Divorce: Jurisdiction; Foreign Divorces; Ground; Bars

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 174-208

 

DIVORCE: JURISDICTION;

FOREIGN DIVORCES;

GROUND; BARS

A. JUDICIAL SEPARATION; SEPARATION

AGREEMENTS; DIVORCE SETTLEMENTS

In most provinces and territories, it is possible for spouses to obtain a

decree of judicia l separation from t he courts. Jud icial separ ation is not

availableasaremedyfromthecourtsinOntarioorPrinceEdward Island.

Spouses may sepa rate without seek ing any order from the court s. If they

do so, they usua lly regul ate the consequences of t heir separat ion by en-

tering into a sepa ration agreement dea ling with s uch matters as division

ofproperty,supportrights,andcustodyoforaccesstothechildren.

Rights and obl igations under a sepa ration agreement are not auto -

matically terminated by a subsequent spousal reconciliation. For exam-

ple, if propert y has already be en transferred by one spouse to the other

underthetermsofaseparationagreement,asubsequentreconciliation

does not revest the property in the orig inal owner. When lawyers dra ft

a separation ag reement, they usu ally include a prov ision that speci f‌ically

dealswiththeef‌fectofasubsequentreconciliation.

Separation agre ements or minutes of set tlement can al so be entered

into by divorcing spouses, but a divorcejudgment must be obtained from

the court in order to terminate the marriage and render the parties free

to remarry a third par ty. Separated spouses who do not reconcile may

subsequentlypetitionfordivorce,butmaychoosenottodoso.Some



Divorce: Jurisdi ction; Foreign D ivorces; Ground ; Bars

postponedivorceforafewyears;othersnevergetadivorce.Separated

spouseswhoneverdivorcearewisetoputtheiraf‌fairsinorderbywayof

a separation agre ement and by reviewi ng their wi lls, insu rance policie s,

pensionplans, and other importantdocuments.

Spousal sepa ration is the conventiona l prelude to a divorce. Separated

spouses who wi sh to obtain spousal or ch ild support, or custody of or ac-

cess to their ch ildren, may apply to t he courts pur suant to provinc ial or

territorial legislation. In the alternative, they may immediately institute

divorce proceed ings and cla im spousa l and child suppor t or custody of

or access to the ch ildren as corollar y relief in the divorce proceed ings. In

thisevent,therelevantlegislativeprovisionswillbefoundintheDivorce

Act. In most cases, it is immaterial whether a separated spouse or parent

seeks support , custody, or access under t he federal Divorce Act or under

provincia l or territorial legislation. e outcome of t he dispute wi ll not

normally be af‌fected. Spou sal clai ms for property d ivision are reg ulated

by provincial or territorial leg islation and fa ll outside the scop e of the

Divorce Act. Spousal propert y disputes ca n, nevertheless, be joined with

a divorce petit ion so as to enable al l economic and parent ing issues b e-

tween the spouses to be determined by the same court at t he time of the

divorce. e vast m ajority of divorces a re uncontested, with the spou ses

settling their dif‌ferences by a negotiated agreement or settlement. Less

thanpercentofalldivorcesinvolveatrialofcontestedissueswherethe

spouses give ev idence in open court.

Before examining provincial and territorial legislation regulating such

matters as support, custody, access,a ndprop erty division, it is appropr iate

to summarize t he basic provisions of the Divorce Act.eyrelateto

• jurisdiction,

• the ground for d ivorce,

• bars to divorce,

• spousal and child support,

• parenting arra ngements, and

• process.

ef‌irstthreeofthesewillbedealtwithinthischapter;spousalsupport

will be dealt with in Chapter , child support in Chapter , parenting ar-

rangements in Chapter, and processin Chapter .

 CANADIAN FAMILY LAW

B. JURISDICTION OVER DIVORCE

1) Introduct ion

Sections  to  of the current Divorce Act include deta iled provision s re-

specting t he exercise of judici al jurisd iction over a “d ivorce proceeding,”

“corollary relief proceeding,” or “va riation proceed ing.” Each of these

termsbearsatechnicalmeaningthatisdef‌inedinsection()ofthe Act.

2) Definit ion of “Court”

e def‌inition of “court ” in section () of the Divorce Act designates a

particular courtin each province orterritory that has jurisdiction to en-

tertain proc eedings u nder the Act. A design ated court must be preside d

over by federally app ointed judges.  is ref‌lects t he constitut ional lim i-

tations imposed on both the Parliament of Canada and the provincial

legislaturesbysectionoftheConstitution Act, .

3) Exercise of Jurisdiction by Judge Alone

Section  of the Divorce Act expres sly provides that the jurisdic tion to

grant a divorce i s exercisable only by a judge without a jur y.

4) Jurisdiction in Divorce Proceedings

a) Basic Statutory Criter ia

Pursuanttosection()oftheDivorce Act,acourtofaprovince,asde

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f‌ined in sec tion (),ha s jurisdiction to he ar and determine an appl ication

for divorce and any accompa nying applic ation for corollar y relief by way

of spousal or child support or custody or access, if eitherspouse has been

ordinari ly resident within the province for at lea st one year immed iately

preceding the commencement of the proceeding.ere is a potential

conf‌lict of jurisdiction if the husband’s ordinary residence has been in

one province or territ ory and the wi fe’s ordinary re sidence has been in

another. If,forexample,thehusbandhadalwayslivedinOntariobuthis

wife, af ter separation, ret urned to her home provi nce of Saskatchewa n,

whereshehasbeenlivingforthepastyear,theOntarioSuperiorCourt

of Justice as well a s the Saskatchewan Court of Que en’s Bench could deal

 (U.K.),&Vict.,c..SeeMcEvo y v. New Brun swick (A.G .),[]S.C.R.,

(sub. nom. Re Court of Unif‌ied Criminal Jurisdiction),  N.B.R. (d).

 See Sec tion B(), “Ordi narily Resident.”