International Family Law is a rapidly developing area of Family Law. Globalization is transforming family law practice. There is a lot of international travel or mobility. People are travelling to other countries for commercial or educational reasons. More and more people are seeking work in other countries. In the course of these international travels, they form personal relationships. They marry, have children or acquire properties or own businesses in the countries where they reside or work. The parties may be residents of one country but citizens of another. They may be of different nationalities. They may own properties or businesses located in more than one country.
When these relationships break down, it raises a lot of complex legal issues for the family courts.
When parents of different nationalities divorce, each party wants to raise his or her children according to his or own culture. How would a child, with parents of different nationalities be raised? How is a marriage contracted in one country be recognized in another country? Which court has jurisdiction to determine issues dealing with custody, access, property division, divorce etc?; How is foreign support order enforced in another jurisdiction? How should the court deal with child abduction or the removal of children to another country during access visits? These family law issues extend beyond Canada and involve the laws of another country. It also means the laws of more than one country may be taken into consideration.
The extraterritorial aspects of family law pose new challenges and involves a mastery of applicable principles of private international law as well as public international law, both of which play an increasingly important role in international family law.
Private international law deals with rules regarding conflicts of law in disputes involving private legal persons. This includes conflicts of law principles and conventions by the Hague Conference on Private Law. Some of the applicable private international law conventions include:
These treaties are binding on member states and may be enforceable in national courts, with or without implementing legislation, as long as the member state has ratified it.
Public international law deals with norms and rules governing disputes among nation states. States enter into treaties addressing some of the transnational issues of family law eg enforcement of child support judgements. It also includes the application of international human rights law to international family law proceedings.
Some International Family Law scenarios
Scenario 1: Recognition of International Marriages
With respect to the recognition of foreign marriages, the general rule is that a marriage which is valid in one country ( eg country A) can be recognized as valid in another country ( eg country B). But what if the marriage is void as a matter of public policy in country B? Should polygamy in country A be recognized as valid marriage in country B where bigamy is against the law? Should same sex marriage in one country be recognized as valid in another country that bans such marriages or less enlightened legal regimes? What if was a marriage entered into with an underage child?
Scenario 2: International Divorce, Support, Property Division
Musa is a rich man from Egypt. He is married to two wives. Both wives have minor children for him. He moved to Canada with his two wives and children. One year after, he brought his new girlfriend to live with them. The two wives want a divorce. Is the second wife eligible to obtain a divorce? Does she need a divorce? Can she get property settlement? Child Support? Spousal Support? Assuming the first wife was able to obtain a divorce, support and property division, can the Canadian order be enforced in Egypt?
Jack and Jackie are both nationals France. They got married in the UK where they resided and worked for many years. In 2015, Jack relocated to Canada to set up a new business, while Jackie continued to reside and work in the UK. The marriage has broken down and the parties are seeking a divorce. Which country has jurisdiction over the divorce proceeding? France? the UK? Canada? Can a divorce judgment obtained in one country be enforceable in another country?
Scenario 3: International Access visits
Rosa has a 5 year old son, Bruce, as a result of a relationship she had with Jim, while residing in Kenya. Both Jim and Rosa never lived together but Jim visited his son regularly, even after Rosa ended the relationship when Bruce was 2 years old.
Rosa married Joe, when Bruce was 3 years old and they moved to London where they resided together. Joe had a very good relationship with Bruce and treated him as his son. During the marriage, Jim maintained contact with Bruce via phone and skype and visited him in London 3 times per year.
Jim’s mother, Alice, ( Bruce’s paternal grandmother) resides in Switzerland. She maintained contact with the child via skype and visited him once a year, during the Christmas holiday.
Rosa and Joe got divorced when Bruce was 7 years old. Rosa moved to Canada with Bruce a year ago.
Jim, Joe and Alice are seeking access to Bruce. Each of them wants access to the child.
On what basis are these people seeking access to the child? Which laws apply to this case? There are 4 countries involved: Canada, Switzerland, UK, and Kenya. Which country has jurisdiction to decide the case? Of all the requests for access, which one is the most problematic? What if Joe decides to keep his son after access visit and Kenya is not signatory to the Hague Convention?. What if Kenya is signatory to the Hague Convention, would that make the enforcement of the Convention any easier?
These scenarios are just examples of the kinds of issues that arise in international family law.
At Manafa Law Office, we have substantial experience representing clients with international family law issues. We appear in Ontario Courts on behalf of clients living in another country. We assist a parent to obtain a court order allowing him or her to relocate to another country with the children. We can also obtain a court order, based on the Hague Convention, to return a child abducted into Ontario or wrongfully removed from Ontario to a foreign country. We work closely with lawyers in different countries in order to present the client’s case in a manner that is likely to lead to the client’s desired outcome or the best possible outcome for the client.
Our services include:
If you are going through a divorce with transnational issues contact a Toronto International Divorce and Family Lawyer at Manafa Law Office.
