jurisdiction over issues pertaining to the child. The wife did not appeal the order.
The husband proceeded to obtain a divorce in Texas, where spousal support was denied and the property issues resolved. The wife did not appeal or move to set aside the Texas divorce order, but did bring an interim motion for spousal support in Ontario, explains Stangarone.
According to court documents, the wife argued that the order in Texas was not validly obtained, alleging misrepresentation and fraud. The Ontario judge, Justice William Hourigan, rejected her submission, finding that the Ontario court has no jurisdiction to deal with the issue of spousal support or net family property in the case.
“The Younis v. Bar decision is significant as it affirms appellate case law and makes clear that the Ontario Court does not have jurisdiction to determine corollary relief under the Divorce Act or the Family Law Act once a divorce order is made by a foreign court. Once a party is divorced by a foreign court, he or she is no longer a spouse entitled to spousal support,” says Stangarone. The mother was also ordered to pay costs to the father by Justice Hourigan in the amount of $7,500.
Another significant aspect of the case, says Stangarone, is the court’s discussion of the Interjurisdictional Support Orders Act (ISO Act). The ISO Act provides for a method of enforcing foreign ‘support orders’. The wife’s counsel, he explains, argued that the ISO Act had application to the case, and the husband should have registered the order made in Texas so that the wife could attack it in Ontario.
“In this case, the court in Texas dismissed spousal support. There was no requirement to pay. The Act therefore did not apply as there was no order for the ‘payment of support’ as defined in the statute. There was no obligation on my client to register the order in Ontario in the circumstances,” he says.
Ultimately, Stangarone explains that counsel need to properly advise their clients in inter-jurisdictional cases, otherwise their claims may be prejudiced.
“What happens in a foreign court can have dramatic consequences on the Ontario court proceeding. Clients should not simply ignore orders made by foreign jurisdictions. They should be challenged, set aside or appealed. Motions to determine or assume jurisdiction should be brought in Ontario at the earliest opportunity. If action is not taken, a client could find him/herself in a position where their claims made in Ontario are extinguished without a proper determination of their merits,” he says.