Our client commenced family law proceedings in 2024. Approximately three weeks prior, the Respondent had initiated similar proceedings in Spain. Without attorning to Ontario’s jurisdiction, the Respondent asserted that Spain was the proper forum to resolve the legal disputes between the parties. Consequently, he filed a motion before Ontario’s Superior Court to stay the Ontario proceedings—a motion that was ultimately denied in our client's favour.

In her original application, our client sought, among other relief, a divorce, child support for her child, spousal support, and equalization of the net family property. These claims were made under the Divorce Act, the Family Law Act, and the Children’s Law Reform Act. The situation was further complicated by the fact that while the Applicant habitually resided in Ontario, the Respondent lived in Spain. The Applicant’s claim to a property for the purposes of equalization was located in The Bahamas, and claims to assets arising from the sale of vacant land previously owned by the parties in Spain were still located in Spain. The parties had no property in Ontario—or Canada, for that matter.

At the Jurisdiction Motion, the Superior Court ultimately determined that Ontario had jurisdiction simpliciter over all issues before it, including property and equalization. Initially, our position was that a new presumptive connecting factor for the property and equalization issues should be established under the common law, citing Canadian private international law principles enumerated in the Supreme Court of Canada's Van Breda and the Ontario Court of Appeal's Wang v Lin. Our client habitually resided in Ontario and was an ordinary resident. The parties' property further served as security for support, which established a debtor-creditor relationship that divided value and created in personam equalization entitlement. However, it became evident that a real and substantial connecting factor already linked Ontario to the property and equalization issues in litigation, due to their interdependency with spousal support. As noted by the Honourable Mr. Justice Diamond:

Matters such as whether certain property is included or excluded in the net family property made subject to equalization may have profound effects on the ensuing support determinations.

In Greenglass, the Ontario Court of Appeal previously emphasized that the Court's obligation to resolve claims for property and equalization prior to addressing spousal support claims stems from the inextricable link between the two remedies. When determining spousal support, a party's means (including capital assets) must be taken into account:

That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis. 

Once the spousal support claims are properly brought before the Court and jurisdiction simpliciter is established for that issue, the same real and substantial connection that grounds jurisdiction for spousal support also grounds property and equalization. In other words, if the Court has jurisdiction simpliciter over support, it has jurisdiction simpliciter over property and equalization—a simple but inextricable link.

_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice. Johnnie Cox is an Associate Lawyer at John G. Cox Family Law. With an International Commercial Law LLM from the University of Sussex, his academic background in international corporate governance and comparative law positions him to effectively navigate complex family law matters.}

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