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

• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

179

Chapter 7

Divorce: Jurisdiction; Judgments;

Foreign Divorces; Grounds for

Divorce; Bars

A. SEPARATION AGREEMENTS; DIVORCE SETTLEMENTS

Spouses may separate without seeking any order from the courts. If they do

so, they usually regulate the consequences of their separation by entering

into a separation agreement dealing with such maers as division of property,

support rights, and the parenting of the children.1

Rights and obligations under a separation agreement are not auto-

matically terminated by a subsequent spousal reconciliation. For example, if

property has already been transferred by one spouse to the other under the

terms of a separation agreement, a subsequent reconciliation does not revest

the property in the original owner. When lawyers dra a separation agree-

ment, they usually include a provision that specif‌ically deals with the ef‌fect of

a subsequent reconciliation.

Separation agreements or minutes of selement can also be entered into

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

in order to terminate the marriage and render the parties free to remarry a

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

tion for divorce, but may also 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 af‌fairs in order by way of a separation agreement. Sep-

arated and divorced spouses must also review their wills, insurance policies,

pension plans, and other important documents.

1 As to the right to have any proceeding conducted in either English or French or both

ocial languages, see Divorce Act, ss 23.1 and 23.2.

Canadian family law180

Spousal separation is the conventional prelude to a divorce. Separated

spouses who wish to obtain spousal or child support, or a parenting order

with respect to their children, may apply to the courts pursuant to provincial

or territorial legislation. In the alternative, they may institute divorce pro-

ceedings and claim spousal and child support or a parenting order as corol-

lary 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 relief under the federal Divorce

Act or under provincial or territorial legislation. e substantive outcome of

the dispute will not normally be af‌fected. Spousal claims for property div-

ision are regulated, however, by provincial or territorial legislation and fall

outside the scope of the Divorce Act. Spousal property disputes can, never-

theless, be joined with a divorce petition so as to enable all economic and par-

enting 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 seling their dif‌ferences by a negotiated agreement or selement.

Less than 4 percent of all divorces involve a trial of contested issues where the

spouses give evidence in open court.

Before examining provincial and territorial legislation regulating such

maers as parenting, support, and property division, it is appropriate to

summarize the basic provisions of the Divorce Act. ey relate to jurisdiction,

• the ground for divorce,

• bars to divorce,

• spousal and child support,

• parenting arrangements, and

• process.

e f‌irst three of these are dealt with in this chapter, while spousal support is

dealt with in Chapter 8, child support in Chapter 9, parenting arrangements

in Chapter 10, and process in Chapter 6.

B. JURISDICTION

1) Introduction

Sections 3 to 6.3 of the Divorce Act include detailed provisions respecting the

exercise of judicial jurisdiction over a “divorce proceeding,” “corollary relief

2 RSC 1985, c3 (2d Supp).

Chapter 7: Divorce: Jurisdiction; Judgments; Foreign Divorces; Ground s for Divorce; Bars 181

proceeding,” or “variation proceeding.” Each of these terms bears a technical

meaning that is def‌ined in section 2(1) of the Act.3

2) Def‌inition of “Court”

e def‌inition of “court” in section 2(1) of the Divorce Act designates a par-

ticular court in each province or territory that has jurisdiction to entertain

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

erally appointed judges. is ref‌lects the constitutional limitations imposed

on both the Parliament of Canada and the provincial legislatures by section

96 of e Constitution Act, 1867.4

3) Exercise of Jurisdiction by Judge Alone

Section 7 of the Divorce Act expressly provides that the jurisdiction to grant a

divorce is exercisable only by a judge without a jury.

4) Habitual Re sidence

In Hiebert v Fingerote, Burrows J, of the Alberta Court of Queen’s Bench,

observed that “[a]ll the provisions in the Divorce Act which previously made

jurisdiction depend on where a spouse or a child was ‘ordinarily resident’

have been changed to make jurisdiction depend on where the spouse or child

3 As to interjurisdictional support orders, see sections 18-19 of the Divorce Act: see also

sections 28–29.5 of the Divorce Act whereby the provisions of the Hague Convention on

the International Recovery of Child Support and Other Forms of Family Maintenance have

the force of law in Canada insofar as they relate to subjects that fall within the legis-

lative competence of Parliament. As to the implementation of the Hague Convention

on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of

Parental Responsibility and Measures for the Protection of Children, see the Divorce Act, sec-

tions 30–41. See also John-Paul E Boyd, “A Brief Overview of Bill C-78, An Act to Amend

the Divorce Act and Related Legislation; Part 2: Amendments Relating to Interjurisdic-

tional Agreements and Treaties” (June 2018) online: Canadian Research Institute For

Law and the Family www.crilf.ca/Documents/Bill_C78_Overview_Part_II_-_Jun_2018.

pdf. See Department of Justice, Canada, “The Divorce Act Changes Explained” online:

Dept of Justice, Canada www.justice.gc.ca/eng/f‌l-df/cf‌l-mdf/dace-clde/index.html; Pres-

entation of Department of Justice, Marie-Josée Poirier & Andina van Isschot, “Divorce

Act Amendments,” 29th Annual Family Law Conference, Part 1, County of Carleton Law

Association, Ottawa, 1 October 2020. While Canada has signed these conventions, it is

not yet a party to either. Canada will be in a position to become a party when at least

one province or territory adopts implementing legislation and indicates to the federal

government they are ready for the Convention to apply to them. The application of the

Conventions in Canada will therefore occur on a province-by-province basis.

4 (UK), 30 & 31 Vict, c3. See McEvoy v New Brunswick (AG), [1983] 1 SCR 704, (sub nom Re

Court of Unif‌ied Criminal Jurisdiction) 46 NBR (2d) 219.