Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 178-221

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Divorce: Jurisdiction; Judgments;

Foreign Divorces; Grounds for

Divorce; Bars

A. SEPARATION AGREEMENTS; DIVORCE SETTLEMENTS

Spouses may separate wit hout seeking any order from the cour ts. If they do

so, they usual ly regulate the consequences of t heir separation by entering

into a separation agreement dea ling with such m atters as division of prop-

erty, support rights, a nd custody of or access to the children.

Rights and obligation s under a separation agreement are not automatic-

ally term inated by a subsequent spousal reconciliation. For ex ample, if prop-

erty has a lready been transferred by one spou se to the other under the terms

of a separation agreement, a subsequent reconciliation does not revest the

property in the or iginal owner. When lawyer s draft a separation agreement,

they usual ly include a provision that s pecical ly deals with the e ect of a

subsequent reconciliation.

Separation agreements or mi nutes of settlement can also be entered

into by divorcing spouses, but a divorce judgment must be obtained from

the court in order to term inate the marr iage and render the part ies free to

remarry a t hird party. Separ ated spouses who do not reconcile may subse-

quently petition for divorce, but may choose not to do so. Some postpone di -

vorce for a few years; others never get a divorce. Separated s pouses who never

divorce are wise to put their a airs in order by way of a separation ag reement.

Separated and divorced spouses must also review t heir wills, i nsurance poli-

cies, pension plans, and ot her important documents.

Spousal separation i s the conventional prelude to a divorce. Separated

spouses who wish to obta in spousal or child support, or cu stody of or access

to their child ren, may apply to the courts purs uant to provincia l or terri-

torial legi slation. In the alternative, they may im mediately institute divorce

proceedings and cl aim spousal a nd child support or cu stody of or access

Chapter : Divorce: Juris diction; Judgments; Foreign D ivorces; Grounds for Divorce; Bars 

to the children a s corollary rel ief in the divorce proceedings. I n this event,

the relevant legisl ative provisions wi ll be found in the Div orce Act. In most

cases, it is immater ial whether a separated s pouse or parent seeks support ,

custody, or access under the federal Di vorce Act or under provinc ial or ter-

ritorial leg islation. e outcome of the dispute will not norma lly be aected.

Spousal cla ims for property div ision are regul ated by provincial or ter ritor-

ial legisl ation and fall outside t he scope of the Divorce A ct. Spousal property

disputes can, never theless, be joined with a d ivorce petition so as to enable

all economic and parenti ng issues between the spouses to be determined

by the same court at the t ime of the divorce. e vast majority of d ivorces

are uncontested, with the sp ouses settling t heir dierences by a negotiated

agreement or settlement. Less t han  percent of all divorces involve a tri al of

contested issues where the spouses give e vidence in open court.

Before examin ing provincia l and territoria l legislation reg ulating such

matters as support, c ustody, access, and property div ision, it is appropriate

to summari ze the basic provisions of the Divorce Act. ey relate to

• jurisd iction,

• the ground for divorce,

• bars to divorce,

• spousal and ch ild support,

• parenting arrangements, and

• process.

e rst three of these are dea lt with in this chapte r, while spousal support is

dealt with in Ch apter , child support in Chapter , parenting a rrangements

in Chapter , and process in Chapter .

B. JURISDIC TION OVER DIVORCE

) Introduction

Sections  to  of the cur rent Divorce Act include de tailed prov isions respect-

ing the exercise of jud icial jurisdiction over a “divorce proceeding,” “corol-

lary rel ief proceeding,” or “variation proceeding.” Each of thes e terms bears a

technical mea ning that is dened in sect ion () of the Act. Once jurisdiction

has been establi shed, the doctrine of forum non conveniens a llows a defendant

to contest a court’s jurisdict ion on the basis that another, more appropriate,

forum exist s.

 RSC , c  (d Supp).

 Viana v Pontes,  NBQB ; LG V v LAP,  NBCA ; Wang v Lin,   ONCA ;

Karkulowski v Karkulowski,  ONSC  ; Essa v Mekawi,   ONSC . Compare

eriault v eriault,  SKQB  at pa ras –, citi ng Walling v Wa lling,   SKQB .

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) Denition of “Court”

e denition of “court” in sec tion () of the Divorce Ac t designates a par-

ticular cou rt in each province or ter ritory that has jurisdict ion to entertain

proceedings under the A ct. A designated court must be presided over by fed-

erally appointed judges.  is reects the constitutional limit ations imposed

on both the Parliament of Ca nada and the provincial leg islatures by section

 of e Constitution Ac t, .

) Exercise of Jurisdic tion by Judge Alone

Section  of the Divorc e Act expressly prov ides that the jurisdict ion to grant a

divorce is exercisable on ly by a judge without a jury.

) Jurisdiction in Divorce Proceedings

a) Basic Statutory Cr iteria

Pursuant to sect ion () of the Divorce Act, a cour t of a province, as dened

in section (), has jurisd iction to hear and determi ne an application for di-

vorce and any accompanying applic ation for corollary relief by way of spous al

or child support or cu stody or access, if either spouse ha s been ordinari ly

resident within the prov ince for at least one year immediately preceding the

commencement of the proceeding. ere is a potenti al conict of jur isdic-

tion if the one spouse’s ordinar y residence has been in one province or ter -

ritory and the other s pouse’s ordinary residence has be en in another. If, for

example, the husband had a lways lived in Ontario but his wife, a fter separa-

tion, returned to her home provi nce of Saskatchewan, where she has been

living for the past ye ar, the Ontario Superior Cour t of Justice as well as t he

Saskatchewan Cou rt of Queen’s Bench could deal with a divorce petit ion led

by either spouse. To avoid any such judicial con ict, section () of the Divorce

Act provides that, if pet itions have been led in two cou rts that other wise

would have jurisd iction under section (), the rst in time prev ails if it is

not discontinued withi n thirty d ays of its commencement; thus, the second

proceeding shal l be deemed to be discontinued, a nd the court of the prov-

ince or territory in w hich the rst petition w as led wil l assume exclusive

jurisdict ion over the divorce. If both petitions have been  led on the same

 (UK),  &  Vict , c . See McEvoy v New Brun swick (AG), []  SCR , (sub nom Re

Court of Unied Cri minal Jurisdiction)  NB R (d) .

 Nae v Badawy,  A BCA ; Schlotfeldt v Schlotfeldt, [] BCJ No  (SC); Cantave

v Cantave,  ONSC ; eriault v eriault,  SKQB  ; see also Sect ion B(),

below in thi s chapter.

 See Astle v Walton (),  RFL ( d)  (Alta QB).