Powell v. Cockburn,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Laskin, C.J.C., Judson, Spence, Dickson and Beetz, JJ.
• Citation: (1976), 8 N.R. 215 (SCC),22 RFL 155,[1977] 2 SCR 218,[1976] SCJ No 66 (QL),68 DLR (3d) 700,8 NR 215,1976 CanLII 29 (SCC),[1976] CarswellOnt 114
• Court: Supreme Court (Canada)
• Date: 07 May 1975

Powell v. Cockburn (1976), 8 N.R. 215 (SCC)

MLB headnote and full text

Powell v. Cockburn

Indexed As: Powell v. Cockburn

Supreme Court of Canada

Laskin, C.J.C., Judson, Spence, Dickson and Beetz, JJ.

April 1, 1976.

Summary:

This case arose out of an action for a declaration that a marriage was void. A husband commenced an action in Ontario to declare his marriage void because of a prior subsisting marriage by his wife at the time of their marriage. The wife claimed that her previous marriage was dissolved by a divorce decree. The wife was married for the first time in New York City in 1944. The husband of the wife's first marriage obtained a divorce in the State of Michigan in 1947. In order to induce the Michigan court to take jurisdiction the man falsely represented that he was a resident to the State of Michigan. The wife married again in Ontario in 1951. The husband of the 1951 marriage claimed that his marriage was void because the Michigan divorce decree was invalid in Ontario. An Ontario trial court judge allowed the husband's action for a declaration that his marriage was void. The Ontario trial court held that the Michigan divorce decree was invalid in Ontario because the divorce decree was fraudulently obtained. In addition, the Ontario trial court held that the wife's first husband was domiciled in Ontario when he petitioned the Michigan court for divorce in 1947.

On appeal to the Ontario Court of Appeal the appeal was allowed and the judgment of the trial court was set aside. The Ontario Court of Appeal held that there was insufficient evidence to support the findings of the trial judge.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgment of the Ontario Court of Appeal was set aside and the judgment of the trial court was restored. The Supreme Court of Canada held that the Michigan divorce was invalid in Canada and, accordingly, the 1951 marriage was void. The Supreme Court of Canada refused to disturb the finding by the trial judge that the husband fraudulently induced the Michigan court to take jurisdiction. The Supreme Court of Canada stated that fraud going to jurisdiction is a ground upon which a divorce decree granted in one state can be impeached in a foreign state - see paragraph 26.

The respondent wife in the Supreme Court of Canada requested leave to claim maintenance pursuant to s. 1 of the Matrimonial Causes Act in the event that her marriage was declared void. The Supreme Court of Canada interpreted s. 1 of the Matrimonial Causes Act and held that no distinction should be made between void and voidable marriages. The Supreme Court of Canada held that the wife was entitled to claim maintenance pursuant to s. 1 of the Matrimonial Causes Act. The Supreme Court of Canada referred the maintenance claim to the Ontario Supreme Court for a decision on the merits.

Conflict of Laws - Topic 2130

Family law - Divorce - Recognition of foreign divorce decrees - Decree obtained by fraud going to jurisdiction - A husband falsely represented that he was a resident of the State of Michigan and was granted a divorce decree by the State of Michigan - The Supreme Court of Canada held that the divorce decree was invalid in Canada - The Supreme Court of Canada refused to disturb a finding by a trial judge that the husband fraudulently induced the Michigan courts to take jurisdiction - The Supreme Court of Canada stated that fraud going to jurisdiction is a ground upon which a divorce decree granted by a state can be impeached in a foreign state - See paragraph 26.

Family Law - Topic 2247

Support and maintenance - Jurisdiction to order maintenance where a marriage is void or voidable - A wife claimed maintenance pursuant to s. 1 of the Ontario Matrimonial Causes Act - A husband opposed the wife's claim on the ground that their marriage was declared void because of a prior subsisting marriage by the wife - The Supreme Court of Canada interpreted s. 1 of the Ontario Matrimonial Causes Act and held that the wife was entitled to claim maintenance against the husband - The Supreme Court of Canada stated that for purposes of a claim under the Matrimonial Causes Act no distinction should be made between void and voidable marriages - See paragraphs 27 to 30.

Family Law - Topic 4000

Divorce - Corollary relief - Maintenance - General principles - The Supreme Court of Canada stated that a husband is asked to contribute to the economic support of a woman after the marriage relationship ends to compensate her for economic opportunities foregone - See paragraph 29.

Family Law - Topic 2207

Support and maintenance - Common law rights - The Supreme Court of Canada stated that at common law the courts could not order maintenance to a wife who was a party to a voidable or void marriage - See paragraph 29.

Evidence - Topic 2377

Presumptions - Legal effect of presumptions - The Supreme Court of Canada stated that the effect of a presumption is to impose a duty on the opposite party to adduce some evidence - See paragraph 13 - The Supreme Court of Canada stated that successive presumptions may impose an alternating duty to produce evidence from one party to the other - See paragraph 13 - The Supreme Court of Canada stated that such duties to produce evidence are unrelated to the ultimate burden of proof - See paragraph 14.

Words and Phrases

Nullity - The Supreme Court of Canada discussed the meaning of the word "nullity" as found in s. 1 of the Ontario Matrimonial Causes Act - See paragraphs 27 to 30.

Cases Noticed:

LeMesurier v. LeMesurier, [1895] A.C. 517, refd to. [para. 15].

Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.), refd to. [para. 15].

Armitage v. Attorney General, [1960] P. 135, refd to. [para. 15].

Travers v. Holley, [1953] P. 246, refd to. [para. 16].

Bater v. Bater, [1906] P. 209, dist. [para. 18].

Crowe v. Crowe (1937), 157 L.T. 557, 558, folld. [para. 18].

Bonaparte v. Bonaparte, [1892] P. 402, folld. [para. 18].

Shaw v. Gould (1868), L.R. 3 E. & I. App. 55, refd to. [para. 18].

Pemberton v. Hughes, [1899] 1 Ch. 781, folld. [para. 19].

Harvey v. Farnie (1880), 5 P.D. 153, refd to. [para. 20].

Salvesen v. Administrator of Austrian Property, [1927] A.C. 641, folld. [para. 21].

MacAlpine v. MacAlpine, [1958] P. 35, folld. [para. 22].

Middleton v. Middleton, [1967] P. 62, folld. [para. 23].

Williams v. North Carolina (1944), 325 U.S. 226, folld. [para. 24].

Ramsay v. Ramsay (1913), 108 L.T. 382 (Prob. D.), folld. [para. 29].

Barret v. Barret, [1934] O.R. 347 (C.A.), folld. [para. 29].

Statutes Noticed:

Matrimonial Causes Act, R.S.O. 1970, c. 265, sect. 1 [para. 28].

Counsel:

John Sopinka, Q.C. and H.R. Park, for the appellant;

E.A. Cherniak, Q.C. and G.A. Ste-Marie, for the respondent.

This appeal was heard by the Supreme Court of Canada at Ottawa, Ontario on May 7, 1975. Judgment was delivered by the Supreme Court of Canada on April 1, 1976 and the following opinions were filed:

DICKSON, J. - see paragraphs 1 to 31.

JUDSON, J. - dissenting, see paragraph 32.

LASKIN, C.J.C., SPENCE, and BEETZ, JJ., concurred with DICKSON, J.