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

AuthorJulien D. Payne/Marilyn A. Payne
Chapter 7
Divorce: Jurisdiction; Judgments;
Foreign Divorces; Grounds for Divorce;
Spouses may separate wit hout seeking any order from t he courts. If they do
so, they usual ly regulate the consequences of their separation by enter ing
into a separation agreement dea ling with suc h matters as division of prop-
erty, support rights , and custody of or access to the children.1
Rights and obligat ions under a separation agreement are not automatic-
ally termi nated by a subsequent spousal reconciliation. For ex ample, if prop-
erty has a lready been transferred by one spouse to t he other under the terms
of a separation agreement, a subse quent reconciliation does not revest the
property in the or iginal owner. When lawyers d raft a separation agreement,
they usual ly include a provision th at specical ly deals with the eect of a
subsequent reconci liation.
Separation agreements or m inutes of settlement can also be entered into
by divorcing spouses, but a d ivorce judgment must be obtained from the cour t
in order to terminate the m arriage a nd render the parties f ree to remarry a
third part y. Separated spouses 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 their a airs in order by way of a sepa ration agreement. Sep-
arated and divorced spouses must a lso review their wills, insurance policies,
pension plans, and other i mportant 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
1 As to the rig ht to have any proceeding c onducted in either Engl ish or French or both
ocial la nguages, see Divorce Act, s s 23.1 and 23.2.
Chapter 7: Divorce: Juris diction; Judgments; Foreign D ivorces; Grounds for Divorce; Bars 177
to their child ren, may apply to the courts pu rsuant to provinci al or terri-
torial legi slation. In the alternative, they may im mediately institute divorce
proceedings and cl aim spousal a nd child support or c ustody of or access
to the children a s corollary rel ief in the divorce proceedings. In this event,
the relevant legisl ative provisions wi ll be found in the Divorce A ct.2 In most
cases, it is immater ial whether a separated spouse or parent seeks suppor t,
custody, or access under the federal Divorce Ac t or under provincia l or ter-
ritorial leg islation. e outcome of the dispute will not norma lly be aected.
Spousal cla ims for property division are regulated by provincia l or territor-
ial legislation and fall outside the scope of the Divorce Act. Spousal proper ty
disputes can, never theless, be joined with a divorce 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 majorit y of divorces
are uncontested, with the spouses settling their dierences by a negoti ated
agreement or settlement. Les s than 4 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 territori al legislat ion regulating 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
the ground for d ivorce,
bars to divorce,
spousal and ch ild support,
parenting arrangements, and
e rst three of these are de alt with in this chapter, whi le spousal support is
dealt with in Ch apter 8, child support in Chapter 9, parenting a rrangements
in Chapter 10, and process in Chapter 6.
1) Introduction
Sections 3 to 6.3 of the Divorce Act include deta iled provisions respecting the
exercise of judicia l jurisdict ion over a “divorce proceedi ng,” “corollary relief
proceeding,” or “variat ion proceeding.” Each of these terms bears a techn ical
meaning that is de ned in section 2(1) of the Act.3 Once jurisdict ion has been
2 RSC 1985, c 3 (2d Supp).
3 See important c aveat at page i in this book . As to interjurisdictional support orders,
see sections 1 8-19 of the Divorce Act and se ctions 28–29.5 whereb y the provisions of the
Canadi an family law178
established, the doc trine of forum non conveniens a llows a defendant to con-
test a court’s jurisdic tion on the basis that another, more appropriate, forum
exists.4 A Canadian cou rt may decline to exercise its ju risdiction where there
is another forum th at is more appropriate. Factors that a court may take into
account in addressing the for um conveniens include: the location of the major-
ity of the parties; t he location of key witnesses a nd evidence; contractual
provisions that spec ify applicable law or accord jurisd iction; the avoidance of
a multiplicity of proceed ings; the applicable law and its weight in compar ison
to the factual questions to be decided; geographical factors sug gesting the
natural foru m; whether declining jurisdiction would deprive the plainti of
a legitimate jur idical advantage available in t he domestic court; and enforce-
abi lity. 5 But parties should not be left w ithout any forum to make their c laim.
As Sharp e JA, of the Ontario Cou rt of Appeal, st ated in Van Breda v Village
Resorts Limited,6 the forum of necessity doctri ne should be explic itly recog-
nized: where there is no other for um in which the plainti can rea sonably
seek relief, there is a residua l discretion to assume jurisd iction.
Hague Convention on the Internat ional Recovery of Chi ld Support and Other For ms of Family
Maintenance have the force of law i n Canada insofa r as they relate to sub jects that fal l
within t he legislative compe tence of Parliament. A s to the implementation of t he Hague
Convention on Jurisd iction, Applicable L aw, Recognition, Enforce ment and Co-operation in
Respect of Parental R esponsibility an d Measures for the Protecti on of Children, see the Divorce
Act, sections 30–41. S ee also John-Paul E Bo yd, “A Brief Overv iew of Bill C-78, An Ac t to
Amend the Divorce A ct and Related L egislation; Par t 2: Amendments Re lating to Inter-
jurisdic tional Agree ments and Treaties” (June 2018) onl ine: Canadia n Research Inst itute
For Law and the Fami ly www.cri lf.ca/Docu ments/Bill_ C78_Overv iew_Part_ II_-_
Jun_2018.p df. See Departm ent of Justice, Canad a, “e Divorce Act Changes Explained”
online: Dept of Justice, C anada www.justice.gc .ca/eng/-df/c-mdf/dace- clde/index.html.
While C anada has sign ed these conventions, it is not ye t a party to either. Ca nada will
be in a position to be come a party when at leas t one province or territor y adopts
implementing le gislation and ind icates to the federal gov ernment they are read y for
the Convention to appl y to them. e application of t he Conventions in Can ada will
therefore occu r on a province-by-p rovince basis.
4 See Liu v Xu, 2020 BCSC 92 , citing Club Resor ts Ltd v Van Breda, 2012 SCC 17 at paras
101–3; see als o LGV v LAP, 2016 NBCA 23 ; Wang v Lin, 2013 ONCA 33; Essa v Meka wi,
2014 ONSC 7409. Compa re eriault v eriault , 2014 SKQB 373 at para s 14–16, citing
Walling v Walling, 2007 SKQB 43.
5 Alcaniz v Willoughby, 2011 ONSC 7045, cit ing Muscutt v Courcelles (2002), 60 OR (3 d) 20
(CA), and Follwell v Holmes, [200 6] OJ No 4387 (Sup Ct); see also LGV v LA P, 2016 NBCA
23; Ogunlesi v Ogunlesi, 2012 ONSC 211 2, a’d 2012 O NCA 723; Wang v Lin, 2013 ONCA
33; Karkulowski v Karkulowski, 2014 ONSC 1 222, citing Van Breda v Vill age Resorts Ltd,
2012 SCC 17; Barkan v O vodov, 2016 ONSC 6105. See als o GM v JM, 2017 NWTSC 90;
eriault v er iault, 2014 SKQB 373 .

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