In family law matters involving spouses who live in different cities, clients often ask whether or not they can file for divorce in Ontario. As Toronto Divorce Lawyers, this question surfaces frequently.
Determining the proper jurisdiction with respect to the filing of a divorce is primarily governed by federal legislation, namely the Divorce Act. The analysis typically focuses on residency requirements and, where children are involved, the location of the child’s habitual residence.
The Issue of Residency
The Divorce Act applies uniformly across all provinces in Canada. The key jurisdictional provision is found in s. 3(1) of the Divorce Act, which stipulates, “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately proceeding the commencement of the proceeding.” As Toronto Family Lawyers, we know that this means that Ontario courts can grant a divorce in Ontario, despite one spouse living outside of Canada, so long as at least one of the spouses has been living in Ontario for the required one-year period before starting the divorce application. The Ontario courts do not require both spouses to reside in Ontario for the proceeding to commence in Ontario.
Another jurisdictional issue arises when the divorce proceedings start in more than one location. This is addressed in s. 3(2) of the Divorce Act. If two divorce proceedings between the same spouses are commenced in different jurisdictions that would otherwise have authority, the court that generally retains jurisdiction for the matter is the court where the proceeding was started first. Furthermore, the second proceeding is deemed discontinued. This particular section of the Divorce Act exemplifies the importance of determining the appropriate jurisdiction early and commencing the proceeding promptly if Ontario is the preferred jurisdiction. The best divorce lawyers in Toronto will understand this concept. Lawyers specializing in family law will guide you accordingly.
The Involvement of Children
When a divorce involves parenting issues, the jurisdiction of the proceedings usually (but not always) depends on where the children live. While Ontario may have jurisdiction to grant the divorce itself, parenting orders are typically determined in the jurisdiction where the children are habitually resident. There are some situations where this does not apply. As such, when children are involved, it is crucial to speak to a custody lawyer in Toronto.
Recent provisions of the Divorce Act emphasize that the courts should generally defer to the jurisdiction of where the children normally live. Nevertheless, if the child is habitually resident outside Canada, a Canadian court may exercise jurisdiction over parenting issues in exceptional circumstances.
Ultimately, developing a strong understanding of these jurisdictional principles is essential for individuals considering whether Ontario is the appropriate place to commence a divorce proceeding. Sometimes a simple divorce is not achievable due to jurisdictional issues. Yours might be a situation where determining the proper jurisdiction is better left to experienced family lawyers.
At GOLDSTEIN Divorce & Family Law Group, we have some of the best lawyers for divorce in Toronto. At the same time, we offer affordable family lawyers. No matter what your budget, we would be pleased to assist you with your case. Please contact us at 416-519-5552 or at info@amglaw.ca and one of our Toronto Divorce Lawyers will get back to you immediately. Also feel free to browse our website for other useful information at www.amglaw.ca.
