Introduction
Foreign property issues arise frequently in Ontario family law, but the legal framework is often misunderstood. The first thing to know is that Ontario courts cannot make an order determining title, interest, or right to a foreign property[1].
In Personam Jurisdiction
However, Ontario courts can exercise their in personam jurisdiction with respect to foreign property. In Catania, the Ontario Court of Appeal lists four requirements that must be satisfied before the court can exercise its in personam jurisdiction:
- The court must have in personam jurisdiction over the defendant;
- There must be a personal obligation running between the parties;
- The jurisdiction cannot be exercised if the local court cannot supervise the execution of the order; and
- The court will not exercise jurisdiction if the order would be of no effect in the foreign location where the property is situated.[2]
Practical Tips
Here are some practical tips when dealing with claims related to foreign properties in a family law proceeding.
Ensure that all factors of Catania are satisfied
The first two requirements are generally easy to satisfy. The first requirement can be fulfilled if the Applicant can serve the Respondent with the originating process, or the Respondent attorns to the jurisdiction of the court. Personal obligations can include support obligations and equalization. For example, In Jung, Justice Mackinnon stated at paragraph 15 the following:
An application for child support is an action in personam: see e.g. Prichici v. Prichici (2005), 2005 CanLII 16626 (ON SC), 14 R.F.L. (6th) 425 (Ont. S.C.), at para. 27; Kasprzyk v. Burks (2005), 2005 CanLII 2062 (ON SC), 15 R.F.L. (6th) 221 (Ont. S.C.), at para. 12; Montrichard v. Mangoni, 2010 ONCJ 252, at para. 45. Canadian courts have also held that a support obligation meets the second requirement: see e.g. Welsh v. Welsh, 2011 ABQB 686, at paras. 20-22.[3]
Why Most Cases Fail: The Problem with Criteria 3 and 4
Cases typically fail because of requirements three and four of the list. From the case law, most often than not, a judge does not have evidence that the local court can supervise the execution of the order and that the order would have an effect in the foreign location where the property is situated. Reliance of the Ontario court’s power of contempt or rule 1(8) of the Family Law Rules is not sufficient.[4] Therefore, criteria 3 and 4 are not met. Cases where criteria three and/or four were not met are as follows:
- Gargarella: Justice Tobin declined to order that the Respondent take steps to sell the parties’ jointly owned property in Scottsdale, Arizona because there was “nothing in the evidence to indicate that this court could supervise the execution of a judgment for sale of property in Arizona.”[5] Justice Tobin found that the Ontario court’s power of contempt or rule 1(8) of the Family Law Rules would not be enough to supervise the order, despite some cases determining otherwise.[6] However, His Honour left the door open for others to explore creative arguments as he stated that “the scope of the courts’ power over foreign immovables and the possible orders in matrimonial property proceedings had not been fully considered under the Family Law Act, S.O. 1990, c. F.3 (the “FLA”)”.[7]
- Jung: Justice MacKinnon refused to order the sale of the Quebec property because the third criteria could not be satisfied. The finding of contempt did not result in the ability to supervise the execution of the order.[8]
- Cork: The Ontario court could not exercise in personam jurisdiction compelling a transfer of title to Quebec property.[9] The dispute involved a Quebec cottage registered in the wife’s name. Although the husband claimed beneficial ownership and had already commenced proceedings in Quebec, he asked the Ontario court to pause equalization until that issue was resolved. Justice Warkentin found that the wife had been unjustly enriched and that the elements for unjust enrichment were met.[10] The issue was the appropriate remedy. Justice Warkentin concluded that a monetary award would not adequately address the husband’s claim and that a proprietary remedy was more suitable. However, Justice Warkentin explained that Ontario could not “supervise the execution” of any judgment requiring the wife to transfer an interest in the Quebec cottage, failing the third requirement in Catania, and questioned whether an Ontario order would have any effect in Quebec, though no evidence was provided on that point.11]
- Aning: Justice Pardu determined at paragraphs 23 to 24 that the plaintiff could not satisfy the third and fourth requirements after applying the test from Catania.[12] While the defendant was served in Ontario with the statement of claim, provided a statement of defence, and was required to pay equalization to his wife, the court could not, however, supervise the execution of a judgment for sale in Ghana and the court would not be effective in Ghana.[13] Therefore, the wife’s request for an order for sale of the property owned by the husband in Ghana to fulfill his equalization payment was dismissed.[14]
When the Catania Test Is Met: Rare Success Case
One case where all four Catania criteria was met was Knight.[15]Justice Jarvis found that the wife needed to pay the husband an equalization payment from her share of her interests in the Jamaican properties and set a deadline for the parties to resolve between themselves the sale of, or transfer of title to, any or more of the properties located in Jamaica.[16] If the parties were unable to resolve the issue of the Jamaican properties between themselves by that deadline, they were required to sell the Jamaican properties, and the wife would have to pay equalization from her share of those properties.[17] Justice Jarvis held that the four requirements were met because the parties were Canadian citizens and spouses; there was no indication that Jamaica, which is recognized by the Court as a common law jurisdiction, would be unable to oversee the Order; and there was a sound basis to expect that Jamaica, as the lex situs, would give effect to the Judgment once it was registered in accordance with its foreign-judgment reciprocity rules.[18]
Given the case law above, you should advise your client to consult a lawyer who practices in the foreign jurisdiction in which the property is located to determine whether the Ontario Order would have an effect there, especially if there are no reciprocity rules and if it is not a common law jurisdiction. Further, you would need to consider how an Ontario court would be able to supervise the Order. If these two criteria cannot be met, then your client may want to consider dealing with the foreign property in the foreign jurisdiction.
Domestic Contracts and its impact on Jurisdiction
If there is a marriage contract/cohabitation agreement, then the Ontario Court may have jurisdiction to deal with the foreign property depending on the relief sought, as seen from Rees v Shannon.[19] The Applicant sought to have the claim relating to the condominium located in Florida dismissed and argued that an Ontario court could not deal with a dispute involving foreign property. The Respondent alleged that the issue was about interpreting the parties’ marriage contract, which governed how their property was to be handled on separation, which would be within Ontario’s jurisdiction.
To determine whether it could hear the matter, the court turned to the jurisdictional framework set out in Club Resorts Ltd. v Van Breda, 2012 SCC 17.[20] That decision identified factors that can establish a real and substantial connection between the dispute and Ontario.
Justice Akbarali in Rees held that, in family law matters, the parties’ ordinary residence at the time of separation is one such connecting factor and accepted that the marriage contract, which was negotiated and governed by Ontario law, created another strong link to the province.[21] Justice Akbarali concluded that the jurisdictional analysis was not limited to Catania and that the Van Breda framework also applied.[22] Even applying the Catania factors alone, Justice Akbarali found that Ontario was the proper forum to exercise in personam jurisdiction.[23] Both parties lived in Ontario, and their domestic contract imposed personal obligations that the court could enforce. Importantly, the court was not being asked to determine ownership of the Florida condominium; rather, it was being asked to interpret the contract to decide whether the respondent had a contractual entitlement to certain assets, including that property. Any resulting monetary award could be enforced in Ontario, and the evidence suggested that a Florida court would likely recognize and enforce an Ontario judgment.[24] Therefore, Justice Akbarali held that Ontario did have jurisdiction to resolve the dispute.[25]
Trust Claims and Foreign Property
Even if one spouse holds title to a foreign property, the Ontario courts can still address situations where the other spouse has a beneficial interest in that property. In Chen, Justice Gilmore determined the husband had a beneficial interest in the condo in Taiwan.[26] He provided evidence of his contribution to the deposit and down payment as well as a reasonable explanation as to why the condo was only in his wife’s name.[27] Therefore, Justice Gilmore ordered the wife to either pay the husband one half of the value of the condo in Taiwan less the value of the mortgage and reasonable and valid disposition costs, from her share of the net proceeds of sale of a jointly owned property in Ontario, or the wife could sell the condo in Taiwan and pay the husband his share of the condo in Taiwan from the net proceeds of sale.[28] Justice Gilmore held that in the event option b was chosen, the wife would have to provide the husband all information and documentation with respect to the sale and if there were issues with the sale process it would be addressed via a 14B motion to Justice Gilmore.[29] Further, an agreed upon sum would be held back from the wife’s share of the net proceeds of sale of the jointly owned property in Ontario until the parties agreed on how to deal with the condo in Taiwan.[30]
In Chen v Lin, the Catania criteria were not referenced. There is also a question as to how this Order can be enforced in Taiwan. It appears that in this case, holding back some amount from the wife’s share of the net proceeds of sale of a jointly owned property in Ontario, along with allowing either party to bring a 14B motion to address sale issues for the condo in Taipei, would be sufficient for this court to somehow supervise this Order or ensure the wife complied with the Order.
In some cases, a monetary award is the more appropriate remedy for unjust enrichment, since the court cannot transfer title to foreign property but can order one party to pay compensation.
A final consideration to make with respect to trust claims and foreign properties is whether the benefits of arguing these claims outweigh the costs. The value of the foreign property is important. If equalization can account for the financial or non-financial contributions your client made to the property, it may be simplest to resolve the issue that way.
Conclusion
In most cases, Ontario courts are limited in what can be ordered with respect to foreign property. Counsel must focus on satisfying the Catania criteria or pursue alternative remedies such as monetary awards and domestic contract interpretation. Early consultation with foreign counsel can be essential.
[1] Tezcan v Tezcan, 1987 CanLII 157 (BC CA), [1987] 11 RFL (3d) 113 (BCAA); Macedo v Macedo 1996 CanLII 19734 (ON CTGD), [1996] 19 RFL, 4th 65 (ONSC).
[2] Catania v Giannattasio, (1999), 174 DLR (4th) 170 (CA) [Catania].
[3] Jung v Jung, 2016 ONSC 3020 [Jung].
[4] Family Law Rules, O Reg 114/99, r 1(8) [Family Law Rules].
[5] Gargarella v Hrga, 2025 ONSC 3934 at para 24 [Gargarella].
[6] Ibid at para 20.
[7] Ibid at para 25.
[8] Jung at para 25.
[9] Cork v Cork, 2014 ONSC 2488 [Cork].
[10] Ibid at para 79.
[11] Ibid at para 86.
[12] Aning v Aning, (2002), 30 RFL (5th) 237 (ONSC) at paras 22 - 23 [Aning].
[13] Ibid at para 23.
[14] Ibid at para 24.
[15] Knight v Knight, 2018 ONSC 4027.
[16] Ibid at para 78.
[17] Ibid.
[18] Ibid at para 75.
[19] Rees v Shannon, 2020 ONSC 3633.
[20] Ibid at para 36.
[21] Ibid at para 40.
[22] Ibid at para 44.
[23] Ibid at paras 45 to 51.
[24] Ibid at para 50.
[25] Ibid at para 51.
[26] Chen v Lin, 2017 ONSC 7297 [Chen].
[27] Ibid at para 57.
[28] Ibid at paras 123 to 127.
[29] Ibid at para 127.
[30] Ibid at para 128.
