Can Canadian Courts Really Make Americans Pay Spousal Support for Mere Cohabitation?

By Jacob Simon

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”

Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945).

INTRODUCTION

From one side of the Detroit river to the other, the laws governing spousal support differ substantially. The State of Michigan, like most states, focus on the needs[1] of the payee rather than the increased earning capacity[2] of the payor during the relationship.[3] But the sharpest contrast between Canadian[4] and Michigan spousal support jurisprudence is the ability of un-wed cohabitants to make claims.[5] While some states, like California, have recognized “palimony,”[6] and eight states still allow common law marriage,[7] no jurisdiction in the United States allows spousal support[8] for un-wed cohabitants. Michigan has made it clear that it will not recognize common law marriage, nor make palimony awards.[9] But what if an American is dating a Canadian? Couldn’t the Canadian utilize Canadian courts to obtain an alimony award in a cohabitating relationship? 

A HYPOTHETICAL

It isn’t too difficult for a metro Detroiter to imagine a cohabitating couple where one party holds American citizenship and the other holds Canadian. Not only is the boarder friendly—minus that old curmudgeon Matty Maroon[10]—but many people commute across the border for work or education.

For example, imagine a Canadian citizen and an American citizen meet in law school.[11] Somewhere in between the whirlwind of immersion week and graduation day they fall in love and move in together. Then, in the years after law school their incomes differ greatly. For purely hypothetical purposes, let’s say the American citizen obtains employment at one of Detroit’s most lucrative firms, and the Canadian decides to dedicate his or her career to serving the indigent community at a legal aid clinic. Throughout their relationship they live together in the American citizen’s home in Michigan, but the Canadian citizen maintains Canadian citizenship and is still considered a resident in the province of Ontario where his or her family lives. Then, after 10-years of cohabitating, they break up. Assuming the disparity in income exists to warrant a spousal support award pursuant to the Canadian statute to the Canadian citizen, would the Canadian court order the American citizen to pay?  

THE SURPRISING RESULT

Probably yes. While a Michigan court would have dismissed the action for the lack of a marriage,[12] a Canadian court would treat the 10-year relationship the same for the purposes of establishing a spousal support award. Although Canadian spousal support jurisprudence is foreign to Americans, the fact that the couple is regularly living and working only in Michigan, could still subject the couple to the significantly different spousal support laws of Canada.  Despite how strange it might seem to be sued in a country the American citizen fails to have minimum contacts with, it appears to be reality.

EXPLANATION

Pursuant to R.S.C. 1985, c. 3 (2nd Supp.), a Canadian Court will have jurisdiction over a corollary relief[13] action as long as one of the parties is a resident of the province of the Court for an entire year before filing.[14]

Additionally, Canada has taken steps to interpret personal jurisdiction more favorably for protecting the interests of their own citizens. In Lalany v. Muir, 2007 Can LII 50280 (ON S.C.) (Nov. 7, 2007), an Ontario resident was involved in a car accident in Michigan with a Michigan resident. The Michigan defendant had no connection whatsoever to Ontario, other than the fact she was involved in the car accident "in her own neighborhood" with a resident of Ontario. The court held, however, that because all the other parties were Ontario residents and the rest of the case was clearly rooted in Ontario, the claim against the Michigan defendant had a "real and substantial connection" to Ontario. As such, even though the Michigan defendant had no connection to Ontario and trying the case in Ontario would be a great inconvenience to her, the court held it had personal jurisdiction over the Michigan defendant.

Canadian Courts are willing to relinquish jurisdiction of a divorce case to a foreign jurisdiction when that foreign jurisdiction is “clearly” or “distinctly” a more appropriate forum.[15] However, that argument will probably not prevent this hypothetical situation from being litigated in Canada. The foreign jurisdiction, Michigan, will not recognize the cohabitation relationship for the purpose of awarding spousal support for lack of subject matter jurisdiction, but because Canada will have subject matter jurisdiction, it will likely keep the case within its borders.

CONCLUSION

While Canada’s plaintiff-friendly interpretation of personal jurisdiction might be helpful for allowing Canadian citizens to bring actions against foreign parties in Canada, it could possibly result in unseemly forum shopping and the imposition of strange foreign laws when a couple breaks up.

[1] See, Zecchin v. Zeechin, 386 N.W.2d 336 (1986).

[2] This concept is usually referred to as “gains theory.” Cynthia Lee Starnes, Alimony Theory, 45 Fam. L.Q. 271, 272 (2011).

[3] Canadian spousal support jurisprudence focuses on gains theory. See e.g., Divorce Act, R.S.C. 1985, c. 3 (2nd supp.) s. 15.2; Miglin v. Miglin, [2003] 1 R.S.C. 303.

[4] In Canada, divorce law is pursuant to federal statute, as opposed to the United States where it is pursuant to state statute.

[5] Divorce Act, R.S.C. 1985, c. 3 (2nd supp.) s. 15.2

[6] See generally, Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106 (1976).

[7] According to the National Conference of State Legislatures, those states are: Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. http://www.ncsl.org/research/human-services/common-law-marriage.aspx

[8] Many states still refer to spousal support as alimony.

[9] See e.g., Featherston v. Steinhoff, 226 Mich. App. 584 N.W.2d 6 (1998); Cames v. Sheldon, 109 Mich. App. 204, 311, N.W.2d 747 (1981).

[10]http://www.forbes.com/forbes/welcome/?toURL=http://www.forbes.com/sites/joannmuller/2012/01/12/billionaire-bridge-owners-greed-lands-him-in-jail/&refURL=&referrer=

[11] After all, Detroit Mercy Law School, and The Michigan State University College of Law both offer dual J.D. programs with accredited Canadian law schools.

[12] Dismissed for lack of subject matter jurisdiction.

[13] A corollary relief proceeding is a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a custody order. http://www.familylawhelp.ca/glossary/corollary-relief/

[14] R.S.C. 1985, c. 3 (2nd Supp.) 4(1)(a).

[15] Kornberg v Kornberg, [1990] M.J. No. 659, 30 R.F.L. (3d) 238 (Man. C.A.).