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

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 174-214

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 

Divorce: Jurisdiction; Judgments;

Foreign Divorces; Ground for Divorce;

Bars

A. SEPARATION AGREEMENTS; DIVORCE

SETTLEMENTS

Spouses may separ ate without seeking any order f rom the courts. If they do

so, the y usually regulate the consequences of thei r separation by entering

into a separation agreeme nt 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 separ ation agreement are not automatic-

ally term inated by a subsequent spousal reconcili ation. 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 ow ner. When law yers draft a separat ion agreement,

they usually i nclude a provision that specif‌ically deals with the ef‌fect of a

subsequent reconciliation.

Separation ag reements or minutes of sett lement can also be entered into

by divorcing spouses, but a divorce judg ment must be obtained from the court

in order to term inate the marriage and render t he parties free to remarry a

third party. Separated spou ses who do not reconcile may subsequently peti-

tion for divorce, but may choose not to do so. Some postpone divorce for a few

years; others never get a divorce. Separated spouses who never divorce are wise

to put th eir af‌fa irs in order by way of a se paration agreement a nd by rev iewing

their wil ls, insurance policies, pension pla ns, and other important documents.

Spousal separation is the conventiona l prelude to a divorce. Separated

spouses who wish to obt ain spousal or child supp ort, or custody of or access

to their ch ildren, m ay apply to t he courts pursuant to prov incial or terr i-

torial leg islation. In the alternative, they may immediately inst itute divorce

proceedings and claim spousal and child support or c ustody of or access

Chapter : Divorce: Jur isdiction; Judgments; Forei gn Divorces; Ground for Divorce; Bars 

to the children as corollar y relief i n the d ivorce proceedings. In this event,

the releva nt legislative prov isions will be found in the Divorce Act. In most

cases, it is immateri al whether a separated spouse or parent seek s support,

custody, or access u nder the federal Di vorce Act or under provincial or ter-

ritorial leg islation. e outcome of the dispute will not normall y be af‌fected.

Spousal c laims for property division are regulated by provincia l or territor -

ial legi slation and fall outside the scope of the Divorce Act. Spous al property

disputes ca n, nevertheless, be joined with a d ivorce petition so as to enable

all economic and parenting issues between the sp ouses to be determined

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

are uncontested, w ith the spouses s ettling their d if‌ferences by a negotiated

agreement or settlement. Less than  percent of all di vorces involve a trial of

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

Before ex amining prov incial and territorial legislation reg ulating such

matters as support, custody, access, a nd 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 arra ngements, and•

process.•

e f‌irst three of these is dealt wit h in this chapter, spousa l support is dealt

with in Chapter , c hild support in Chapter , parenting arrangements i n

Chapter , and process in Chapter .

B. JURISDICTION OVER DIVORCE

) Introduction

Sections  to  of the current Divorce Act i nclude detailed provisions respect-

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

lary relief proceedi ng,” or “variation proceeding.” Each of these terms bears a

technical mea ning that is def‌ined in section () of the Act.

) Def‌inition of “Court”

e def‌i nition of “cour t” in section () of the Di vorce Act designates a par-

ticular court in each province or territory that has jur isdiction to enterta in

 R.S.C. , c.  (d Supp.).

   

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

erally appointed judges. is ref‌lects the const itutional limitations impose d

on both the Parl iament of Canada and t he provincial legisl atures by section

 of the Constitution A ct, .

) Exercise of Jurisdiction by Judge Alone

Section  of the Divorce Act expre ssly pro vides t hat the j urisd iction to grant a

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

) Jurisdiction in Divorce Proceedings

a) Basic Statutory Crite ria

Pursuant to section () of t he Divorce Act, a court of a prov ince, as def‌ined

in sect ion (), has jurisd iction to hear and determine a n application for d i-

vorce and any accompanying application for corollar y relief by way of spousal

or c hild support or cu stody or access, if either spous e has been ordina rily

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

commencement of the proceeding. ere is a potentia l conf‌lict of jur isdic-

tion if the one s pouse’s ordin ary residence has been i n one province or ter-

ritory and the other spouse’s ordina ry residence has b een in another. If, for

example, the hu sband had always lived i n Ontario but his wife, after separa-

tion, ret urned to her home provi nce of Sask atchewan, where she has been

living for the past year, the Ont ario Superior Court of Justice as well a s the

Saskatchewan Cour t of Queen’s Bench could deal with a divorce petition f‌iled

by eit her spouse. To avoid any such judicial conf‌lict, section () of the Di-

vorce Act provides that, if petitions have been f‌iled i n two courts t hat other-

wise would have jur isdiction under section (), the f‌irst in time prevai ls if it

is not discontinued within thirty days of its commencement; thus the second

proceeding shall be deemed to be discontinued, and the court of the province

or terr itory in which the f‌irst petition was f‌i led will assume exclusive juris-

diction o ver the divorce. If both petitions have been f‌i led on the sa me day,

the conf‌lict of judic ial jurisdiction is resolved by exclusive jurisdict ion being

vested in the Trial Division of the Federal Court. Section () of the D ivorce

Act does not apply when divorce petitions have been f‌iled in two d if‌ferent

 (U.K.),  &  Vict., c.  . See McEvoy v. New Brunswic k (A.G.), []  S.C.R. , (sub

nom. Re Court of Unif‌ie d Criminal Jurisdict ion)  N.B.R. (d) .

 Schlotfeldt v. Schlotfeldt, [ ] B.C.J. No.  (S.C.); R.L. M.P. v. K.E.P.,  BCSC  .

See also Sec tion B(), below in this ch apter.

 See Astle v. Walton (),  R.F.L. ( d)  (Alta. Q.B.).

 Divorce Act, R. S.C.  (d Supp.), c. , s. ().