Theriault v. Theriault, (2014) 461 Sask.R. 221 (QB)

• Judge: Turcotte, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 24, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 461 Sask.R. 221 (QB);2014 SKQB 423

Theriault v. Theriault (2014), 461 Sask.R. 221 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.027

Gwen Marie Theriault (petitioner) v. Kenneth Joseph Theriault (respondent)

(2014 DIV No. 3; 2014 SKQB 423)

Indexed As: Theriault v. Theriault

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Turcotte, J.

December 24, 2014.

Summary:

The wife's petition for divorce, including claims for spousal support and a division of family property, was filed in Saskatchewan on January 2, 2014. The husband applied for a divorce in Japan, where he lived, on January 14, 2014. The husband conceded that the Saskatchewan court had jurisdiction for the divorce proceeding, as the wife was ordinarily resident in Saskatchewan for at least one year preceding her claim. However, he asserted that the court lacked territorial competence regarding the family property claim and sought a transfer of the divorce, spousal support and family property claims to Japan to avoid a multiplicity of actions.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 461 Sask.R. 211, dismissed the application. The husband did not appeal. The wife applied to sever the divorce judgment from the remaining claims. The husband opposed the application, asserting that the court should not pronounce judgment until the court in Japan had an opportunity to address the issue in that jurisdiction.

The Saskatchewan Court of Queen's Bench allowed the wife's application, granting a divorce. The remaining issues were severed and adjourned sine die.

Conflict of Laws - Topic 8

General - Doctrine of comity - The wife petitioned for divorce and corollary relief in Saskatchewan - The husband, who lived in Japan, sought a transfer of the proceeding to Japan - Wilson, J., found that the Saskatchewan court had territorial competence and was the more appropriate jurisdiction - The husband did not appeal - The wife applied to sever the divorce judgment from the remaining claims - The husband opposed the application, asserting that the court should not pronounce judgment until the court in Japan had an opportunity to address the issue in that jurisdiction - The Saskatchewan Court of Queen's Bench allowed the wife's application, granting a divorce - The court rejected the husband's argument that a divorce should not be granted due to the principle of comity and to show respect for the Japanese courts - As there was no judgment or order of the court in Japan in relation to these matters, comity did not apply - Further, Wilson, J., had already determined that this court had jurisdiction - It was "specious to suggest that it would be disrespectful to the Japanese courts for this Court to adjudicate the outstanding issues between the parties" - See paragraphs 7 and 8.

Conflict of Laws - Topic 9201

Practice - General - Comity - General - [See Conflict of Laws - Topic 8 ].

Family Law - Topic 4124

Divorce - Practice - General - Severance of issues - The wife petitioned for divorce and corollary relief in Saskatchewan - The husband, who lived in Japan, sought a transfer of the proceeding to Japan - Wilson, J., found that the Saskatchewan court had territorial competence and was the more appropriate jurisdiction - The husband did not appeal - The wife applied to sever the divorce judgment from the remaining claims - The husband opposed the application, asserting that the court should not pronounce judgment until the court in Japan had an opportunity to address the issue in that jurisdiction - The Saskatchewan Court of Queen's Bench allowed the wife's application, granting a divorce - The court rejected the husband's assertion that severing the divorce judgment would be prejudicial to the husband because "Japan has no system equivalent to alimony" - Any inequality, unfairness or prejudice arising out of differences between the Canadian and Japanese regimes could be addressed in the Saskatchewan court or through the husband's employer's tax equalization policy - This jurisdiction afforded the husband and wife similar rights regarding a claim for spousal support under the Divorce Act - The potential prejudice to the wife of not severing and granting the divorce exceeded that of the husband in severing - Further, granting the divorce and severing the remaining issues would facilitate the parties' ability to deal with the remaining claims in this jurisdiction - See paragraphs 10 to 24.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - [See Family Law - Topic 4124 ].

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - The wife petitioned for divorce and corollary relief in Saskatchewan - The husband, who lived in Japan, sought a transfer of the proceeding to Japan - Wilson, J., found that the Saskatchewan court had territorial competence and was the more appropriate jurisdiction - The husband did not appeal - The wife applied to sever the divorce judgment from the remaining claims - The husband opposed the application, asserting that the court should not pronounce judgment until the court in Japan had an opportunity to address the issue in that jurisdiction - The Saskatchewan Court of Queen's Bench allowed the wife's application, granting a divorce - The husband's opposition to severance and the granting of judgment for divorce was a collateral attack on Wilson, J.'s ruling - The rule against collateral attack prevented a party from challenging the validity of an order in separate proceedings, where that order had not been appealed - See paragraph 9.

Cases Noticed:

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 9].

Behnami v. Mirakhori (2013), 420 Sask.R. 197; 2013 SKQB 177 (Fam. Div.), refd to. [para. 10].

Rimmer v. Adshead (2002), 217 Sask.R. 94; 265 W.A.C. 94; 2002 SKCA 12, refd to. [para. 10].

Virani v. Virani (2006), 228 B.C.A.C. 315; 376 W.A.C. 315; 270 D.L.R.(4th) 532; 2006 BCCA 341, refd to. [para. 19].

Rothgiesser v. Rothgiesser (2000), 128 O.A.C. 302; 183 D.L.R.(4th) 310 (C.A.), refd to. [para. 19].

Wlodarczyk v. Spriggs (2000), 200 Sask.R. 129; 2000 SKQB 468 (Fam. Div.), refd to. [para. 19].

Ruskin v. Dewar (2005), 269 Sask.R. 80; 357 W.A.C. 80; 2005 SKCA 89, refd to. [para. 23].

Royal Trust Co. v. Roberts (H.A.) Group Ltd. et al. (1995), 129 Sask.R. 161 (Q.B.), refd to. [para. 23].

Livesley et al. v. E. Clemens Horst Company, [1924] S.C.R. 605, refd to. [para. 23].

Counsel:

Deidre L. Aldcorn, for the petitioner;

Patrick H. Loran, for the respondent.

This application was heard by Turcotte, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on December 24, 2014.