C. Divorce Judgments

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 186-188

Contenidos

• 1) Effective Date of Divorce Judgment; Appeals; Rescission of Divorce Judgment.
• 2) Expedition of Divorce Judgment.
• 3) National Effect of Divorce and Corollary Orders.
• 4) Right to Remarry.

Page 186

1) Effective Date of Divorce Judgment; Appeals; Rescission of Divorce Judgment

Pursuant to section 12 of the Divorce Act, a divorce judgment normally takes effect on the thirty-first day after the day on which the judgment granting the divorce was rendered, or at such later date as all rights of appeal have been exhausted. A divorce is not effective until an appeal has been determined and the time for any further appeal from the appellate judgment has expired.⁶⁷ Pursuant to sections 12(3), 12(4), 12(5), and 21(2) of the Divorce Act, no appeal lies from a judgment granting a divorce on the expiry of the time fixed by law for instituting an appeal, unless an extension of the time for appeal has been granted prior to expiry of the normal period. Less restrictive conditions apply to appeals respecting corollary relief in divorce proceedings, as distinguished from the judgment on marital status. Pursuant to section 21(4), an appellate court or a judge thereof may, on special grounds, grant an extension of the time for appealing corollary relief even after expiry of the normal period. Although no appeal lies from a divorce judgment that has taken effect under section 12 of the Divorce Act, the judgment may be set aside where it was obtained by irregular or illegal means,⁶⁸as, for example, where fraud is involved, where statutory provisions or rules of court are contravened, or where principles of natural justice are infringed. Infringement of principles of natural justice should not, however, render the divorce judgment void but only voidable, so that the court can do justice to all affected parties.⁶⁹Any application for rescission is properly made to the trial court and not to the Court of Appeal. A court has the inherent jurisdiction to amend a divorce judgment so as to correct an error respecting the date of the marriage dissolved, notwithstanding that there is no ability to appeal the judgment and notwithstanding that the error goes beyond what can be corrected under the slip rule.⁷⁰In Rishi v Deo,⁷¹ the Saskatchewan Court of Appeal held that a divorce judgment may be vacated on appeal if the spouses have reconciled and the time for appeal has not expired.

Page 187

2) Expedition of Divorce Judgment

Section 12(2) of the Divorce Act empowers the court to reduce or eliminate the thirty-one day waiting period that must ordinarily elapse before the divorce judgment takes effect. The exercise of this jurisdiction is conditioned on (1) the...