Rothgiesser v. Rothgiesser, (2000) 128 O.A.C. 302 (CA)

• Judge: Labrosse, Doherty and O'Connor, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 30, 1999
• Jurisdiction: Ontario
• Citations: (2000), 128 O.A.C. 302 (CA)

Rothgiesser v. Rothgiesser (2000), 128 O.A.C. 302 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JA.018

Claude Henry Rothgiesser (appellant/respondent in appeal) v. Shirley Rothgiesser (respondent/appellant)

(C31085)

Indexed As: Rothgiesser v. Rothgiesser

Ontario Court of Appeal

Labrosse, Doherty and O'Connor, JJ.A.

January 12, 2000.

Summary:

The parties were married, separated and divorced in South Africa. The divorce judg­ment provided for custody and child and spousal support. Subsequently, the husband settled in Ontario and applied for custody of one of the children under the Children's Law Reform Act. By consent, the Ontario Court (General Division) granted an order which dealt with custody and child and spousal support (the Lang order). The husband later applied under the Divorce Act to vary the Lang order to negate his spousal support obligation. He succeeded (the Swinton or­der). The wife appealed on the grounds that the Ontario court had no jurisdiction to terminate the spousal support or in the al­ternative, that there was no merit to the husband's application.

The Ontario Court of Appeal allowed the appeal. The Lang order was made without jurisdiction because the Ontario court had not granted the divorce and could not order support under the Divorce Act, nor could the parties confer jurisdiction on the court by consent. The Swinton order could not vary the Lang order because the Lang order was made without jurisdiction and a Canadian court had no jurisdiction to vary a foreign spousal support order. Jurisdiction to vary a foreign spousal support order could only be derived from provincial legislation respecting enforcement of support orders.

Conflict of Laws - Topic 2222

Family law - Maintenance - Jurisdiction of court - [See both Family Law - Topic 4001 ].

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance and awards - Jurisdiction of a court to grant maintenance - The parties were married, separated and divorced in South Africa - The divorce judgment provided for custody and child and spousal support -Subsequently, the husband settled in On­tario and sought custody of one child under the Children's Law Reform Act - By consent, the court dealt with custody and child and spousal support (the Lang order) - The husband later applied under the Divorce Act to vary the Lang order to terminate his spousal support obligation - He succeeded (the Swinton order) - The wife appealed - The Ontario Court of Appeal allowed the appeal - The Lang order was made without jurisdiction be­cause the court had not granted the divorce and could not order support under the Divorce Act; nor could the parties confer jurisdiction on the court by consent - The Swinton order could not vary the Lang order because the Lang order was made without jurisdiction and a Canadian court had no jurisdiction to vary a foreign spousal support order.

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance and awards - Jurisdiction of a court to grant maintenance - Section 4(1) of the Divorce Act was amended to state: "Juris­diction in corollary relief proceedings - (1) A court in a province has jurisdiction to hear and determine a corollary relief pro­ceeding if (a) either former spouse is or­dinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court" - The Ontario Court of Ap­peal stated that "Whereas Parliament had previously limited jurisdiction to the court that had granted the divorce, the amend­ment extended the jurisdiction by authoriz­ing a Canadian court to hear a corollary relief proceeding if either spouse were ordinarily resident in the province or if both former spouses accepted the jurisdic­tion of the court. Parliament did not intend to give Canadian courts jurisdiction over foreign divorces." - See paragraphs 57 to 59.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of peri­odic payments or lump sum award - The parties were married, separated and di­vorced in South Africa - Ontario courts made orders respecting spousal support on two occasions - The wife appealed the last order on the basis that it was made without jurisdiction and, alternatively, on the merits - The Ontario Court of Appeal allowed the appeal on the basis that both orders were made without jurisdiction - On the alterna­tive ground, the court commented that following an 18 year traditional marriage, the parties entered into an agreement under which they waived for all times their right to apply for a variation of spousal support except for certain specific conditions that did not apply - See paragraphs 52 to 56.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of - Jurisdiction - The Ontario Court of Appeal held that jurisdiction to vary a foreign spousal support order could only be de­rived from provincial legislation respecting enforcement of support orders - See para­graphs 47 to 50.

Practice - Topic 5408.1

Judgments and orders - General - Col­lateral attack - The Ontario Court of Ap­peal stated that collateral attacks on court orders were permitted where it was alleged that the order was made without jurisdic­tion - See paragraph 25.

Cases Noticed:

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97, refd to. [para. 25].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97; 14 Alta. L.R.(3d) 1; 25 C.R.(4th) 137, refd to. [para. 25].

Lietz v. Lietz (1990), 111 N.B.R.(2d) 128; 277 A.P.R. 128 (Fam. Div.), refd to. [para. 29].

Droit de la famille - 770, [1990] R.J.Q. 581 (Que. S.C.), refd to. [para. 29].

Kalsi v. Kalsi (1992), 131 A.R. 102; 41 R.F.L.(3d) 201 (C.A.), refd to. [para. 29].

Dulles Settlement, Re; Dulles (An Infant) v. Vidler, [1950] All E.R. 1013 (C.A.), refd to. [para. 35].

Cornwall (Township) v. Ottawa & New York Railway Co. et al. (1916), 52 S.C.R. 466, refd to. [para. 36].

Hinde v. Hinde, [1953] 1 All E.R. 171 (C.A.), refd to. [para. 37].

Byrn v. Mackin (1983), 32 R.F.L.(2d) 207 (Que. C.A.), refd to. [para. 37].

Patterson v. Torrance (1994), 92 Man.R.(2d) 116; 111 D.L.R.(4th) 477 (C.A.), refd to. [para. 37].

Trotter v. Trotter (1992), 90 D.L.R.(4th) 554 (Ont. Gen. Div.), refd to. [para. 48].

Smibert v. Smibert (1996), 147 Sask.R. 149 (Q.B. Fam. Div.), refd to. [para. 49].

Statutes Noticed:

Divorce Act, R.S.C. 1995, c. 3 (2nd Supp.), sect. 4 [para. 16]; sect. 4(1) [para. 58]; sect. 5(1) [para. 16].

Authors and Works Noticed:

Castel, Jean-Gabriel, Canadian Conflict of Laws (4th Ed. 1997), p. 417 [para. 46].

Hovius, Berend, Family Law: Cases, Notes and Materials (4th Ed. 1996), p. 482 [para. 46].

Payne, Julien, Divorce (4th Ed. 1996), generally [para. 46].

Counsel:

Stephen M. Grant and Sarah M. Bouldy, for the appellant;

Malcolm C. Kronby, for the respondent.

This appeal was heard on September 30, 1999, by Labrosse, Doherty and O'Connor, JJ.A., of the Ontario Court of Appeal. Labrosse, J.A., delivered the fol­lowing judg­ment for the Court of Appeal on January 12, 2000.