Downton v. Royal Trust Co. et al., (1971) 1 Nfld. & P.E.I.R. 528 (NFCA)

• Judge: Puddester, Higgins and Mifflin, JJ.
• Court: Court of Appeal (Newfoundland)
• Case Date: August 17, 1971
• Jurisdiction: Newfoundland and Labrador
• Citations: (1971), 1 Nfld. & P.E.I.R. 528 (NFCA)

Downton v. Royal Trust (1971), 1 Nfld. & P.E.I.R. 528 (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

On Appeal

Puddester, Higgins and Mifflin, JJ.

August 17, 1971.

Summary:

Appeal Court allowed the appeal and reversed the decision of the Trial Court which awarded the applicant $20,000 on an application for maintenance out of deceased's estate under the Family Relief Act. The deceased obtained a divorce from the applicant in Nevada in which the applicant made a claim for relief. On the application the applicant attacked the validity of the foreign divorce in order to qualify as a dependant under the Family Relief Act. The Trial Court held that since applicant submitted to the foreign jurisdiction she was estopped from impugning the jurisdiction of the foreign tribunal on the application. However, the trial Court held that Section 5(2) of the Act permitted an inquiry into the validity of the foreign divorce on the Court's own motion and held the divorce invalid and that the applicant was a dependant of the deceased in Newfoundland.

Appeal Court confirmed the decision of the trial Court that the applicant was estopped from impugning the jurisdiction of the foreign tribunal but overruled the decision of the trial Court on the interpretation of Section 5(2). Appeal Court held that the section confined the Court's inquiry to whether a dependant should be granted relief and overruled the decision of the trial Court to inquire as to whether the plaintiff was a dependant.

Conflict of Laws - Topic 646

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

Conflict of Laws - Topic 2101

Family law - Divorce - General - Family relief act, section 5 - Application by former wife for relief as dependant of deceased who had divorced applicant in foreign jurisdiction in which applicant made a claim for relief - The Newfoundland Court of Appeal held applicant estopped from impugning jurisdiction of foreign tribunal and therefore could not deny surrender of dependency rights - Appeal Court held that Trial Court erred in interpreting section 5(2) of Family Relief Act to permit an inquiry into validity of foreign divorce and whether applicant was dependant of deceased - Appeal Court held that section 5 confined inquiry to whether a dependant should be granted relief - Application dismissed.

Cases Noticed:

Re Capon, [1965] 2 O.R. 83, folld.

Re Williams and Ancient Order of United Workmen, (1907), 14 O.L.R. 482, folld.

Cases Cited In Argument But Not Noticed:

Re Anderson, [1934] 2 D.L.R. 490.

Re Banks (1918), 42 O.L.R. 64.

Brodie v. Brodie (1861), 2 Sw. & T. 259.

Burnfiel v. Burnfiel, [1925] 2 W.W.R. 629.

Re Capon. [1965] 2 O.R. 83.

Carter v. Patrick, [1935] 1 W.W.R. 383.

Re Chesaitis (1966), 58 D.L.R. 769.

In re Graham Estate, [1937] 3 W.W.R. 413.

Hyman v. Hyman, [1929] A.C. 601.

Re Jones (1961), 25 D.L.R. 595.

Re Lavis, [1959] O.W.N. 291.

LeMesurier v. LeMesurier, [1895] A.C. 517.

Re Lesser & Lesser, [1968] 1 O.R. 388.

Pitt v. Pitt, 1 Court Sess. Cas. 3d 106.

Stephens v. Falchi, [1938] S.C.R. 354.

Stevens v. Fisk (1885), 8 L.N. 42.

Swaizie v. Swaizie (1899), 31 O.R. 324.

In re Williams (1907), 16 O.L.R. 482.

Wilson v. Wilson, 10 Court Sess. Cas. 3d 573.

Zycklinski v. Zycklinski (1862), 2 Sw. & T. 420.

Statutes Noticed:

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

Counsel:

Geoffrey L. Steele, for the plaintiff respondent;

Noel H.A. Goodridge, for the first defendant respondent;

W. Gary Rowe, for the second defendant appellant.