In this case, Mr. and Mrs. Hameed were both Canadian citizens who had been married for over 20 years and had four children together. They separated in 2015 and Mr. Hameed returned to Pakistan, while Mrs. Hameed remained in Canada with the children.
Mrs. Hameed filed for divorce in Ontario, Canada, where the family had lived for many years. However, issues related to international Marriage arose when Mr. Hameed filed for divorce in Pakistan, arguing that the Pakistani court had jurisdiction.
The Ontario Superior Court of Justice ultimately ruled in favor of Mrs. Hameed, holding that Ontario was the proper jurisdiction for the divorce proceedings. The court found that the couple’s habitual residence was in Canada, as they had lived there for many years and had significant ties to the country, including a family home, employment, and social and religious community connections.
The court also considered the potential harm and hardship that would befall Mrs. Hameed and the children if the divorce were to proceed in Pakistan, where women’s rights and protections in family law are more limited than in Canada. The court ordered that the divorce proceedings take place in Ontario, and that Mr. Hameed be served with the necessary documents to participate in the process.
This case helped in providing clarity over the issues of jurisdiction, especially in cases where spouses belong to different nationalities and backgrounds. However, in the present case, both Mr. and Mrs. Hameed were Canadian citizens, and considering that Mr. Hameed decided to return back to Pakistan after the separation, it can be assumed that Mr. Hameed had dual citizenship of Canada and Pakistan, which has been allowed by the laws of both the countries.
The important aspect in the present case mainly related to citizenship and habitual residence of the parties, due to the existence of their children. Divorce is not just limited to the separation of the spouses, but also includes issues related to child custody, which was experienced in the present case as well, considering, since this is an international divorce, the country having the jurisdiction over the matter, would also decide on the matter of child custody.
One of the first considerations taken by the court is where the parties and their children were habitual residents at the time of separation. In the present case, both the spouses and their children were habitual residents of Canada, and not Pakistan. This is especially connected with the fact that both the spouses as well as children have Canadian citizenship, and only Mr. Hameed has Pakistani citizenship additionally. Therefore, in the absence of the divorce proceedings, the spouses and the children would have continued living in Canada and not gone back to Pakistan.
In addition to citizenship and habitual residence of the parties involved, some additional factors that the court has looked at while deciding on the matter and to understand whether they have the requisite jurisdiction or not, is employment, nationality, location of the marriage, ownership of property, location of bank accounts, frequency of visits, and other case specific considerations.
In addition to these requirements, Canadian residents can obtain divorce in a foreign jurisdiction, only in cases where they have lived for at least 1 year before the start of the divorce proceedings. However, in the present case, the parties did not live in Pakistan, and were rather employed in Canada jurisdiction, to which children were habitual residents of.
The jurisdiction of Pakistan only came into picture when Mr. Hameed decided to return back to the country after separation. Therefore, it is not possible to identify Pakistan as the appropriate jurisdiction to take over the divorce proceedings because there is no substantial nexus of the parties with the country, and Pakistan’s jurisdiction is only application for Mr. Hameed and not for his wife and his children.
Additionally, at the time of separation of the parties, both of them lived in Canada only, and all their financial assets and the education of the children, are taking place in Canada itself. Therefore, moving the children from a habitual jurisdiction to another non-habitual jurisdiction is capable of having an impact on the lives of the children, and it would not be in their best interest to move them to another country.
Here, even if the children were not in the picture, considering that the spouses themselves have built a life in Canada and last lived together within the jurisdiction of Canada for a significant period of period, means that they come under the jurisdiction of Canada and not of Pakistan, which Mr. Hameed had incorrectly claimed.