Divorce is a challenging process, and when high net worth and international elements are involved, the complexities can multiply. For Ontario families with substantial assets and international ties, the dissolution of a marriage requires strategic planning, particularly with respect to choosing optimum jurisdiction. In this blog, we will explore some of the key elements and strategies associated with international high net worth divorces.
1. Jurisdictional Issues
The first step is determining the jurisdiction where the divorce will be handled. Canada’s Divorce Act has jurisdictional provisions. A lawyer can help determine if Canada (and in our case, Ontario) actually has jurisdiction to take on the case. Note that mere citizenship does not attract jurisdiction in our country. There may be more than one possible jurisdiction that could entertain the case. What does any marriage contract say about jurisdiction? It is important to act quickly and wisely.
2. Cooperation with Foreign Lawyers
At the Gene C. Colman Family Law Centre, we liaise with lawyers in foreign jurisdictions so that the international team can determine which jurisdiction may be more favourable for the client and what the international ramifications may be for such issues as (1) which jurisdiction has the most favourable laws given the facts of your case; (2) what are the enforcement standards in each jurisdiction; and, (3) what are the tax implications in each jurisdiction.
3. Recognition of Foreign Proceedings and Orders
Canada generally (with some exceptions) recognizes foreign court orders including divorce judgments, but the enforcement of foreign orders related to debts and assets as well as spousal support may require compliance with Canadian legal standards. A court may refuse to recognize a foreign judgment if it is contrary to Canadian public policy. An Ontario court may not recognize a foreign court order where the respondent did not receive notice or was not given an opportunity to be heard.
Where a high-net-worth husband secured a foreign divorce and two years passed since the date of the divorce, then the Ontario resident wife could be out of luck when it comes to asserting a property claim within Ontario.
In Ontario, property sharing is governed by the concept of “equalization of net family property”. This involves calculating the difference in the spouses’ net worth at the beginning and end of the marriage and equalizing the wealth accumulated during the marriage.
But please note that for Ontario’s Family Law Act to apply to property disputes, the last common habitual place of residence for both spouses must have been in Ontario. You can imagine that determining what facts meets that test requires legal expertise.
Assets and debts existing at the separation date, regardless of location, are generally subject to being included in the equalization calculation. This includes real estate, businesses, investments, and others. The Ontario court can consider assets and liabilities worldwide but Ontario cannot necessarily effectively ‘tie up’ foreign properties. (But it depends on the facts!)
5. Staying Informed About International Treaties
Your lawyer must determine which if any international treaties and conventions may impact everything from choice of jurisdiction, to service of originating court documents outside Ontario, to enforcement of orders.
6. Alternative Dispute Resolution
With your lawyer’s assistance, explore the benefits of mediation, mediation/arbitration, and arbitration in order to avoid court. But then we must keep in mind jurisdictional and enforcement issues and these considerations lead to the importance of liaising with legal counsel in the other jurisdiction.
7. Documenting Your Case
As with all family law cases, one must ensure all relevant documents, including financial records, prenuptial agreements, and evidence of asset ownership, are well-documented. Clear and comprehensive documentation strengthens your case and facilitates a smoother resolution.
There are many aspects of resolving an Ontario family law/divorce case where international aspects come into play. You want your legal team to have adequate legal knowledge. By working with a family law lawyer who understands the intricacies of international divorces involving Ontario residents, you can hopefully achieve a fair and equitable resolution tailored to your unique situation.
Ontario High-Net Divorce Lawyer
If you find yourself navigating the complexities of an international divorce as an Ontario resident with high net worth, the Gene C. Colman Family Law Centre is here to provide guidance and support. Don’t hesitate to reach out for a confidential consultation with Gene C. Colman.
Contact us today to arrange an in-depth remote consultation, where Gene C. Colman can thoroughly review your situation, address your concerns, and help you understand your rights and options in this intricate process.