The children primarily reside in China, and moving them to Ontario would disrupt their stability
In a recent ruling, the Ontario Superior Court of Justice dismissed a mother's application for parenting time, support, and property division, ruling that the Shanghai People’s Court was the appropriate forum due to prior agreements and proceedings between the parties.
The mother and father, who married in 2019 in China and separated in March 2022, have two children born in 2018 and 2020. Following their separation, they entered into an initial divorce agreement addressing parenting and financial matters, which they later found unenforceable under Chinese law.
In May 2023, the father initiated formal divorce proceedings in Shanghai. During a second hearing, both parties, represented by their lawyers, agreed to a final agreement encompassing parenting, property division, and support. The Shanghai People’s Court subsequently issued a divorce order.
After returning to Toronto in August 2023, tensions arose between the mother and the paternal grandmother, who accompanied the children for the grandmother’s citizenship process. The mother alleged assault by the grandmother and claimed that the father misrepresented his intentions to stay in Canada, leading to the children's return to China. The father argued that the stay in Canada was temporary.
The mother filed her application in Ontario, claiming outstanding support and seeking equalization of property. The father countered, requesting dismissal of the application and asserting that Ontario lacked jurisdiction. He contended that the Shanghai People’s Court's orders should be respected as the parties had attorned to its jurisdiction.
The court granted the father’s motion, highlighting that the mother and father had agreed to and participated in the Shanghai court proceedings, which concluded with a comprehensive agreement on parenting, property, and support. The decision noted the divorce's validity and emphasized that Canadian courts typically recognize foreign divorce orders if one spouse resided in that country for at least one year before the proceedings.
Citing the Children’s Law Reform Act, the Superior Court found insufficient evidence that the children’s best interests required Ontario’s intervention. The children’s primary residence and schooling were in China and moving them back would disrupt their stability. Furthermore, the father had provided for the mother's parenting time via video calls and indicated no prohibition on her visiting China.
The court underscored that pursuing legal matters in China would be less costly and more practical, as most assets and relevant parties, including the grandmother, resided there. While the court acknowledged jurisdiction under the Family Law Act for equalization and support despite a foreign divorce, it noted that the Shanghai court had already settled these issues.
The court also found that the mother’s argument of a breached relocation contract held little weight as any potential relocation attempts had failed. The court affirmed that the mother, as a former spouse, could not claim spousal support under Ontario law post-divorce.
