Darel v. Darel, (1999) 252 A.R. 47 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 18, 1999
• Citations: (1999), 252 A.R. 47 (QB)

Darel v. Darel (1999), 252 A.R. 47 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. DE.062

Orly Darel (petitioner/respondent) v. Dror Darel (respondent/applicant)

(Action No. 4803-092371)

Indexed As: Darel v. Darel

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

November 24, 1999.

Summary:

A Jewish husband and wife divorced in 1995. The husband, resident in New York, was 57 months in arrears of spousal and child support ($700,000). The divorce judg­ment was registered in New York, a recipro­cating state. The husband applied for "con­firmation" of a request allegedly made in New York for a downward modification of the support order. Since 1994, the husband ignored his wife's request under s. 21.1 of the Divorce Act to remove all barriers within his control to obtain a religious divorce (i.e., obtain a Get or marital contractual release to permit his wife to remarry within the ortho­dox Jewish faith).

The Alberta Court of Queen's Bench held that the court had no jurisdiction to entertain the husband's application. An American court could not vary a Canadian divorce judgment. In any event, there was no provi­sional New York court order to confirm. Further, the court opined that an Alberta court would not likely exercise its jurisdic­tion given the husband's failure to do what was in his power to facilitate a religious divorce. The civil court would not likely assist a husband in civil divorce proceedings, where he refused to remove any impedi­ments to a religious divorce.

Family Law - Topic 4047.2

Divorce - Corollary relief - Maintenance - Enforcement - Confirmation of provi­sional order - A Jewish husband and wife divorced in 1995 - The husband, resident in New York, was 57 months in arrears of spousal and child support ($700,000) - The divorce judgment was registered in New York, a reciprocating state - The husband applied for "confirmation" of a request to a New York court for a down­ward modification of the support order - The Alberta Court of Queen's Bench held that the court had no jurisdiction to enter­tain the husband's application - An Amer­ican court could not vary a Canadian divorce judgment - In any event, there was no provisional New York court order to confirm - See paragraphs 31 to 45.

Family Law - Topic 4053.1

Divorce - Corollary relief - Maintenance - Enforcement - Where spouse fails to remove impediment to religious divorce - Section 21.1 of the Divorce Act provided for a request by one spouse for the other spouse to remove all barriers to remarriage within the spouse's marriage - Where a spouse does not remove a barrier to a religious divorce, the court had a discretion to dismiss any application under the Act and strike out any pleadings and affidavits filed by that spouse under the Act - Jew­ish spouses divorced in 1995 - The hus­band ignored the wife's request under s. 21.1 to obtain a Get (marital contractual release) to permit his wife to remarry within the orthodox Jewish faith - The husband, in New York, sought confirma­tion in Alberta of a request to a New York court for modification of the divorce judg­ment provisions respecting support - The Alberta Court of Queen's Bench, although dismissing the husband's application on substantive grounds, opined that there was a strong likelihood that an Alberta court would not assist the husband in the civil divorce proceeding - See paragraphs 46 to 50.

Cases Noticed:

Hinkley v. Hinkley (1984), 52 A.R. 80 (C.A.), refd to. [para. 9].

Bailey v. Bailey (1997), 187 N.B.R.(2d) 298; 478 A.P.R. 298 (C.A.), refd to. [para. 9].

Beliveau v. Lanyon (1993), 139 A.R. 271 (Q.B.), refd to. [para. 9].

Selander v. Selander (1998), 238 A.R. 151 (Q.B.), refd to. [para. 9].

Cain v. Cain (1993), 115 Sask.R. 241; 109 D.L.R.(4th) 251 (Q.B.), refd to. [para. 10].

Attrill v. Green (1994), 154 A.R. 334 (Q.B.), refd to. [para. 10].

Santa Clara (County) v. Hudson (1983), 22 Sask.R. 190; 146 D.L.R.(3d) 155 (C.A.), refd to. [para. 10].

Lysyshin v. Engebretson (1998), 173 Sask.R. 35 (Q.B.), refd to. [para. 10].

C.J.F. v. B.B.H. (1996), 139 Sask.R. 66 (Q.B.), refd to. [para. 10].

Wotherspoon v. Wotherspoon (1998), 167 Sask.R. 191 (Q.B.), refd to. [para. 10].

Mahar v. Mahar (1987), 83 N.B.R.(2d) 373; 212 A.P.R. 373 (Q.B.), refd to. [para. 10].

Stephens v. Stephens (1992), 133 A.R. 1 (Q.B.), refd to. [para. 11].

Barbe v. Keith (1993), 141 A.R. 248; 46 W.A.C. 248 (C.A.), refd to. [para. 11].

St. Lawrence (County) Department of Social Services v. Branchaud, [1996] O.J. No. 1277 (Gen. Div.), refd to. [para. 11].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17.1, sect. 18, sect. 21.1 [Appen­dix A].

Reciprocal Enforcement of Maintenance Orders Act, R.S.A. 1980, c. R-7.1, sect. 2, sect. 3, sect. 4, sect. 5 [Appendix A].

Counsel:

M.L. Pollock, for Orly Darel;

T. Kuehn, for the Director of Maintenance Enforcement;

K. Gossman, as friend of the court.

This application was heard on October 13 and November 18, 1999, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 24, 1999.