My Divorce in China Isn't Finished Yet — Can I Sue in Ontario at the Same Time to Divide Our Canadian Property? Chinese-Speaking Toronto Divorce Lawyer Miao He

Yes, you can sue. Filing in Ontario is your right, and the court will accept the case. But accepting it is not the same as hearing it: while the Chinese divorce proceedings are still under way, the Ontario court will stay — pause — the case here and wait for the Chinese judgment. The same property will not be divided in two countries at the same time.

A client came to consult me. Her divorce case in China had been going on for some time and still hadn’t been decided. The couple also had property in Canada — real estate and bank accounts. She asked: instead of waiting for China to finish, can I sue in Ontario now and divide the Canadian property first?

The short answer: you can sue, but Ontario will put the case on hold until China has decided.

1. The Court Seized First Hears the Case; the Later Case Is Stayed

Ontario deals with two proceedings running at once on a clear principle: the court that took the case first hears it; the court that took it later stays — pauses — its case and waits for the first court’s result. Canada’s Divorce Act states this rule expressly for conflicts between courts: where the same spouses have divorce proceedings pending in two courts, commenced on different days, the court in which the proceeding was commenced first has exclusive jurisdiction, and the second proceeding is deemed to be discontinued. For a foreign court such as China’s, Ontario applies the same principle by way of a stay — China was seized first and is hearing the case first, so it is the Ontario case that gets paused. The underlying reason is simple: the same matter can’t be decided by two courts at once. Different laws and different standards would too easily produce two conflicting judgments, and that is exactly what the courts are avoiding.

2. A Stay Is Not a Wasted Filing

The case remains on file in Ontario; it has not been dismissed. When the Chinese judgment comes out, if it didn’t deal with the Canadian property — the division is incomplete — you can apply to lift the stay and carry on in Ontario with the Canadian portion, because that property is in Ontario and the Ontario court can deal with it. That is why filing now still makes sense: your case is in place, waiting.

3. After China Decides, There Is One More Route: Not Recognizing the Judgment

If the Chinese judgment has come out and you don’t accept it, you can ask the Ontario court not to recognize the foreign judgment. But the bar for that is high: you must put forward proper grounds and evidence for why the Chinese judgment should not be recognized. “I lost, and I think it was unfair” is not enough.

So the sequence is this: let the Chinese case finish first; file in Ontario and let the case sit stayed. When the judgment arrives, look at whether the Canadian property was dealt with. What wasn’t divided gets finished in Ontario; a judgment you say shouldn’t be recognized goes through the non-recognition route. What you can’t have is both countries moving at the same time — the same property will not be divided twice, in two countries, at once.

FAQs

1. If the Ontario case is stayed, was my filing wasted?

No. A stay is a pause, not a dismissal. The case remains on file, and once the Chinese judgment is out, if the Canadian property hasn’t been fully divided, you can apply to lift the stay and continue in Ontario.

2. Will the Chinese court divide the Canadian property as well?

Money in bank accounts, yes — the Chinese court can work it into the overall calculation as a figure. Canadian real estate, no: its value can’t reliably be established there, no order for its sale can be made, and no judgment can be enforced against it in Canada. In most cases, the Canadian real estate is left for Ontario to deal with.

3. If I think the Chinese judgment is unfair, can I simply refuse to recognize it?

Not simply. Non-recognition of a foreign judgment has a high bar: you need proper grounds and evidence — for example, a serious problem with how the proceeding was conducted, or with how the judgment was obtained. An unfavourable result alone is not enough.

This article is general legal information, not legal advice, and does not create a lawyer-client relationship.