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 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

• 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 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 .

6 2010 ONCA 84.