Glen Schwartz, a family lawyer at Nathens, Siegel LLP answers:
Does a spouse have any rights regarding property located outside of Ontario in a divorce?
It is important to outline what constitutes property upon the breakdown of a marriage in the context of family law disputes in Ontario. The Family Law Act, which is the pertinent legislation in Ontario dealing with proprietary rights in the context of family law, defines property as “any interest, present or future, vested or contingent in real or personal property.” Such property for can be located within or outside of the province of Ontario. While the Act does require the parties to include all interest in property – no matter where it’s located – for the purposes of equalization, the Family Law Act does not deal with the actual, physical division of any of such property.
When would it be required for a court to make orders with regards to property? Our courts in Ontario are often asked to determine ownership interest in property and asked to order the sale of property. As a result of these questions being asked of Ontario courts, they are required to make orders with regards to property. The legal notion that Ontario courts do not have the authority to make an order against foreign property is common in case law. There have been numerous decisions rendered throughout our Canadian legal system that have stated that Ontario courts do not have authority to grant any order over property when it is located outside of the provincial jurisdiction.
With parties accumulating more and more marital assets outside of the province, and with the jurisprudence in place stating that Ontario courts do not have the authority to award an order over property located outside of the jurisdiction, there has been an increasing trend amongst Canadians towards attempting to seek relief from our courts through common-law property claims. Parties are requesting that the courts make an award in personam, whereby the courts will compel a personal obligation upon an individual. For example, the court cannot award the sale of a property located outside of its jurisdiction as it does not have the authority to make an order against the property itself, but the in personam award allows the court to obligate an individual to carry out an action – which provides for the same result as if an order had been made against the property itself.
There seems to be conflicting mindsets as to the court’s authority to make orders with regards to foreign property. On one hand, there is the general rule, determined by case law, that Ontario courts cannot deal with property located outside of their jurisdiction. However, with the increasing amount of common-law claims being put forward regarding interests in foreign property, the courts have demonstrated a willingness to grant such in personam relief in exceptional cases. There are no clear-cut answers with regards to the Ontario courts’ authority when handling issues relating to foreign property. It is necessary to seek proper independent legal advice when any related issue associated with foreign-owned property arises.
Contact one of our offices to discuss your case with a Mississauga or Toronto family law lawyer. You can reach us by phone at 888-353-1817 or via email to get started.
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