Downton v. Royal Trust Co. et al., (1970) 1 Nfld. & P.E.I.R. 203 (NFCA)

• Court: Court of Appeal (Newfoundland)
• Case Date: May 14, 1970
• Jurisdiction: Newfoundland and Labrador
• Citations: (1970), 1 Nfld. & P.E.I.R. 203 (NFCA)

Downton v. Royal Trust (1970), 1 Nfld. & P.E.I.R. 203 (NFCA)

MLB headnote and full text

Downton v. The Royal Trust Company et al.

Indexed As: Downton v. Royal Trust Co. et al.

Newfoundland Supreme Court

Appeal Division

Furlong, C.J.

May 14, 1970.

Summary:

Trial Court granted application by wife of deceased for maintenance under the Family Relief Act and ordered payment of $20,000 to wife out of $60,000 estate. Court held applicant was a "dependant" despite Nevada divorce.

Court held invalid a divorce obtained by the deceased from the applicant in Nevada after a brief period of qualifying residency since domicile was the only test of divorce jurisdiction and the parties were domiciled in Newfoundland. The casual or transitory domicile required in Nevada was not sufficient to acquire actual domicile for purposes of divorce jurisdiction. Although the applicant had submitted to the foreign jurisdiction and was therefore estopped from impugning it or denying that she was not a dependent of the deceased, Court held that Section 5 of the Family Relief Act directed the Court to make its own inquiries which the Court stated included examining the validity of the foreign divorce.

Conflict of Laws - Topic 646

Jurisdiction - Submission to - Effect of - Estoppel - Effect of party submitting to foreign jurisdiction - Party who claims relief in a foreign jurisdiction estopped from impugning jurisdiction of foreign tribunal - (Newfoundland Court of Appeal).

Conflict of Laws - Topic 2101

Family law - Divorce - General - Recognition of foreign divorce - Jurisdiction - Domicile of married couple only test of divorce jurisdiction - Domicile must be actual and not casual or a transitory one for purpose of acquiring fictional status to obtain divorce - Domicile of parties in Newfoundland - Divorce obtained in foreign jurisdiction after brief residency - Period not sufficient for party to acquire actual domicile in foreign jurisdiction - Foreign divorce not recognized - (Newfoundland Court of Appeal).

Conflict of Laws - Topic 2101

Family law - Divorce - General - Family Relief Act - Dependant of deceased - Deceased obtained divorce from plaintiff in foreign jurisdiction in which plaintiff made claim for relief - Plaintiff estopped from impugning jurisdiction of foreign tribunal and therefore could not deny surrender of dependency rights - However, under section 5 of Family Relief Act, court must make its own inquiries and accordingly may pass on validity of foreign divorce - The Newfoundland Court of Appeal held divorce invalid and therefore plaintiff is widow of deceased and entitled to benefit of Family Relief Act.

Conflict of Laws - Topic 2127

Family law - Divorce - Recognition of foreign divorce - Sufficiency of foreign domicile - Jurisdiction - Domicile of married couple only test of divorce jurisdiction - Domicile must be actual and not casual or a transitory one for purpose of acquiring fictional status to obtain divorce - Domicile of parties in Newfoundland - Divorce obtained in foreign jurisdiction after brief residency - Period not sufficient for party to acquire actual domicile in foreign jurisdiction - Foreign divorce not recognized.

Cases Noticed:

Schibsby v. Westenholtz (1870), L.R. 6 Q.B. 155, folld.

Thompson v. Crawford, [1932] 2 D.L.R. 466, dist.

Burnfiel v. Burnfiel, [1926] 1 W.W.R. 657, folld.

LeMesurier v. LeMesurier, [1895] A.C. 517; [1895-9] All E.R.Rep. 836, folld.

Wilson v. Wilson (1872), L.R. 2 P. & D. 435, folld.

Statutes Noticed:

Family Relief Act, S., Nfld. 1962, sect. 3(1), sect. 3(2), sect. 5(1), sect. 5(2).

Counsel:

Noel H.A. Goodridge, for the plaintiff, Marion Downton;

R.W. Bartlett, Q.C., for the defendant, The Royal Trust Company;

G.L. Steele, for the defendant, Lorraine Nada Downton.