Should Standing Follow the Applicable Law or the Law of the Forum? – EAPIL
In a decision of 14 July, the Swedish Supreme Court clarified whether standing to initiate maintenance proceedings is governed by the law applicable to the maintenance obligation under the Hague Protocol of 2007 on the Law Applicable to Maintenance Obligations or by the law of the forum under the principle of lex for regit processum. The Court held that standing to sue falls within the scope of the applicable law. As Canadian law applied and did not allow the former spouse to bring the claim in the circumstances, the Court dismissed the proceedings as inadmissible.
Background
Two Danish nationals, formerly married, had their last common habitual residence in Canada. One of them continued to reside in Ontario, Canada, while the other moved to Sweden.
In 2021, a Swedish court granted the couple a divorce. The former spouse residing in Canada also applied for maintenance. In a partial judgment on the law applicable to that claim, the Swedish court held that Canadian law applied under Article 3 of the 2007 Hague Protocol.
The former spouse residing in Sweden asked for the maintenance claim to be declared inadmissible. He argued that, under Canadian law, a former spouse cannot bring a maintenance claim after a divorce judgment has been issued in a country other than Canada.
Both the court of first instance and the court of appeal rejected the argument of the spouse residing in Sweden, holding that such a procedural question is not part of the applicable law. That question, concerning the scope of the applicable law, was appealed to the Supreme Court.
The Supreme Court’s Decision
In its judgment, the Supreme Court observed that it is an internationally recognised principle that procedural issues are governed by the law of the forum (lex fori regit processum). However, the characterisation of a matter as procedural for private international law purposes is narrower than in purely domestic cases. The Supreme Court therefore continued that matters concerning formalities should primarily be characterised as procedural for private international law purposes.
Where conflict-of-law rules derive from EU instruments, the distinction between substantive and procedural matters must be made autonomously, rather than by reference to national procedural law. In this case, the relevant conflict-of-law rules were contained in the 2007 Hague Protocol, which is referred to in Article 15 of the EU Maintenance Regulation.
Article 11 of the Protocol contains a non-exhaustive list of matters governed by the law applicable to the maintenance obligation. Article 11(d) provides that the applicable law determines “who may institute maintenance proceedings, except for issues of procedural capacity and representation in the proceedings”.
The Supreme Court concluded that Article 11(d) covers the question of standing to sue, but excludes issues of procedural capacity and legal representation. As the issue in the case was one of standing, Canadian law should apply to it.
Based on the evidence presented on the content of Canadian law, the Supreme Court determined that spousal support is regulated at both federal and provincial level in Canada. Under the Divorce Act, a court may issue a spousal support order in corollary relief proceedings. However, where a divorce has been granted abroad, a former spouse cannot initiate such proceedings, and a Canadian court therefore lacks jurisdiction to decide the question of maintenance. Under the Family Law Act of Ontario, divorced spouses do not have standing to bring a claim for spousal support.
Applying Canadian law, the Supreme Court declared the maintenance claim inadmissible. The Court reasoned that this corresponded to the way in which the matter would have been dealt with by a Canadian court.
It was also argued that the Supreme Court should request a preliminary ruling from the Court of Justice of the European Union. The Supreme Court declined to do so, holding that the correct interpretation of EU law was clear.
Commentary
The judgment promotes international decisional harmony. By treating the limitation of foreign law as part of the law governing the maintenance obligation, the Supreme Court sought to ensure that the claim would have the same procedural outcome in Sweden as in Canada. From a private international law perspective, this reasoning is welcome, as it advances the fundamental goal of achieving consistent outcomes across jurisdictions.