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

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 176-220

176

Chapter 7

Divorce: Jurisdiction; Judgments;

Foreign Divorces; Grounds for Divorce;

Bars

A. SEPARATION AGREEMENTS; DIVORCE SETTLEMENTS

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 , and custody of or access to the children.1

Rights and obligations 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 subsequent reconciliation does not revest the

property in the or iginal owner. When lawyers d raft a separation agreement,

they usually include a provision that specically 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 marriage a nd render the parties free to remarry a

third party. 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 separation 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; Bars177

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

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

the relevant legislative provisions will be found in the Divorce Act.2 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 legislation 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. 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 examining provincial and territorial legislation regulating such

matters as support, custody, access, and property div ision, it is appropriate

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

• jurisdiction,

• the ground for d ivorce,

• bars to divorce,

• spousal and ch ild support,

• parenting arrangements, and

• process.

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.

B. JURISDIC TION OVER DIVORCE

1) Introduction

Sections 3 to 6.3 of the Divorce Act include deta iled provisions respecting the

exercise of judicia l jurisdiction over a “divorce proceeding,” “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 doctrine of forum non conveniens allows 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; the location of key witnesses and 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 suggesting 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-

ability.5 But parties should not be left w ithout any forum to make their c laim.

As Sharpe JA, of the Ontario Court of Appeal, stated in Van Breda v Village

Resorts Limited,6 the forum of necessity doctrine should be explicitly recog-

nized: where there is no other forum in which the plainti can reasonably

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,sections30–41. 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 .

6 2010 ONCA 84.