Jurisdiction that decides issue of Divorce Also Decides Property Issues. Child Support Cannot be Left Undecided, However
There is an interesting case in the Ontario Court of Appeal that provides a counter-intuitive result. It is called Cheng v. Liu, 2017 ONCA 104 (CanLII). You can read it here.
In this case, the Father and Mother had a brief marriage in China. The Father moved back to Canada and the daughter stayed with the Mother in China.
The Mother brought divorce proceedings in the Superior Court of Justice in Ontario. This court held that because the main issue is child support, the Chinese court should resolve the issue.
The Mother brought a claim for: Divorce, child custody, access, support, spousal support and a share of matrimonial property in Chinese court.
The Chinese court issued written reasons for judgment at the end of the trial. The court granted the Divorce. The Father failed to make proper financial disclosure of his Canadian income and assets however and therefore the all issues regarding money (support and property) must be resolved in Ontario,
The Mother attempted to appeal the Chinese decision but was denied. When the Mother attempted to re-activate her Ontario proceeding.
The Honourable Justice Hourigan of the Ontario Court of Appeal reaffirmed the rule that the property issues must be decided in the jurisdiction where the Divorce is granted. Only the Chinese court, therefore could grant the Mother spousal support and an equalization of net family property.
The Mother was entitled to bring a claim for child support in the Ontario Court of Justice, however, because the court that dealt with the Divorce proceedings (China) did not address child support at all.
Justice Hourigan was guided by this doctrine:
“[I]n the matter of the future and welfare of infants, there need be no absolutes or imperatives. It would be a great pity if constitutional doctrine had to be so applied as to prevent a court, able to help a child, from doing so. It is the rule of common sense that I should hear this application.”
This quote and decision is consistent with my understanding technicalities and procedures should not prevent children from getting the support they need.
This judgment is consistent with the rule of thumb that states that ignoring the judgments from other jurisdictions because it is different than those of Ontario is disrespectful and wrong. However, is it disrespectful if an Ontario judge decides an issue usually reserved for a foreign jurisdiction if it is at the request of the foreign judge?