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

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 164-207

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Divorce: Jurisdiction; Judgments;

Foreign Divorces; Grounds for

Divorce; Bars

A.SEPARATION AGREEMENTS; DIVORCE SETTLEMENT S

Spouses may separate wit hout seeking any order from t he courts. 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 termi nated by a subsequent spousal reconciliat ion. For example, if prop-

erty has already been transfer red by one spouse to the other under the terms

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

property in the original owner. When lawyers draft a separation agreement,

they usually include a provision that specically deals with the eect of a

subsequent reconcil iation.

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 post pone di-

vorce for a few years; others never get a divorce. Separ ated spouses who never

divorce are wise to put thei r aairs in order by way of a separation ag reement.

Separated and divorced spou ses must also rev iew their wi lls, insurance poli-

cies, pension plans, and ot her important documents.

Spousal separation is the conventional prelude to a divorce. Separated

spouses who wish to obtain spousal or child support, or custody of or access

to their children, may apply to the courts pursuant to provincial or terri-

torial leg islation. In the alternative, they may i mmediately institute divorce

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

Chapter : Divorce: Jurisdiction; Judg ments; Foreign Divorces; Grounds for D ivorce; 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 norm ally 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 Act. Spousal proper ty

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. Le ss than  percent of all divorces involve a tr ial of

contested issues where the spouses give ev idence in open court.

Before examining provincial and territorial legislation regulating such

matters as support, custody, access, and property division, it is appropr iate

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

t jurisdiction,

t the ground for divorce,

t bars to divorce,

t spousal and c hild support,

t parenting arr angements, and

t process.

e rst three of these is dealt with in this chapter, spousal support is dealt

with in Chapter , child support in Chapter , parenting arrangements in

Chapter , and process in Chapter .

B.JURISDICTION OVER DIVORCE

) Introduction

Sections  to  of the cu rrent Divorce Act include detailed provisions respect-

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

lary rel ief proceeding,” or “variation procee ding.” Each of these terms bears a

technical me aning that is dened in sect ion () of the Act. Once jurisdiction

has been established, the doctrine of forum non conveniens al lows a defendant

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

forum exi sts.

RSC , c  (d Supp).

Wang v Lin,  ONSC ; Gyu zeleva v Angelov,  ONSC .

    

) Denition of “Court”

e denition of “court” in section () of the Divorce Act designates a par-

ticular court in each province or territory that has jurisdiction to entertain

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

erally appointed judges.  is reects the constitutional lim itations imposed

on both the Parliament of Canada and the provincial legislatures by section

 of the Constitution Act, .

) Exercise of Jurisdict ion by Judge Alone

Section  of the Divorce Act ex pressly provides that the jurisd iction 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 appl ication for corollary re lief by way of spousal

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

resident within the prov ince for at least one year immediately precedi ng 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 always lived in Ontar io but his wife, after separa-

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

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

Saskatchewan Cou rt of Queen’s Bench could deal with a divorce pe tition led

by either spouse. To avoid any such judicial conict, section () of the Di-

vorce Act provides that, if petitions have been led in two courts that other-

wise would have jur isdiction under section (), the rst in time prev ails if it

is not discontinued wit hin thirty d ays of its commencement; thus the second

proceeding sha ll be deemed to be discontinued, and t he court of the province

or territory in which the rst petition was led will assume exclusive juris-

diction over the divorce. If both petitions have been led on the same day,

the conict of judic ial jurisdiction is resolved b y exclusive jurisdiction bei ng

(UK),  &  Vict, c  . See McEvoy v New Bruns wick (AG), []  SCR , (sub nom Re

Court of Unied Crimina l Jurisdiction)  NBR (d)  .

Schlotfeldt v Schlotfeldt, [ ] BCJ No  (SC); RLMP v K EP,  BCSC ; see a lso

Section B(), below in th is chapter.

See Astle v Walton (),  RFL (d)  (A lta QB).