What is the appropriate jurisdiction?
If you married your spouse outside of Canada, you could request a divorce or parenting time/custody measures in Quebec, even if your spouse continues to reside abroad.
According to the Divorce Act, Quebec courts have jurisdiction to pronounce a divorce judgment when at least one spouse has been domiciled or residing in Quebec for at least one year immediately before the initiation of divorce proceedings.
With respect to deciding on parenting time/custody, Quebec courts have jurisdiction only when the child(ren) are domiciled in Quebec.
In terms of child support, Quebec courts have jurisdiction to decide actions on the matter, or to revise a foreign judgment recognized in Quebec, provided that one of the parties is domiciled in Quebec.
However, Quebec courts may decide to decline jurisdiction if they believe another court is in a better position to decide on the dispute. Factors considered include, but are not limited to, the celebration of the marriage’s country, the established domicile’s country of the parties after marriage and whether or not proceedings have already been started in another country.
Inversely, when Quebec courts do not have jurisdiction on the matter, they could declare themselves having it under two cumulative conditions: 1) if proceedings are impossible to institute abroad or if we cannot reasonably require to do so and 2) if the matter has sufficient connection with Quebec.
An example from past case law on the impossibility criteria would be the situation of a refugee who was persecuted in his home country and would not have been heard in their courts. However, claiming the impossibility criteria based on the cost and inconvenients related to appearing in a foreign court is not an acceptable justification.
An example of a sufficient connection with Quebec could be the accumulation of various factors such as Canadian citizenships of the parties and/or children, residency or frequent visits to Quebec, properties owned in Quebec, etc.
Additionally, Quebec courts can declare themselves having jurisdiction in case of emergencies or serious inconveniences as long as it is meant to protect a person present in Quebec or to protect the person’s property situated there.
What are the procedures to start a divorce when my spouse lives abroad?
To initiate a divorce in Quebec, the spouses must first meet one of the following legal grounds:
The spouses lived separate and apart at the time of institution of the divorce proceedings and lived separate and apart for one year immediately preceding the judgment of divorce proceedings;
A spouse experienced physical or mental cruelty from the other spouse; or
The other spouse committed adultery.
A consultation with a family lawyer is important to understand your rights. Once mandated, a lawyer will prepare an originating divorce application which will cover all the necessary measures required for your specific case. At Spunt & Carin, we usually aim to have everything ready in two weeks, save and except for emergencies.
Once everything is ready, because of the legal nature of the originating divorce application, by law, it has to be served in person, but due to the international component, rules are different.
Canada is a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Convention), which aims to facilitate the service of judicial and extrajudicial documents abroad and has legal force in Quebec.
If the application is being served to a jurisdiction that is a signatory to the Convention, the document can be served through the designated central authority (agency) in that jurisdiction.
A spouse who wants to serve an originating divorce application in a jurisdiction that has not signed on to the Convention can do so in accordance with the law in force in the jurisdiction where the other spouse will be served or in line with Quebec civil procedure. In specific circumstances, upon request, the Quebec courts can authorize another method of service, such as via email or social media. The spouse serving the application should also determine how proof of service is established in that jurisdiction, if not using Quebec civil procedure.
The jurisdiction in which the document is to be served can require that the document be translated before service.
The Convention cannot be used if the spouse serving the application is unaware of the other spouse’s address.
We recommend that a family law lawyer practicing in the country in which service must be affected be consulted to determine the legal requirements for service, the translation of documents, if necessary, and any other requirements.
