Estate litigation sometimes tests jurisdictional limits of Ontario courts, especially when foreign real property is involved. Ontario courts are at times asked to make rulings over real property located in foreign jurisdictions. Can Ontario courts enforce judgements over foreign real property?
Jurisdiction of Ontario Courts to Enforce Rulings over Foreign Real Property
Ontario courts broadly lack the jurisdiction to enforce judgements respecting foreign real property. Ontario courts are generally loath to render orders which cannot or are unlikely to be enforced. It is a relevant consideration for the courts whether there is a reasonable prospect that their order will be enforced in the foreign jurisdiction (Rees v. Shannon, 2020 ONSC 3633, at para 50). Courts seek a reasonable and available remedy that fits within their existing jurisdiction.
In Personam Jurisdiction
In personam jurisdiction refers to the court’s power over the parties themselves, rather than any foreign property in question. Ontario courts may lack the jurisdiction to issue or enforce orders with respect to any given real property in foreign jurisdictions. As explained in Catania v. Giannattasio, 1999 CanLII 1930 (ON CA), Canadian courts may enforce rights affecting foreign land if those rights are based on contract, trust, or equity, and the defendant resides in Canada. In such cases, the court is enforcing a personal obligation between the parties, not directly adjudicating property rights in another country.
Prerequisites for In Personam Jurisdiction
The courts have identified four prerequisites for exercising in personam jurisdiction over foreign assets (see Rees v. Shannon):
- Jurisdiction over the Defendant: The court must have personal jurisdiction over the litigant.
- Personal Obligation: There must be a personal obligation running between the parties.
- Supervision of Judgment: The local court must be able to supervise the execution of its judgment.
- Effectiveness of Order: The order must have a reasonable prospect of being effective in the foreign jurisdiction.
Recent Case Law in Action
- In Knight v. Knight, 2018 ONSC 4027, the Ontario court exercised in personam jurisdiction regarding real property in Jamaica, finding all prerequisites satisfied because both parties were Canadian citizens and Jamaica was likely to enforce the judgment.
- In Chen v Lin, 2017 ONSC 7297, the court addressed interests in a Taiwanese condominium, demonstrating that civil law jurisdictions are not necessarily a barrier, though local property issues may still need to be resolved locally.
Practical Considerations
Ontario courts are cautious about issuing orders that are unlikely to be enforced in the foreign jurisdiction. The preferred remedy is often to credit the value of the foreign property against property or funds in Ontario, rather than making orders directly affecting foreign assets.
Conclusion
For estate litigators and their clients, understanding in personam jurisdiction may be crucial when foreign real property is involved. While Ontario courts generally cannot directly exercise jurisdiction foreign real property, they can exercise jurisdiction over the parties themselves, provided the necessary conditions are satisfied.