BACKGROUND
The parties met and married in China. After separating on March 15, 2022, the Father initiated divorce proceedings in China. The parties subsequently entered into a binding final agreement addressing parenting, property, and financial matters, resulting in the Shanghai People's Court issuing an order dissolving their marriage.
In August 2023, the Father and Mother moved to Toronto, Ontario. In October 2023, the children arrived in Toronto with their paternal Grandmother, who was completing her citizenship application. During their stay, conflicts arose between the Mother and the Grandmother, with the Mother alleging that the Grandmother assaulted her and that the Father threw a laundry basket at her, incidents that led to police intervention.
In January 2024, the Father, Grandmother, and children returned to China, where the older child resumed school at the Kindergarten affiliated with Fudan University, where the Father is employed. The Father contends that the children’s stay in Toronto was temporary, while the Mother claims they had intended a permanent relocation to Canada. She further alleges that the Father misled her about his intentions and took the children back to China under false pretenses.
On January 30, 2024, the Mother filed an Application in Ontario, seeking equalization of property, as she claims the Father holds substantial assets in Canada. She also asserts that spousal support was not addressed in China and is now seeking equalization, parenting time, child support, and spousal support in Ontario.
In response, the Father filed a motion to dismiss the Mother’s Application, arguing that Ontario lacks jurisdiction over the outstanding issues related to parenting, property, and support. Alternatively, he seeks a declaration that the Shanghai People's Court is the more appropriate forum for resolving these matters.
ANALYSIS
The court granted the Father’s motion to dismiss the Mother’s Application, concluding that the Shanghai People's Court is the appropriate forum to address any remaining issues, as both parties had attorned to its jurisdiction, and it had already issued a binding order in August 2023 covering parenting, property division, and support. The court found that there was no dispute regarding the validity of the divorce order granted in China, nor any indication of improper forum-shopping.
The court emphasized that the parties’ final agreement, reached in the Shanghai People's Court, explicitly addressed the children's residence, property division, and financial support. Under the agreement, the children were to reside with the Father, and each party retained their respective properties in their own jurisdictions. The Final Agreement also specified the amount the Father would pay to the Mother.
Regarding the habitual residence of the children, the Father provided evidence showing that from 2014 to 2019, the children primarily resided in China. Based on the Children’s Law Reform Act, s. 22(1)(b), Ontario courts may only exercise jurisdiction over parenting matters if certain factors are met, including the presence of substantial evidence regarding the children’s best interests in Ontario, a real and substantial connection to Ontario, and the appropriateness of exercising jurisdiction in Ontario. The court did not find these criteria satisfied, as the children were settled in China, with one child attending school and both under the care of their Grandmother. Moving the children back to Toronto was found to be against their best interests, as it would disrupt their lives.
The Father indicated that the Mother has access to the children via video conference and is free to return to China to exercise in-person parenting time. The court acknowledged that while the Mother’s desire to be with her children is genuine, the balance of convenience favored continuing proceedings in China, where the parties had already litigated and agreed upon arrangements through their final agreement. Moreover, most assets relevant to property division were located in China.
The court also found that the divorce granted in China is presumptively valid under Canada’s Divorce Act, s. 22, which recognizes foreign divorces if either spouse resided in the issuing country for at least one year before the proceedings. As both parties resided in China for this required period, the court determined it did not have jurisdiction to proceed with a corollary relief application following the valid divorce in China.
Although the court holds jurisdiction to adjudicate equalization and support issues under the Family Law Act following a foreign divorce, as stated in Cheng v. Liu (2017), 136 O.R. (3d) 172 (C.A.), these matters had already been resolved by the Shanghai People's Court in the parties’ final agreement. The agreement specifically allocated each party’s respective assets, reinforcing that the Mother, now a former spouse, could not pursue spousal support under either the Family Law Act or the Divorce Act, per Sonia v. Ratan, 2024 ONCA 152.
The Mother’s argument that a relocation agreement had been breached was also dismissed, as any efforts at relocation or reconciliation between the parties ultimately failed.