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 usually regulate the consequences of their separation by entering

into a separation agreement dealing with such matters as division of prop-

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

Rights and obligations 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 usually include a provision that specically deals with the eect of a

subsequent reconciliation.

Separation agreements or minutes of settlement can also be entered

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

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

remarry a third party. Separated 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 their wills, i nsurance poli-

cies, pension plans, and ot her important documents.

Spousal separation is 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 children, may apply to the courts pursuant to provincial or terri-

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

proceedings and claim spousal and child support or custody of or access

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

to the children as corollary relief in the divorce proceedings. In this event,

the relevant legislative provisions will be found in the Divorce Act. In most

cases, it is immaterial whether a separated spouse or parent seeks support,

custody, or access under the federal Divorce Act or under provincial or ter-

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

Spousal claims for property division are regulated by provincial or territor-

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

disputes can, nevertheless, be joined with a divorce petition so as to enable

all economic and parenting issues between the spouses to be determined

by the same court at the time of the divorce. e vast majority of divorces

are uncontested, with the spouses settling their 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 examining provincial and territorial legislation regulating such

matters as support, custody, access, and property division, it is appropriate

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

• jurisdiction,

• 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 detailed prov isions respect-

ing the exercise of judicial 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 jurisdiction 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 section () of the Divorce Act designates a par-

ticular court 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 eConstitution 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 section () of the Divorce Act, a court of a province, as dened

in section (), has jurisdiction to hear and determine an application for di-

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

or child support or custody or access, if either spouse has been ordinarily

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

commencement of the proceeding. ere is a potential conict of jurisdic-

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

ritory and the other spouse’s ordinary residence has been in another. If, for

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

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

living for the past year, the Ontario Superior Court of Justice as well as the

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 petitions have been led in two courts that otherwise

would have jurisdiction under section (), the rst in time prevails if it is

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

proceeding shall be deemed to be discontinued, and the court of the prov-

ince or territory in which the rst petition was led will assume exclusive

jurisdiction 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).