Ontario Divorce Lawyer for Chinese Clients: How I Found a Spouse Who Had Fled Back to China

I am Lawyer Miao He (Miao He / Mia He, LSO #83315K), licensed to practise in both Ontario and China, and I focus on family law litigation. This article is about a case I personally handled—a case that had been stuck for a full two years with another lawyer and could not move forward—and how I brought it back to life.

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I. When the Case Came to Me: A Case That Had Already Been Stuck for Two Years

Before coming to me, this client had already retained another lawyer, a Canadian lawyer.

There was nothing wrong with the filing of the claim. The claim was filed, the Ontario court accepted it, and the proceeding was properly commenced. The problem arose at the next step—service.

When the parties separated, the other spouse took a sum of money from their joint account and then returned to China. After returning to China, he changed his phone number. He also did not return to his hometown to live; instead, he went to another city. To my client, this person had completely disappeared—she could not reach him by any means she could think of.

And so the case simply stopped there. For two years, nothing happened.

It was not because the court would not hear the case, nor because the client’s claim lacked merit. It was because the documents could not be served on the other spouse. The previous lawyer was not unprofessional; rather, he did not have experience with the realities of China—what could and could not be done there—and therefore could not find a way out.

This is the first thing I want to point out: in cross-border cases, what often causes a case to become stuck is not the law, but the extent of one’s understanding of the other country’s circumstances. If a file has sat still for years, see also When a Family Law Case Stalls in Ontario.

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II. Jurisdiction Was Not the Problem; Service Was

Many clients initially worry: “He is in China. Does the Canadian court still have jurisdiction over him?”

Yes.

The jurisdictional rule under Canada’s Divorce Act is clear: as long as either spouse has been ordinarily resident in the province for at least one year immediately before commencing the proceeding, the province’s superior court has jurisdiction to hear the divorce proceeding. Which country the other spouse lives in is a separate issue from whether the court has jurisdiction.

Therefore, in these cases, the first question is never “Can I get divorced in Canada?” but rather—

Can the documents be legally served on him?

Ontario’s Family Law Rules contain specific requirements for service. Once a proceeding has been commenced, the originating documents must be served on the other party in accordance with the Rules. Until valid service has been completed, the proceeding cannot move forward procedurally. This leads to the next question, which many people do not expect.

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III. “He Is Ignoring Me. Won’t the Court Just Rule in My Favour?” — No

This is one of the most common misconceptions I want to correct.

If the other party does not file a defence or attend court, the court can indeed treat the matter as proceeding in default and allow the case to continue in his absence. But the prerequisite is that he has been properly served.

The legal logic is this: a default judgment is intended to address a person who “knew about the proceeding but chose not to participate,” not someone who “never received notice in the first place.” If service itself has not been completed, the court will not simply grant you a judgment because the other party is silent—because such a judgment would be unsafe and could be set aside. How default actually works is explained in What Happens If Your Spouse Doesn’t Respond to Your Ontario Divorce Application?.

Therefore, when I took over this case, its position was: the claim had been properly commenced, there was no jurisdictional problem, and the other spouse had completely stopped responding, but because he could not be served, nothing could be obtained.

That is why the case could remain stuck for two years.

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IV. Why Service in China Had to Proceed Through the Hague Service Convention

China is a contracting state to the Hague Service Convention. This is very important because it brings both good news and bad news.

The good news is that there is a formal, lawful channel of service that is recognized by the Ontario court. Once service is completed through this channel, the court will recognize the service, and the proceeding can move forward normally.

The bad news is that this is the only route.

China has objected to Article 10 of the Convention. This means that within China:

• Service by mail is ineffective—you cannot simply mail the documents to the person’s address and consider them served.
• Service by a private process server is ineffective—you cannot hire someone to go to the person’s door and deliver the documents.
• Direct service through judicial assistance personnel is also not available.

The only valid route is transmission through China’s designated Central Authority (the Ministry of Justice), with service actually carried out by a Chinese court, followed by the issuance of a certificate of service.

This route is slow. In the case I handled, it took six months from submission until the Chinese court issued the certificate of service. And that was already considered relatively smooth for a case of this type.

One point worth clarifying because it is easy to confuse the two: China is a contracting state to the Hague Service Convention, but it is not a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction (which applies to Hong Kong and Macao). Service can proceed under the Service Convention, but if a child has been taken to mainland China, the Convention’s return mechanism cannot be used. These are two different conventions, and the conclusions are exactly opposite. Do not confuse them. If a child has been taken to China, see My Child Has Been Taken to China: What Can I Do?.

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V. The Real Trap: The Threshold for Trying to Avoid Hague Service Is Extremely High

At this point, many people—including many lawyers—will think of the same solution:

Since we cannot find the person, why not ask the court to exempt us from Hague service, or apply for substituted service, such as service by advertisement or service through a known email address or WeChat?

The approach itself exists, but the threshold is extremely high. And this was precisely where the previous lawyer’s case had become stuck for two years.

Article 1(2) of the Hague Service Convention provides that where the address of the person to be served is not known, the Convention shall not apply. On the surface, this appears to provide an escape route: “I do not know where he is, so the Convention does not apply. I can use another method.”

But the real difficulty is this: you have to prove to the Ontario court that the address is unknown.

The court is not simply looking at whether “I cannot reach him.” It wants to know what you actually did to find him: what avenues you tried, why each one failed, whether you retained professionals to conduct a search, and whether you made inquiries with his relatives, employer, or the location of his former residence. Ontario has numerous cases dealing with this issue, and the courts have consistently taken a cautious approach—because once substituted service is permitted, the practical effect is to allow litigation against the other party to proceed when that party may have no knowledge of the proceeding at all.

There is also a practical risk here: even if you manage to obtain an order for substituted service and obtain a judgment, the other party may later appear and claim that he never received notice. The judgment could still be set aside. Years of litigation could potentially be reduced to nothing overnight.

Therefore, when I took over the case, my first assessment was that this was not the route we should take.

Not because it was legally unavailable, but because in this particular case, the cost-benefit ratio was too poor and the result would not be reliable. Two years had already been spent going down this path. Continuing would simply lead to the same dead end.

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VI. The First Thing I Did: Instead of Proving We “Could Not Find Him,” I Went and Found Him

What I said to the client, in substance, was: rather than spending two years proving to the court that we could not find him, let’s find him.

This was the most direct way in which my dual-practice background in Canada and China made a difference in this case.

Canada has very strict protections for individual privacy, and much information cannot be obtained here. China’s system is different. In China, there are certain lawful avenues and methods through which a specific individual can be located.

These methods are not things you can simply find by searching records, nor are they something you will know merely by reading the laws of both jurisdictions once. They require someone who has actually handled cases in China and understands how things work there in practice.

That is the significance of being licensed to practise law in both countries and having actual practice experience on both sides. I understand the procedure on the Ontario side, and I also understand what can be done on the China side, how it should be done, and whom to approach. These two pieces of knowledge have to exist in the same person’s mind for the connection between the two jurisdictions to work.

I told the client that there were certain avenues through which we could locate the other spouse in China. And we did exactly that.

The result was that we obtained his current workplace address, his current residential address, and his telephone number.

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VII. The Second Thing I Did: Nothing

Once we had these three pieces of information, the easiest mistake to make would have been to immediately contact him.

We did not contact him. Not a single word.

The reason was simple: once he knew that we had found him, he could immediately change his phone number again and move to another city. Then all the work we had done would be completely wasted, and finding him a second time would be much more difficult than the first—because by then, he would know that someone was looking for him.

Therefore, we used this information exactly as it was in the next step: Hague Service.

Six months later, the Chinese court issued a certificate of service to us—the documents had been personally served on the other spouse.

At that moment, the case that had been stuck for two years came back to life.

The Ontario proceeding could now proceed normally, with scheduling and court appearances moving forward.

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VIII. Once Service Was Completed, the Positions Immediately Reversed

What happened next confirmed my initial assessment.

First, the property.

Although the other spouse had taken money from the joint account and fled, he still had other property in Canada in his name.

In Ontario, these assets fell within the property that needed to be taken into account in the division of matrimonial property. He could leave, but the property could not.

We therefore commenced the necessary litigation and argued that my client should be entitled to obtain these assets. Transferred joint-account funds also raise dissipation and disclosure issues; see What Happens If Your Spouse Wastes or Hides Assets During a Divorce? and Will My Property in China Be Divided in an Ontario Divorce?.

Then came the other spouse’s response.

Once the case could proceed normally in court, he panicked. He retained an Ontario lawyer to participate in the litigation.

And once he entered the litigation process, every subsequent step was in our favour.

Because his previous conduct was already there: taking money from the joint account, returning to China, changing his contact information, changing his city of residence, and failing to respond for a prolonged period.

These facts formed a complete chain, and it was a chain of events that he himself had created. He could not explain it away.

Ultimately, the court’s treatment of the matter was as follows:

• The court found that the other spouse had acted in bad faith and had delayed the proceeding;
• The court granted our motion;
• My client was permitted to deal with property in Canada independently, without requiring the other spouse’s signature or cooperation;
• My client was permitted to withdraw part of the proceeds from the disposition for her use before the matrimonial property had been finally divided;
• The other spouse was ordered to pay our legal costs.

Ontario’s Family Law Act gives the court room to make adjustments in the division of property. If one spouse has recklessly depleted matrimonial property, the court may decline to divide the property equally. The Family Law Rules also have a cost structure that generally favours the successful party, and where one party’s conduct amounts to bad faith, the court may order that party to pay full costs.

In this case, once the service issue was resolved, we remained in the advantageous position throughout and continued to be the successful party.

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IX. Three Things I Want You to Remember from This Case

First, the real threshold in a cross-border case is not the law, but understanding the other side.

The previous lawyer had no problem with the commencement of the proceeding. The reason the case became stuck was that he did not know what could be done in China.

It was the same case, under the same Ontario laws. But once it was handled by someone who understood how things worked in China, the two-year deadlock was opened up within just over six months.

Second, do not rush into the “prove that you cannot find the person” route.

The threshold for substituted service is high, the process is lengthy, and the result is not necessarily reliable.

Before making an application, ask yourself one serious question:

Can we really not find this person? Or have we simply not used the right methods?

The answers to those two questions could mean a difference of two years.

Third, once you find the person, stay calm.

The moment you obtain the address, the thing you will most want to do is contact the other person, confront him, and force him to respond.

But doing that means voluntarily giving away your advantage.

Once you obtain the information, use it immediately for the procedural steps—not for your emotions.

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X. Frequently Asked Questions

Q: My spouse has returned to China. Can I still commence a divorce proceeding in Canada?

A: Yes. As long as you have been ordinarily resident in Ontario for at least one year, the Ontario court has jurisdiction, regardless of which country the other spouse is in. The real difficulty is service, not jurisdiction.

Q: He ignores me and refuses to participate in the proceeding. Will the court simply rule in my favour?

A: No—unless he has already been properly served. A default judgment requires the other party to have knowledge of the proceeding but choose not to participate. If service has not been completed, you cannot even obtain a default judgment, and the case will remain stuck there.

Q: Can I simply mail the documents to his address in China?

A: No. China is a contracting state to the Hague Service Convention and has objected to Article 10. Service by mail and private service do not have legal effect in China. The only valid route is transmission through the Central Authority and service carried out by a Chinese court.

Q: How long does Hague Service take?

A: The case I handled took six months, and that was already considered relatively smooth for a case of this type. You need to be prepared for this and start the process as early as possible. Waiting until the last minute to start looking for a solution makes the time cost the most expensive.

Q: If I genuinely cannot find his address, can I ask the court to exempt me from service?

A: In theory, you can pursue substituted service, but the threshold is very high. The court is not looking simply at whether “I cannot reach him.” It wants to know what specific efforts you made to find him and why each one failed.

And even if you obtain the order, there is still a risk that the other party may later claim that he never received notice, and the judgment could still be set aside.

Before taking this route, carefully assess whether the person truly cannot be found.

Q: He is in China. How could I possibly find him?

A: This is precisely where my dual-practice background in Canada and China is most directly useful.

Canada has strict protections for individual privacy, and much information cannot be obtained here. China’s system is different. There are certain lawful avenues through which a specific person can be located.

This type of assessment depends on practical experience from actually handling cases in China. It is not something that can be learned simply by reading the legislation.

What I want to tell you is this: the conclusion that someone is “completely impossible to find” is often reached too early.

Q: After finding him, can I contact him first and try to negotiate?

A: I strongly advise against it.

Once he knows that he has been found, he may immediately change his phone number and move. Finding him a second time will then be much more difficult.

Once you obtain the information, it should be used directly for the service process. Do not alert the other party.

Q: He took the money from our joint account. Can I still recover it?

A: He may have left, but the property he has in Canada has not. These assets must be taken into account in the division of matrimonial property.

In addition, his transfer of funds, disappearance, and delay will all become factors that may work against him in the division of property and the allocation of costs.

In my case, the court ultimately found that he had acted in bad faith and ordered him to pay our legal fees.

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The case described in this article is a general description of a concluded case. Identifying information concerning the client, court, and specific dates has been omitted.

The outcome of every family law case depends on its specific facts and evidence. This article does not constitute a promise or guarantee of any particular outcome, nor does it constitute legal advice. If you require advice regarding your own circumstances, please consult a lawyer separately.