Divorce: Jurisdiction; Judgments; Foreign Divorces; Ground for Divorce; Bars
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 179-221 |
DIVORCE: JURISDICTION;
JUDGMENTS; FOREIGN
DIVORCES; GROUND FOR
DIVORCE; BARS
A. JUDICIAL SEPARATION; SEPARATION; SEPARATION
AGREEMENTS; DIVORCE SETTLEMENTS
In most provinces and territories, it is possible for spouses to obtain a
decree of judicial separation from the courts. Judicia l separation is not
available as a remedy from the courts i n Ontario or Prince Edward Island.
Spouses may separate without seeking a ny order from the courts. If they
do so, they usually regu late the consequences of their separation by en-
tering into a separation agreement deali ng with such matters as division
of property, support r ights, and custody of or access to the children.
Rights and obligations under a sepa ration agreement are not auto-
matically terminated by a subsequent spousal reconciliation. For ex-
ample, if proper ty has already b een transferred by one spou se to the other
under the terms of a separation agreement, a subsequent reconcil iation
does not revest t he property i n the origi nal owner. When l awyers dra ft
a separation agreement, they usual ly include a provision that specifical ly
deals with the effec t 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 ma rriage and render the parties free
to remarry a third pa rty. Separated spouses who do not reconcile may
subsequently petition for divorce, but may choose not to do so. Some
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180 CANADIAN FAMILY LAW
postpone divorce for a few years; others never get a divorce. Separated
spouses who never divorce are wise to put their affa irs in order by way of
a separation agreement and by reviewing t heir wills , insurance policies,
pension plans, and other important documents.
Spousal separation is the conventional prelude to a divorce. Separated
spouses who wish to obtain spous al or child support, or custody of or ac-
cess to their children, may apply to the courts pursuant to provincial or
territorial legislation. In t he alternative, they may immediately ins titute
divorce proceedings and claim spousa l and child support or custody of
or access to the ch ildren as corollar y relief in the divorce proceed ings. In
this event, the relevant legi slative 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 territorial leg islation. e outcome of the dispute will not
normally b e affected. Spousal cla ims for propert y division are regulate d
by provincial or territorial legi slation and fall outside the scope of the
Divorce Act. Spousal proper ty disput es can, nevert heless, be joined with
a divorce petition so as to enable all economic and pa renting issues be-
tween the spouses to be determined by t he same court at the time of the
divorce. e vast majority of divorces are uncontested, with the spouses
settling their differences by a negotiated agreement or settlement. Less
than percent of all divorces involve a tria l of contested issues where the
spouses give ev idence in open court.
Before examining provincia l and territorial legislation regu lating
such matters as support, custody, access, and property div ision, it is ap-
propriate to sum marize t he basic provi sions of the Divorce Act. ey re-
late to
•jurisdiction,
• the ground for divorce,
• bars to divorce,
• spousal and child support,
• parenting arrangements, and
• process.
e first three of these wi ll be dealt with in this chapter; spousal support
will be dealt with in Chapter , child support in Chapter , parenti ng ar-
rangements in Chapter , and process in Chapter .
181Divorce: Jurisdi ction; Judgments; Fore ign Divorces; Ground for Divorce ; Bars
B. JURISDICTION OVER DIVORCE
1) Introduct ion
Sections to of the cur rent Divorce Act include detailed provisions re-
specting the exercise of judicia l jurisdiction over a “d ivorce proceeding,”
“corollary relief pro ceeding ,” or “variation procee ding.” Each of thes e
terms bears a technica l meaning that is defined in s ection () of the
Act.
2) Def init io n of “C ourt ”
e definition of “cour t” in sec tion () of the Divorce Act designates a
particula r court in each province or territory that has jurisdiction to en-
tertain proceedi ngs under the Act. A designated court must be presided
over by federally appointed judges. is reflects the constit utional lim-
itations imposed on both the Parliament of Canada and the provincial
legislatures by section of the Constitution Act, .
3) Exercise of Jurisdiction by Judge Alone
Section of the Divorce Act expressly provides that the jurisdic tion to
grant a divorce is exercisable only by a judge without a jury.
4) Jurisdiction in Divorce Proceedings
a) Basic Statutor y Criteria
Pursuant to section () of the Divorce Act, a court of a province, as de-
fined in section (), has jurisdiction to hear and determi ne an application
for divorce and any accompanying application for corollary relief by way
of spousal or child support or custody or access, if either spouse has been
ordinarily resident withi n the province for at least one year immediately
preceding the commencement of the proceeding. ere is a potential
conflict of jurisdict ion if the one spouse’s ordinary residence has been in
one province or territory and the other spouse’s ordinary residence has
been in another. If, for example, the husband had always lived in Onta rio
but his wife, after s eparation, returned to her home province of Saskatch-
ewan, where she has been living for the pa st year, the Ontario Superior
(U.K.), & Vict., c. . See McEvoy v. New Br unswick (A.G.), [] S.C.R. ,
(sub nom. Re Court of Unifie d Criminal Jurisdiction) N.B .R. (d) .
See Section B(), below in this chapter.
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