B. Jurisdiction over Divorce

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 174-185

Contenidos

• 1) Introduction.
• 2) Definition of "Court".
• 3) Exercise of Jurisdiction by Judge Alone.
• 4) Jurisdiction in Divorce Proceedings.
• a) Basic Statutory Criteria.
• b) Transfer of Divorce Proceeding to Another Province.
• c) Competing Foreign Proceeding.
• 5) Jurisdiction in Corollary Relief Proceedings.
• a) Basic Statutory Criteria.
• b) Transfer of Corollary Relief Proceeding to Another Province.
• 6) Jurisdiction in Variation Proceedings.
• a) Basic Statutory Criteria.
• b) Transfer of Variation Proceeding to Another Province.
• c) Variation of Foreign Orders.
• 7) Ordinarily Resident.

Page 174

1) Introduction

Sections 3 to 7 of the current Divorce Act include detailed provisions respecting the exercise of judicial jurisdiction over a "divorce proceeding," "corollary relief proceeding," or "variation proceeding." Each of these terms bears a technical meaning that is defined in section 2(1) of the Act. Once jurisdiction has been established, the doctrine of forum non conveniens allows a defendant to contest a court’s jurisdiction on the basis that another, more appropriate, forum exists.²

Page 175

2) Definition of "Court"

The definition of "court" in section 2(1) of the Divorce Act designates a particular court in each province or territory that has jurisdiction to entertain proceedings under the Act. A designated court must be presided over by federally appointed judges. This reflects the constitutional limitations imposed on both the Parliament of Canada and the provincial legislatures by section 96 of the Constitution Act, 1867.³

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) Jurisdiction in Divorce Proceedings

a) Basic Statutory Criteria

Pursuant to section 3(1) of the Divorce Act, a court of a province, as defined in section 2(1), has jurisdiction to hear and determine an application for divorce and any accompanying application for corollary relief by way of spousal or child support or custody or access, if either spouse has been ordinarily resident within the province for at least one year immediately preceding the commencement of the proceeding.⁴There is a potential conflict of jurisdiction if the one spouse’s ordinary residence has been in one province or territory and the other spouse’s ordinary residence has been in another. If, for example, the husband had always lived in Ontario but his wife, after separation, returned to her home province of Saskatchewan, where she has been living for the past year, the Ontario Superior Court of Justice as well as the Saskatchewan Court of Queen’s Bench could deal with a divorce petition filed by either spouse. To avoid any such judicial conflict, section 3(2) of the Divorce Act provides that, if petitions have been filed in two courts that otherwise would have jurisdiction under section 3(1), the first in time prevails if it is not discontinued within thirty days of its commencement; thus the second proceeding shall be deemed to be discontinued, and the court of the province or territory in which the first petition was filed will assume exclusive jurisdiction over the divorce.⁵If both petitions have been filed on the same

Page 176

day, the conflict of judicial jurisdiction is resolved by exclusive jurisdiction being vested in the Federal Court.⁶Before granting a divorce, a court has to receive a correctly dated clearance certificate pursuant to the Central Registry of Divorce Proceedings Regulation⁷in order to determine that the court has exclusive jurisdiction to deal with the divorce proceeding.⁸Section 3(2) of the Divorce Act does not apply when divorce petitions have been filed in two different registries in the same province. In that event, the appropriate course of action may be to consolidate the two proceedings.⁹There is no constitutional right to a divorce that allows a court to reduce or eliminate the one-year ordinary residence requirement imposed by section 3(1) of the Divorce Act.¹⁰The imposition of a one-year ordinary residence requirement under section 3(1) of the Divorce Act does not contravene the mobility right guaranteed to every citizen of Canada by section 6(2) of the Canadian Charter of Rights and Freedoms,¹¹ nor the right to life, liberty, and security of the person that is guaranteed under section 7 of the Charter.¹²Where jurisdiction over a divorce petition arises pursuant to section 3(1) of the Divorce Act, a Canadian court may grant orders for spousal support, child custody, and child support even though the applicant and children live abroad. A Canadian court may decline to exercise its jurisdiction where there is another forum that is more appropriate. Factors that a court may take into account in addressing the "forum conveniens" include:

· the location of the majority of the parties;

· the location of key witnesses and evidence;

· contractual provisions that specify applicable law or accord jurisdiction;

· the avoidance of a multiplicity of proceedings;

· the applicable law and its weight in comparison to the factual questions to be decided;

· geographical factors suggesting the natural forum;

· whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court; and

· enforceability.¹³

Page 177

b) Transfer of Divorce Proceeding to Another Province

A court that is seized of jurisdiction under section 3 of the Divorce Act has the discretionary power to transfer the "divorce proceeding" to a competent court in another province, if the divorce proceeding includes a contested application for an interim or permanent custody and access order and the child of the marriage is most substantially connected with the province to which the transfer is contemplated.¹⁴In determining whether a child is substantially connected with another province and whether the balance of convenience favours a transfer of jurisdiction to a court in that province, the judgment of Warren J in Chung v Fung,¹⁵cites the late Professor James G McLeod,¹⁶who distilled the following relevant factors from Canadian caselaw:

1) the presence of the child in the jurisdiction;

2) the length of residence in each competing jurisdiction;

3) the strength of the child’s bonds to persons and circumstances in each province;

4) whether the removal was wrongful, that is, unilateral;

5) whether the removal was justified in light of abuse directed at the child by the parent remaining in the other province;

6) the behaviour of the parents towards compliance with interim custody orders;

7) the province where evidence of the child’s present circumstances is most readily available; and

8) the province where the issue of custody can be most easily and cheaply determined.

The application for transfer must be made to the court in which the divorce proceedings were commenced and not the court to which the transfer

Page 178

is requested.¹⁷The primary factor in analyzing the facts of the case is the best interests of the child; a secondary factor is the proper administration of justice.¹⁸Section 6 empowers but does not compel a transfer to be ordered.¹⁹The word "may" rather than "shall" in matters affecting custody signifies a judicial discretion that is exercisable having regard to the best interests of the child.²⁰A transfer should be denied where the best interests of the child would not be served by a transfer.²¹The transfer jurisdiction conferred by section 6(1) of the Divorce Act may be exercised on the application of a spouse or by the court acting on its own motion. Pursuant to section 6(4), where a transfer of the divorce proceeding has been made under the authority of section 6(1), the court to which the divorce proceeding has been transferred has exclusive jurisdiction to hear and determine the proceeding. Although section 6 of the Divorce Act enables a court to transfer a petition for divorce instituted in its jurisdiction to another provincial jurisdiction, it does not permit a court to transfer to its jurisdiction a petition commenced in another province.²²

c) Competing Foreign Proceeding

While conflicts in Canadian provincial divorce jurisdiction are resolved by section 3(2) of the Divorce Act, whereby the first to be initiated prevails, this is not the dominant factor when there are contemporaneous proceedings in a Canadian province and in a foreign jurisdiction. The principles applicable to an injunction to restrain foreign proceedings and those applicable to a stay of the Canadian proceedings in favour of a foreign court are not the same. A party should not be enjoined from pursuing foreign proceedings that are not vexatious or oppressive. Since the court is concerned with the ends of justice, account must not only be taken of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he or she is not allowed to do so. Whether the Canadian proceedings should be stayed depends on whether the foreign court provides an alternative forum that is clearly or distinctly more appropriate. In deciding which of two jurisdictions offer the more convenient forum, the court should

Page 179

ordinarily consider which jurisdiction can deal more comprehensively with the issues in dispute. It is not prima facie unjust or vexatious to commence two actions about the same issues in different jurisdictions. Furthermore, a court will lean against interference where the plaintiff in one jurisdiction is the defendant in the other.²³

5) Jurisdiction in Corollary Relief Proceedings

a) Basic Statutory Criteria

Section 2(1) of the Divorce Act defines "a corollary relief proceeding" as "a proceeding in a court in which either or both former spouses seek a support order or a custody order or both such orders." Sections 3(1) and 4 of the Divorce Act...