Divorce for Expats: Legal Considerations in Different Jurisdictions

Understanding Divorce for Expats in Ontario

Who Qualifies as an Expatriate under Ontario Family Law Context

In the Ontario family law context, an “expat” generally refers to:

• Canadian citizens living outside of Canada but who still maintain a legal or emotional connection to Ontario.
• Foreign nationals living in Ontario who may wish to divorce under Canadian law rather than in their country of citizenship.
• Binational couples where one spouse is Canadian and the other is a foreign national, especially when they live in different countries during the marriage or separation.

Although “expatriate” is not a defined legal term under Ontario’s statutes, the residency status and location of both spouses can significantly influence which court has jurisdiction to grant the divorce.

Common Scenarios for Expats Seeking Divorce in Ontario

• Canadians Living Abroad – A Canadian citizen working or living overseas may still be eligible to file for divorce in Ontario if their spouse meets the province’s residency requirement.
• Foreign Nationals Residing in Ontario – Non-Canadian citizens who have established residence in Ontario can initiate divorce proceedings here, even if their marriage took place abroad.
• Binational Couples – Where one spouse resides in Ontario and the other in another country, Ontario courts may still have jurisdiction if the residency requirement is met, though the divorce may require recognition in the other country.

How the Federal Divorce Act Applies to Expats

Divorce in Ontario is governed by Canada’s federal Divorce Act, which applies uniformly across all provinces and territories. Under the Act:

• At least one spouse must have been ordinarily resident in Ontario for a minimum of 12 months immediately before starting the divorce application.
• The grounds for divorce—marriage breakdown due to separation, adultery, or cruelty—are the same for expats as for any other couple.
• For binational marriages, Ontario courts can issue a divorce order that is valid in Canada, but recognition in the other spouse’s country may require additional legal steps.

Residency Requirements for Filing a Divorce in Ontario

The Six-Month Residency Rule before Filing

To file for divorce in Ontario, at least one spouse must have lived in the province for a minimum of 12 consecutive months immediately before the divorce application is made. This is often referred to as the residency requirement under the Divorce Act. While sometimes mistakenly called the “six-month rule,” Canadian law requires one full year of ordinary residence before filing.

This rule applies regardless of nationality—meaning both Canadian citizens and foreign nationals must meet it if they wish to use Ontario’s courts.

How Residency Is Determined for Expats

For expatriates, “ordinary residence” is not simply about owning property or holding citizenship. Ontario courts will look at:

• Physical presence – The spouse must actually live in Ontario for the required period, not just visit occasionally.
• Permanent ties to Ontario – Employment, property ownership, family connections, or long-term rental agreements can demonstrate intent to reside.
• Immigration status – While not always decisive, lawful presence in Canada strengthens the claim of ordinary residence.

For example, if a Canadian citizen has been living overseas but returns to Ontario and resides there for 12 months, they become eligible to file for divorce in the province.

Options If Neither Spouse Meets Ontario’s Residency Requirement

If neither spouse meets the 12-month residency requirement, expats still have options:

• File in the jurisdiction where one spouse currently resides – This may be the fastest route, though recognition in Canada may require additional steps.
• Wait to establish residency in Ontario – If one spouse plans to move (or return) to Ontario, they can start the process after meeting the 12-month requirement.
• Seek a foreign divorce order and apply for recognition in Canada under the Civil Marriage Act if at least one spouse was ordinarily resident in the country granting the divorce for a year prior to the filing.

Jurisdictional Issues in Expat Divorces

Determining Which Country’s Courts Have Authority

Jurisdiction in divorce cases is generally based on residency, not citizenship. Under Canada’s Divorce Act, Ontario courts have authority if at least one spouse has been ordinarily resident in Ontario for the required 12 months prior to filing. However, another country’s courts may also claim jurisdiction if:

• One or both spouses are living there at the time of filing.
• The marriage took place in that country.
• Significant marital property or children are located there.

In some cases, more than one court may be legally able to hear the case, which can lead to forum shopping—choosing the jurisdiction perceived to offer the most favourable outcome.

Impact of Filing in Ontario vs. Abroad

The decision to file in Ontario or in another country can have long-term consequences:

• Ontario Filing – Ensures that the divorce is recognised throughout Canada, with orders enforceable under Canadian family law. This is particularly beneficial for dividing Canadian assets, enforcing spousal or child support, and securing custody arrangements under Canadian standards.
• Foreign Filing – May be faster or more practical if both spouses are abroad. However, recognition in Canada is not automatic, and additional legal steps may be required to register or enforce the divorce here.

Risks of Parallel Proceedings in Different Jurisdictions

When both spouses file for divorce in different countries at the same time, parallel proceedings can create serious problems:

• Conflicting court orders – One country may award custody to one parent, while another country awards it to the other.
• Enforcement issues – A support order granted abroad may not be enforceable in Ontario without additional court action.
• Increased costs and delays – Litigating in multiple countries can quickly become expensive and time-consuming.

To avoid these risks, expats should seek legal advice early, ideally from a lawyer experienced in international family law, to determine the most strategic and enforceable jurisdiction before any filing is made.

Division of Property across Borders

Ontario’s Equalization of Net Family Property Rules

In Ontario, property division upon divorce is governed by the equalization of Net Family Property (NFP) under the Family Law Act. This system does not physically divide each asset; instead, it calculates the growth in each spouse’s net worth during the marriage and ensures both leave the marriage with an equal share of that growth.
Key points for expats:

• All assets, whether in Ontario or abroad, are included in the NFP calculation, unless they qualify as excluded property (e.g., certain inheritances or gifts).
• The value of foreign property is converted into Canadian dollars as of the date of separation.
• Debts and liabilities, including those incurred outside Canada, are also considered.

Challenges in Valuing and Dividing Foreign Assets

Determining the accurate value of international assets can be challenging due to:

• Currency fluctuations – Exchange rates can impact the final NFP calculation.
• Local property laws – Foreign jurisdictions may have ownership or transfer restrictions that complicate division.
• Hidden or inaccessible assets – Tracing bank accounts, investments, or real estate in another country often requires local legal or investigative support.
• Tax implications – Selling or transferring foreign property may trigger taxes in both the foreign jurisdiction and Canada.

Enforcement of Ontario Property Orders Abroad

Even if an Ontario court issues a property division order, enforcing it internationally is not always straightforward.

• No automatic enforcement – Foreign courts are not bound by Ontario orders unless there is a treaty, reciprocal enforcement agreement, or local recognition process in place.
• Recognition proceedings – In many countries, a separate legal application must be made to have the Ontario judgment recognised before it can be enforced.
• Practical challenges – If the other spouse refuses to comply and the assets are in a jurisdiction with weak enforcement mechanisms, recovery can be difficult or impossible without additional legal action abroad.

Parenting and Custody Considerations for Expats

Applying Ontario’s “Best Interests of the Child” Test

In Ontario, all decisions about parenting time and decision-making responsibility are guided by the “best interests of the child” test under the Children’s Law Reform Act and the Divorce Act. For expats, courts will assess factors such as:

• The child’s emotional, physical, and psychological needs.
• Stability of the child’s living arrangements.
• The ability of each parent to meet the child’s needs, including in an international setting.
• The importance of maintaining meaningful contact with both parents despite geographical distance.

International Custody Disputes and the Hague Convention

If a child is taken across borders without the other parent’s consent, the situation can quickly escalate into an international custody dispute. Canada, including Ontario, is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which:

• Requires signatory countries to return children wrongfully removed or retained across international borders to their habitual residence.
• Provides a legal framework for resolving cross-border custody disputes efficiently.

However, if the other country is not a signatory, recovery may depend on local laws, which can be slower and less predictable.

Travel Restrictions and Relocation Applications

For expats, travel and relocation issues are common points of contention in parenting plans. Ontario courts may:

• Require written consent from the other parent or a court order before a child can travel internationally.
• Impose conditions, such as providing detailed itineraries, flight information, and contact details.
• Consider relocation applications carefully, weighing the benefits to the child against the impact on their relationship with the other parent.

Spousal and Child Support in Cross-Border Cases

How Ontario Calculates Support Obligations

In Ontario, child support is calculated primarily under the Child Support Guidelines, which use the payor’s income, number of children, and parenting arrangement to determine the amount. Spousal support is assessed under the Divorce Act and guided by the Spousal Support Advisory Guidelines (SSAG), which consider:

• Length of the marriage or cohabitation.
• Roles and contributions during the relationship.
• Income disparity between spouses.
• Needs and means of each spouse post-separation.

For expats, income from foreign employment or self-employment is still considered, but it must be converted to Canadian dollars for calculation purposes.

Enforcing Support Orders Internationally

Ontario support orders can be enforced abroad through Reciprocal Enforcement of Maintenance Orders (REMO/RESO) agreements.

• Ontario has reciprocal arrangements with many countries, including the UK, the US, Australia, and EU member states.
• If the recipient spouse lives in a country with a reciprocal agreement, they can register the Ontario order with local authorities for enforcement.
• In countries without such agreements, enforcement may require a new application in that country’s courts, which can be costly and time-consuming.

Foreign Income and Currency Exchange Considerations

Cross-border cases often involve income in foreign currencies or from multiple jurisdictions, creating challenges such as:

• Currency fluctuation – Exchange rates can impact the real value of support payments over time.
• Tax differences – Some foreign jurisdictions tax income differently, which can affect the net income available for support.
• Verification of foreign earnings – Pay slips, tax returns, and employment contracts from overseas employers may need translation or notarisation for Ontario courts.

Choosing the Right Jurisdiction for Divorce

Factors to Consider

When determining the most favourable and practical jurisdiction, expats should evaluate:

• Asset Division Laws – Ontario applies the Family Law Act’s equalisation of Net Family Property rules, which differ from community property systems in some countries. The treatment of excluded property, inheritances, and pre-marriage assets varies significantly across jurisdictions.
• Spousal Support Rules – The Divorce Act and Spousal Support Advisory Guidelines in Canada may result in higher or lower support amounts compared to foreign systems. Duration and eligibility also vary.
• Enforcement Options – Orders made in Ontario are enforceable across Canada and in countries with reciprocal agreements, but enforcement abroad may be easier if the order originates in the other jurisdiction.
• Child Custody and Relocation Laws – Some countries have stricter relocation rules or different approaches to shared parenting across borders.

Evaluating these factors often requires input from both Ontario counsel and legal experts in the foreign jurisdiction.

Strategic Considerations for Filing in Ontario or another Country

• Filing in Ontario – May be advantageous if significant assets are in Canada, if Canadian law provides more favourable property or support terms, or if ensuring enforcement in Canada is a priority.
• Filing Abroad – Can be faster or more cost-effective if both spouses are already living in another country, if most assets are located there, or if the foreign jurisdiction offers procedural advantages.
• Avoiding Jurisdictional Conflicts – Filing early in the preferred jurisdiction may prevent the other spouse from starting proceedings elsewhere (known as a “race to the courthouse”).
• Long-Term Practicalities – Consider where ongoing obligations, like support payments or custody arrangements, will need to be enforced over the long term.

The Role of Legal Advice in Expat Divorces

Working with Ontario Family Lawyers Experienced in International Cases

Not all family lawyers have experience handling expat divorces. Choosing an Ontario lawyer with a strong track record in international family law ensures:

• A thorough understanding of Ontario’s Divorce Act, Family Law Act, and child custody legislation.
• Knowledge of how to value and divide assets located abroad.
• Experience in handling international service of documents and evidence gathering.

An experienced Ontario lawyer will also anticipate potential recognition and enforcement issues before they arise.

Coordinating with Foreign Counsel

Cross-border divorces often require a two-lawyer approach—one in Ontario and another in the foreign jurisdiction involved. This coordination helps:

• Ensure court orders are recognised and enforceable in both countries.
• Align strategies on asset division, custody, and support.
• Manage procedural differences, timelines, and documentation requirements.

Preventing Jurisdictional Conflicts Through Legal Planning

Jurisdictional disputes can delay proceedings and increase costs. Proactive legal planning can prevent these issues by:

• Determining the most favourable and practical jurisdiction before
• Filing in the chosen jurisdiction promptly to avoid parallel proceedings.
• Structuring agreements in a way that anticipates cross-border enforcement.