International Divorce in Canada

We’ve talked about many aspects of divorce, including options for getting a divorce in Canada and who gets what in a divorce. Divorcing is never easy, but when international factors come into play, the process can become even more complex. Whether you or your spouse live in different countries, were married abroad, or hold foreign assets, navigating an international divorce in Canada requires a clear understanding of legal requirements, jurisdictional issues, and potential complications.

International divorce can be highly complex. If your divorce involves an overseas spouse or assets in a foreign country, you should consult with an experienced international divorce lawyer. The legal professionals at Onyx Law Group have expertise in handling international divorce cases. We can explain your legal rights and ensure the divorce process is handled smoothly. Contact us today for an initial consultation.

Today’s article is all about dealing with the complexities of international divorces. We’ll discuss legal requirements, how to file and serve divorce papers, and challenges that may arise on the road to getting a valid foreign divorce.

How Does International Divorce in Canada Work?

In our province, the family law system is governed by two main laws: the British Columbia Family Law Act and the federal Divorce Act. Both laws contain rules and procedures that may apply to your divorce proceedings. Depending on the issues at stake in your divorce, the Hague Convention and foreign divorce laws (laws from another country) may need to be considered.

Other BC laws may also apply (e.g., the Court Order Enforcement Act; the Interjurisdictional Support Orders Act). You should contact a lawyer specializing in international divorce for advice on which laws apply in your specific situation.

Legal Considerations for Expats and Non-Residents

Before we get into the process of filing for international divorce, it’s important to understand who is eligible to file for divorce in Canada.

Foreign Marriages and Their Validity in Canada

A marriage that was legally performed in another country is usually accepted as valid in Canada, though there are exceptions, for example, due to the young age of a spouse at time of marriage. If your marriage wasn’t a legal marriage ceremony or is deemed not to be legal in accordance with Canadian law, you may not need a divorce order to end it.

If your foreign marriage is recognized as legally valid in Canada and you meet BC’s eligibility requirements (discussed below), you can use the BC court to get a divorce.

Do You Already Have a Valid Foreign Divorce?

A divorce order made in a foreign jurisdiction is typically recognized in Canada if either spouse is “habitually resident” in the jurisdiction that made the order (also called “ordinarily resident”). If at least one spouse resides in the country that made the divorce order for at least one year before divorce proceedings were started in that country (see s. 22 of the federal Divorce Act), they are considered “ordinarily resident” there, and the divorce order made in that country will be given effect in this province.

If the residency requirement is not met, the divorce order may still be recognized in Canada if the spouse who obtained the foreign divorce can show a “real and substantial connection” with that country at the time the divorce order was granted. A real and substantial connection can be shown by factors such as citizenship or ownership of property in that country.

There are exceptions to recognition of foreign divorces in Canada. For example, if the other country’s divorce laws contravene Canadian public policy or one spouse didn’t receive notice of the foreign divorce proceedings, Canadian courts may not recognize a divorce decree issued abroad.

Challenges in International Divorce Canada

There are many potential challenges in international divorce cases. In addition to language differences and differences in culture, policy, and religion, there are also logistical issues (for example, service of divorce papers on an overseas spouse) and practical difficulties (for example, locating and valuing foreign property or assets).

You will need to navigate foreign court rules and procedures, as well as divorce laws that may differ from Canadian divorce laws. The laws that apply in your case can have a very significant impact on the outcome. A prenuptial agreement or separation agreement signed in one country may not be recognized in Canada. Property rights, such as the right to division of net family property, and spousal support entitlement can differ widely from country to country. It’s so important to understand the laws of the countries involved as they can have very significant financial implications.

Child custody and child support are more complex in international divorces. Issues such as who the children will live with, relocation to another country, and enforcement of child support orders in another country may arise. Matters such as international child abduction and attempts by one parent to unilaterally change a child’s country of residence should be handled by a family lawyer with expertise in handling international divorce cases.

How Can an International Divorce Lawyer Assist With Cross-Border Cases

If your divorce proceedings involve an international aspect, it’s highly recommended that you hire an international divorce attorney. People who hire lawyers specializing in international divorce get the benefit of advice on everything from the crucial differences between Canadian divorce law and foreign divorce law, which jurisdiction is best to file in, and how to comply with the complex rules of international service (see below for more on service).

An international divorce lawyer can help you with practical aspects such as gathering necessary documents (your marriage certificate, court certified copy of any order or decree made in your case, official translations of documents; etc.). A lawyer can also help in situations where an overseas spouse’s whereabouts are unknown by hiring an investigator or skip tracer or obtaining an order for substituted service.

If your former spouse is hiding or depleting assets in a foreign country, your international divorce lawyer can take steps to locate and protect assets. If necessary, your lawyer can obtain court orders to protect assets and take steps to ensure compliance with any court orders.

How Can International Divorce Lawyers Help With Complex Cases

The engagement of multiple legal systems can present major problems. There may be conflicting laws in the other country involved, or there may be laws that deviate substantially from the rights and obligations in Canadian family law.

When it comes to issues such as international property division, child custody and relocation issues, for example, you need to know those differences so you can protect yourself, your children, and your assets. An experienced international divorce lawyer can help you understand the differences and provide a legal opinion on the best jurisdiction in your specific situation.

In addition to explaining differences in the laws and helping you decide which country to divorce in, a lawyer with expertise in handling international divorce cases can advise you on alternative dispute resolution options. Court proceedings are always available, but you may want to explore alternatives to court such a mediation and arbitration that may save time, money, and stress.

There are other complexities that an international divorce lawyer can assist you with, such as providing a legal opinion on the validity of a foreign divorce order. A caution is warranted here: if a valid divorce order was made in another country, it can significantly impact important matters such as your entitlement to spousal support and property division rights in Canada. It’s strongly recommended that you contact a seasoned family lawyer in BC for advice as soon as possible.

Who Can File for Divorce in Canada?

Regardless of where your marriage took place, Canadian courts can’t hear or determine divorce proceedings unless they have jurisdiction. Jurisdiction depends on at least one spouse being habitually or ordinarily resident in a Canadian province or territory.

To be eligible for divorce in British Columbia, you or your spouse must have been living in BC for at least one year or more and must still be living in the province when the divorce application is filed. If that is not true for one or both of you, you are not eligible to apply to the BC court.

How to Get an International Divorce

Here are the steps in the divorce process when your spouse resides in another country.

1. Hire an International Divorce Attorney

International divorce is fraught with legal complexities. It can be a nightmare for an unexperienced person to manage cross-border challenges and variances in laws without a legal professional.

It’s possible to get a divorce without a lawyer, but it may cost you more time, money, and frustration in the long run. Considering hiring the international divorce lawyers at Onyx Law Group who can help make the process move forward as efficiently and smoothly as possible.

2. Determine Jurisdiction

Let’s now assume that you want to start divorce proceedings in British Columbia. As discussed, a BC court only has jurisdiction in your divorce case if the residency requirement is met (at least one spouse has resided in BC for at least one year).

Once it’s determined that you meet the residency requirement, the next requirement is establishing that there has been a breakdown of your marriage. Canada has no fault divorce, which means the only legal grounds for divorce is marriage breakdown. Federal law dictates that marriage breakdown can be established in one of three ways. The most common is being separated for at least one year, meaning living apart with the intention of ending the marriage.

3. File for Divorce and Serve Papers Internationally

The next step is to start divorce proceedings. In BC, divorce proceedings are started by filing a Notice of Family Claim with the Supreme Court and serving divorce papers on your spouse.

There are unique issues when it comes to serving divorce papers when your spouse lives abroad. Service must comply with the provincial Supreme Court Family Rules for service and local laws set by the country in which your spouse resides. If your spouse resides in a country that is a contracting state of the Hague Service Convention, service must be carried out in accordance with those procedures.

Failure to follow proper procedures can have a very negative impact on your case. See here for discussion of Wang v. Lin, 2016 ONSC 396, a cross-border child support case from the Ontario courts. The mother’s failure to comply with international rules for service caused significant delay and the Ontario Superior Court ordering her to pay substantial costs.

4. Resolve Financial, Property, and Custody Issues

After your spouse has been properly served with divorce papers, the next step is to await their filed response. If your spouse doesn’t respond, you can move forward to obtain an uncontested international divorce.

If your spouse files a response, it will be necessary to resolve all issues in dispute, such as child custody, child support, parenting issues, calculating spousal support, and property division. An international divorce attorney can help gather necessary documents and financial information, prepare and file court forms, and advocate in court on your behalf.

You and your former spouse can attempt to resolve issues at any point after divorce proceedings have been started. Your lawyer facilitates this. If you reach an agreement, either by negotiation, mediation, or other alternative dispute resolution options, it can greatly speed up the divorce process, reduce legal fees, and give you more control over the outcome.

If you and your spouse can’t agree about some or all issues, your case will go to trial in the BC Supreme Court. A judge will make the final decision on any outstanding issues and grant a divorce order. Your lawyer can assist you with enforcement family law orders such as orders for spousal support or child support in the country where your spouse resides.

How Long Does an International Divorce Take

The timeline depends on several factors, including the complexity of your case, the countries involved, and whether you and your former spouse agree on the terms of your divorce. Mistakes in your divorce paperwork and failure to properly serve them on your overseas spouse will drag the timeline out.

An uncontested divorce application in BC that doesn’t involve a foreign jurisdiction typically takes about three to six months from the date of filing to the date the divorce order is issued by the court. An uncontested international divorce will take longer due to service requirements and coordination between the jurisdictions.

A contested divorce application will take longer. Depending on the complexity of issues, it can take six to 18 months, if not longer, to resolve issues pertaining to property, debt, support, and children in a divorce case that doesn’t involve a foreign country. You should expect a contested divorce with an international aspect to take at least that long as well—if not longer.

How to Get a Fast International Divorce Process

Working with an experienced international divorce attorney is the best way to expedite the process. Your lawyer can help you determine the quickest route, avoid unnecessary delays, and keep your divorce case on track. Your lawyer can also speed things up by:

• gathering necessary documents and information so it’s ready to go when you need it;
• preparing your divorce paperwork completely and accurately so it’s not rejected by the court; and
• coordinating effective service of filed court documents on your overseas spouse.

Another excellent way to move things forward is to attempt negotiation, mediation, or arbitration. If an agreement is reached, your case can be completed without the need for lengthy court proceedings.

How Much Does International Divorce Cost?

Court fees for a BC divorce application range from $290 to $330 CDN. You’ll need to budget for other expenses such as obtaining your marriage certificate, translating documents, notarizing or authenticating documents, obtaining a court certified copy of orders, the cost of hiring a skip tracer, document delivery fees, and travel costs.

Beyond those typically expected expenses, the cost will greatly depend on factors unique to your case. If you hire a lawyer, they will charge for their services on an hourly rate or a flat fee based on their level of experience. If there are issues with locating or valuing foreign property or assets such as bank accounts, it may be necessary to hire experts, which will increase the cost of the process. We welcome you to reach out to Onyx Law Group to review your case and discuss legal fees.

Need an Experienced International Divorce Attorney in Canada?

International divorces can be extremely challenging. Just figuring out where to begin can be overwhelming. All you need to do to start the process is reach out to a lawyer with expertise in international divorce proceedings.

The experienced lawyers at Onyx Law Group in Vancouver are here to provide you with advice and support, whatever legal issues you may be facing in your divorce. Let us handle the legal complexities so you can move forward with confidence towards a fresh start.

Contact us today to schedule your initial consultation.