Married Abroad: Does Ontario Equalization Still Apply?

Many Ontario families began somewhere else. You may have married overseas, lived there for years, and then moved here, or you may have kept assets in two countries. When the relationship ends, a common worry is which country's rules decide who gets what.

There is no single answer that fits everyone. This article explains what Ontario's courts have confirmed, the Ontario rules that usually come into play, and the questions that need individual advice.

Can an Ontario court deal with a marriage that took place abroad?

Yes, in at least some situations. The Court of Appeal for Ontario has held that the Ontario Superior Court had jurisdiction under the Family Law Act to determine child support and equalization for spouses who married in China.

Whether Ontario or foreign law governs a particular issue is a different question from whether an Ontario court can hear the case. It depends on details such as where you lived during the marriage, where the property is, and what you signed. A lawyer can confirm how those details apply to you.

The Ontario rules that usually matter

Ontario's official guidance says married couples generally split property acquired during the marriage equally, with an equalization payment to the spouse with the smaller share. The family home must be divided equally unless the spouses agree to a different split, and a gifted or inherited family home does not count as excluded property.

Some property can be excluded. Property, other than a matrimonial home, acquired by gift or inheritance from a third person after the date of marriage is excluded, as is property that can be traced into it. Property the spouses agreed by a domestic contract not to include is also excluded.

Property owned on the date of marriage can usually be deducted, but not a matrimonial home that is still the matrimonial home at separation. If that home was sold before separation, the marriage-date value is deductible. This can matter for people who brought a home or assets into the marriage from abroad.

Contracts signed abroad or before you arrived

Spouses can vary the default rules by a domestic contract such as a cohabitation or separation agreement. A marriage contract or cohabitation agreement must be signed by both parties in front of a witness, and the witness must also sign. If you signed something before or at the time of your wedding in another country, the questions are whether it counts as a valid contract for Ontario purposes and what it covers. That depends on its wording and how it was made.

A court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets or debts existing when it was made, if a party did not understand the nature or consequences of the contract, or otherwise under the law of contract. This can be relevant if the document was in a language you did not read well, or you were given little information about the other person's finances.

Courts look at what actually happened. In one case, the contract recited that each party had received independent legal advice, though neither consulted a lawyer. The court did not decide whether the lack of advice or disclosure was proven. Do not assume that a document is final just because it says so.

There is no limitation period under the Family Law Act for an application to set aside a domestic contract, but consequential relief keeps its own period, such as six years for equalization. One judge disagreed with the broad statement, so the point is not free from debate.

Time limits and where property is held

For married spouses, an Ontario property claim must generally be brought within six years of the day of separation or two years from the day the divorce is final, whichever comes first. If a divorce was granted in another country, ask a lawyer how that affects your dates.

Property outside Canada raises practical issues. An Ontario order may be hard to enforce against assets held elsewhere, and local rules may apply to the property itself. Whether and how that can be done depends on the country and the asset.

• Real estate or accounts in another country.
• Pensions or savings earned abroad.
• A foreign marriage certificate or contract.
• Divorce or court proceedings already started in another country.

What to do next

• Gather your marriage certificate, and ask a lawyer whether any translation will be needed in your situation.
• Collect any premarital or marriage contract, with translations.
• Note the date you separated and where each of you lived during the marriage.
• List assets in Ontario and abroad, with statements and values.
• Tell your lawyer right away about any proceedings started in another country.
• Consider mediation: free mediation is offered at Ontario family courts on the day you are scheduled to be in court.

Family Law Information Centres in Ontario family courts can provide general information about separation, divorce and local resources. A family lawyer can then confirm whether Ontario or foreign law governs each issue in your case.

Frequently asked questions