Downton v. Royal Trust Co. et al., (1972) 3 Nfld. & P.E.I.R. 576 (SCC)

• Judge: Ritchie, Hall, Spence, Pigeon and Laskin, JJ.
• Court: Supreme Court of Canada
• Case Date: Friday December 22, 1972
• Jurisdiction: Canada (Federal)
• Citations: (1972), 3 Nfld. & P.E.I.R. 576 (SCC);1972 CanLII 148 (SCC);3 Nfld & PEIR 576;15 RFL 43;[1973] SCR 437;9 CCC (2d) 449;34 DLR (3d) 265;[1973] SCR 859;[1973] SCR 747;1972 CanLII 194 (SCC);34 DLR (3d) 403;32 DLR (3d) 571;[1973] SCR 303;32 DLR (3d) 185;1972 CanLII 147 (SCC);1972 CanLII 160 (SCC);1972 CanLII 165 (SCC);1972 CanLII 193 (SCC);[1974] SCR 128

Downton v. Royal Trust (1972), 3 Nfld. & P.E.I.R. 576 (SCC)

MLB headnote and full text

Downton v. Royal Trust Company et al.

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

Supreme Court of Canada

Ritchie, Hall, Spence, Pigeon and Laskin, JJ.

December 22, 1972.

Summary:

This action arose out of a claim of the wife of a deceased against the deceased's estate for maintenance and support of herself and two children of the deceased under the Family Relief Act. The deceased divorced the wife in Nevada after a brief qualifying residency. The wife submitted to the foreign jurisdiction for the purpose of incorporating into the divorce decree the terms of a separation agreement entered into in Newfoundland. The foreign divorce was invalid in Newfoundland, where the deceased and his wife were domiciled. Upon the deceased's death the wife made an application under the Family Relief Act against his estate and his second wife for maintenance and support. She was required to attack the validity of the foreign divorce in order to establish herself as the deceased's widow and a dependant. The trial could held, 1 Nfld. & P.E.I.R. 203, that, since the wife made a claim for relief in the foreign jurisdiction, she was estopped from attacking the validity of the foreign divorce. However, the trial court held that the court could on its own motion under section 5 of the Family Relief Act examine the validity of the foreign divorce. The trial court held the divorce invalid and allowed the application. The Supreme Court of Newfoundland on Appeal, 1 Nfld. & P.E.I.R. 528, upheld the trial court's decision that the divorce was invalid but overruled the trial court's decision that section 5 of the Family Relief Act permitted the court to rule on the validity of the divorce. The Supreme Court of Canada allowed the wife's appeal and restored the decision of the trial court.

The Supreme Court of Canada stated that a person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so. The Supreme Court of Canada held that the wife submitted to the foreign jurisdiction only to protect her existing benefits pursuant to the separation agreement made in Newfoundland. The foreign divorce decree did not affect her enforcement of the separation terms in Newfoundland. The foreign divorce decree did not affect her enforcement of the separation terms in Newfoundland, since she would not have to rely on the decree in enforcing them. Further, the wife did not rely on the divorce decree or accept any benefits under it. The Supreme Court of Canada held that it was equitable in the circumstances to allow her to attack the validity of the foreign divorce.

Conflict of Laws - Topic 2127

Family law - Divorce, recognition of foreign decrees - Sufficiency of foreign domicile - Estoppel - Effect of wife submitting to a foreign jurisdiction (Nevada) in which husband sought a divorce decree - Divorce invalid - Wife submitted to foreign jurisdiction to protect existing benefits - Wife did not rely on foreign divorce or accept benefits under it - Supreme Court of Canada held wife could attack foreign divorce decree in a maintenance proceeding.

Estoppel - Topic 390

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Jurisdiction of court in previous action - Family law - Dependant's relief legislation - Application by widow against estate of husband for maintenance - Widow was previously divorced by deceased husband in state of Nevada - Widow made a claim for relief in Nevada - Foreign divorce invalid - Whether applicant precluded from impugning the foreign divorce in order to establish herself as a dependant of the deceased - Supreme Court of Canada held the applicant submitted to the foreign jurisdiction to protect existing benefits under a separation agreement in Newfoundland - Supreme Court of Canada held applicant did not rely on the foreign divorce or accept benefits under it - Supreme Court of Canada held applicant could attack the foreign divorce and granted application.

Cases Noticed:

Re Capon, [1956] 2 O.R. 83, approved.

In re Graham Estate, [1937] 3 W.W.R. 413 (B.C.), refd to.

Re Plummer Estate, [1942] 1 D.L.R. 34, refd to.

Re Jones (1960), 25 D.L.R.(2d) 595, refd to.

Re Tucker (1953), 8 W.W.R.(N.S.) 184 (B.C.C.A.), refd to.

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

Stevens v. Fisk (1885), Cameron Sup. Ct. Cas. 392, folld.

Re Lesser and Lesser (1968), 66 D.L.R.(2d) 486, rev'd 67 D.L.R.(2d) 410, folld.

Stevens v. Falchi, [1938] S.C.R. 354, dist.

Le Mesurier v. Le Mesurier, [1895] A.C. 517, refd to.

In re Fife v. Fife (1964), 49 D.L.R.(2d) 648, refd to.

Swaizie v. Swaizie (1899), 31 O.R. 324, rev'g 31 O.R. 81, refd to.

Burpee v. Burpee, [1929] 2 W.W.R. 128 (B.C.), refd to.

In re Williams and Ancient Order of United Workmen (1907), 14 O.L.R. 482, refd to.

Schwebel v. Schwebel (1970), 10 D.L.R.(3d) 742 (Ont.), refd to.

Statutes Noticed:

Family Relief Act, S. Nfld. 1962, c. 56, sect. 2(3), sect. 3, sect. 5.

Counsel:

W.G. Burke-Robertson, Q.C., for the appellant;

B.A. Crane, for the respondent.