Key takeaways:
- In May 2020, the Supreme Court of British Columbia, Canada ruled to partially recognize a Chinese divorce judgment by recognizing the part on spousal support, but not the part on child custody and child support (Cao v. Chen, 2020 BCSC 735).
- In the view of the Canadian court, the Chinese child support order was not a final order for the purposes of recognition in Canadian law, and the court, therefore, declined to recognize it on that basis.
- The fact that the Chinese maintenance order was refused recognition on the ground of finality seems to call into question the principle of finality, as the question of finality is generally determined by the law of the country of origin, i.e. Chinese law (rather than the law of the requested country, i.e. Canadian law).
On 13 May 2020, the Supreme Court of British Columbia, Canada ruled to partially recognize a Chinese divorce judgment by recognizing the part on spousal support, but not the part on child custody and child support (See Cao v. Chen, 2020 BCSC 735). The Chinese divorce judgment was rendered by Weifang Intermediate People’s Court, Shandong Province on 10 June 2013.
I. Case Overview
The claimant, Ms. Cao, and the respondent, Mr. Chen, were married in January 1994 in Weifang, Shandong Province, China, and had three children.
The claimant first came to Canada in May 2007 and has been a permanent resident ever since.
In 2007, one of the children started school in Richmond, British Columbia, and attended consecutively there. By 2012, all of the children were enrolled in schools in British Columbia.
On 3 Mar. 2010, the respondent commenced a claim against the claimant in the Fangzi District Court, Weifang City, Shandong Province, China.
On 21 Jan. 2013, the Fangzi District Court made the following orders pursuant to the trial judgment (the “trial judgment”):
- a. a divorce was granted;
- b. custody and child support were determined, with Ms. Cao receiving custody of one child and Mr. Chen receiving custody of another child and each party bearing the support of the child in their custody;
- c. family assets in China were determined and divided; and
- d. spousal support was denied to the claimant.
On 24 Jan. 2013, the claimant appealed the trial judgment to the Weifang Intermediate Court. She had counsel appear and argue her appeal.
On 10 June 2013, the Weifang Intermediate Court dismissed the appeal and upheld the trial judgment.
On 30 June 2014, the respondent’s son brought an application in Canada, seeking to have the Chinese Judgment recognized and given effect by the Canadian Court. Justice Burke dismissed the application on July 25, 2014, and directed that the issue of the recognition of the foreign judgment should be dealt with at trial by the trial judge.
On May 13, 2020, the Canadian Court made the orders as follows:
- a. The Chinese divorce decree is recognized in British Columbia.
- b. The Chinese order respecting spousal support is recognized in British Columbia.
- c. The Chinese orders respecting custody and child support are not recognized in British Columbia. British Columbia is the appropriate forum in which to determine any further issues, including custody and support, respecting the Children.
- d. British Columbia is the appropriate forum in which to consider the claims respecting property situate in British Columbia.
II. Court Views
(1) Divorce Decree
According to the Divorce Act of Canada regarding “Recognition of foreign divorce” under section 22 (1):
A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.
In this case, the parties agreed that the requirements of s. 22 of the Divorce Act are met and the Chinese divorce order should be recognized.
The Canadian Court held that the evidence supports that the respondent husband was ordinarily resident in China for at least one year immediately preceding the commencement of proceedings for the divorce, which would engage s. 22(1).
(2) Child Custody
According to the Family Law Act of Canada(FLA) in regarding to ” Extraprovincial Matters Respecting Parenting Arrangements” under section 76:
(1)On application, a court may make an order that supersedes an extraprovincial order that has been recognized under section 75 [recognition of extraprovincial orders] if satisfied that
(a)the child would suffer serious harm if that child were to
(i)remain with, or be returned to, the child’s guardian, or
(ii)be removed from British Columbia, or
(b)a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of this section applies.
(2)For the purposes of subsection (1) (b), an order may be made only if
(a)the child is habitually resident in British Columbia when an application is filed, or
(b)the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that
(i)the circumstances described in section 74 (2) (b) (i), (ii), (v) and (vi) [determining whether to act under this Part] apply, and
(ii)the child no longer has a real and substantial connection with the place where the extraprovincial order was made.
The Canadian Court held that, Section 76 of the FLA gives this Court jurisdiction to supersede a valid foreign order where there has been a change in circumstances affecting the best interests of the child and child is habitually resident in British Columbia.
Accordingly, the Canadian Court held that it has jurisdiction to make new orders regarding custody under the FLA in this case and refuse to recognize the Chinese orders on custody matters.
(3) Child Support
The Canadian Court found that the Chinese child support order was not a final order for the purposes of recognition in Canadian law, and it declined to recognize it on that basis.
(4) Spousal support
The Canadian court held that, according to the Chinese Marriage Law, property division is the primary means of wealth division between divorcing spouses, and that support is only awarded in certain circumstances where a basic standard of living is not attainable.
According to article 42 of the Chinese Marriage Law, which the experts agree is the closest equivalent to the Canadian notion of spousal support, if one spouse is unable to support himself or herself at the time of the divorce after the jointly held property has been divided, the other spouse must assist them with his or her property.
According to the Divorce Act of Canada According to section 15.2(6) :
Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The Canadian court opined that one of the key issues is: is the Chinese law regarding spousal support so unjust as to offend Canadian sense of justice and basic morality?
The Canadian court concluded that although the bases for awarding spousal support are different in Canadian and Chinese law, the Chinese law is not so contrary to public policy as to offend basic Canadian standards of morality.
III. Our Comments
As many of our CJO readers know, we are keen to observe how foreign court judgments are recognized and enforced, with a focus on civil/commercial judgments (mostly monetary judgments), excluding divorce judgments. We normally do not cover foreign divorce judgments, because the foreign divorce judgments per se are typically enforceable in China, just like in other jurisdictions.
This case discussed in this post is special in the sense that the Chinese divorce judgment only addresses the matter of divorce itself, but also matters including spousal support, child custody and child support. It is so interesting to note that the Canadian court distinguished the spousal support from the others, by recognizing the part on the spousal support while refusing to recognize the part on the rest.
The fact that the Chinese maintenance order was refused recognition on the ground of finality seems to call into question the principle of finality, as the question of finality is generally determined by the law of the country of origin, i.e. Chinese law (rather than the law of the requested country, i.e. Canadian law).
Naturally, one may also wonder whether there would be conflicting judgments on the same matters for one marriage. To address this concern, the Canadian court already provides its answer in the judgment, by recognizing that “[T]here is a high risk of a conflicting decision if the Chinese Judgment is not recognized, particularly with regard to spousal support, since the laws of Canada and British Columbia differ significantly from Chinese law. With respect to child custody and support, the expert evidence supports that the current arrangements between the parties would be grounds on which to seek a revised order from the Chinese courts, so regardless of which jurisdiction proceeds, it would be likely that that aspect of the Chinese Judgment would be modified. There will be no conflicting judgment in respect to the Chinese properties since this Court will not be deciding those issues, nor to the assets in British Columbia since the Chinese courts did not decide those issues”.
Photo by Guillaume Jaillet on Unsplash
Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
