Thurber v. Thurber, (2002) 322 A.R. 242 (QB)

• Judge: McMahon, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 02, 2002
• Citations: (2002), 322 A.R. 242 (QB);2002 ABQB 727

Thurber v. Thurber (2002), 322 A.R. 242 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AU.048

Paula Thurber (plaintiff/applicant) v. Lee Thurber (defendant)

(No. 4801-113650; 2002 ABQB 727)

Indexed As: Thurber v. Thurber

Alberta Court of Queen's Bench

Judicial District of Calgary

McMahon, J.

August 6, 2002.

Summary:

The wife applied for a declaration that s. 3(1) of the Divorce Act was unconstitutional.

The Alberta Court of Queen's Bench dismissed the application. The court held that s. 3(1) did not violate either s. 6 or s. 7 of the Canadian Charter of Rights and Freedoms.

Civil Rights - Topic 503

Mobility rights - General - Right to pursue livelihood in any province - Section 3(1) of the Divorce Act provided that the courts of a province had jurisdiction to entertain a party's divorce proceeding when that party had been resident in that province for at least one year - The Alberta Court of Queen's Bench held that s. 3(1) of the Act did not violate s. 6(2) of the Charter - There was no evidence that the purpose of s. 3(1) was to limit a person from moving to another province or from gaining a livelihood there - Nor was there evidence that would indicate that the effect of s. 3(1) was to prevent the mobility of persons within Canada or to impair their ability to pursue a livelihood in the province of their choice - See paragraphs 8 to 12.

Civil Rights - Topic 504

Mobility rights - General - Right to take up residence in any province - [See Civil Rights - Topic 503 ].

Civil Rights - Topic 786

Liberty - Particular rights - Divorce - Section 3(1) of the Divorce Act provided that the courts of a province had jurisdiction to entertain a party's divorce proceeding when that party had been resident in that province for at least one year - The plaintiff argued that s. 3(1) violated her liberty interest protected by s. 7 of the Charter in that it interfered with her decision to become divorced - The Alberta Court of Queen's Bench rejected the argument - See paragraphs 14 to 22.

Civil Rights - Topic 1208.2

Security of the person - General - Divorce - Section 3(1) of the Divorce Act provided that the courts of a province had jurisdiction to entertain a party's divorce proceeding when that party had been resident in that province for at least one year - The plaintiff argued that s. 3(1) violated her security interest protected by s. 7 of the Charter - She suggested that the restraint on getting a divorce imposed by the one-year ordinary residence requirement of s. 3(1) could cause "state-imposed psychological stress" because it could force the parties to remain married even though they wished to be divorced - The Alberta Court of Queen's Bench rejected the argument - See paragraphs 23 to 29.

Cases Noticed:

Winmill v. Winmill, [1974] 1 F.C. 686; 5 N.R. 159 (F.C.A.), refd to. [para. 5].

Jadavji v. Jadavji, [2001] B.C.T.C. 767 (S.C. Master), affd. [2001] B.C.T.C. 1027 (S.C.), refd to. [para. 5].

Koch v. Koch (1985), 43 Sask.R. 230 (Q.B.), refd to. [para. 10].

Allman et al. v. Commissioner of the Northwest Territories (1983), 50 A.R. 161 (N.W.T.C.A.), leave to appeal refused [1984] 1 S.C.R. v; 55 N.R. 394; 53 A.R. 160, consd. [para. 11].

Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, consd. [para. 12].

Canadian Egg Marketing Agency v. Richardson - see Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al.

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, consd. [para. 13].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, consd. [para. 16].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, consd. [para. 20].

Vaugeois v. Red Deer (City) (1999), 240 A.R. 89 (Q.B.), consd. [para. 21].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, consd. [para. 25].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 28].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 28].

Moysa v. Labour Relations Board (Alta.) et al., [1989] 1 S.C.R. 1572; 96 N.R. 70; 97 A.R. 368, refd to. [para. 28].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 6 [para. 8]; sect. 7 [para. 13].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 3(1) [para. 1].

Counsel:

Diann P. Castle, for the plaintiff/applicant;

None disclosed, for the defendant.

McMahon, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, heard this application on August 2, 2002, and delivered the following reasons for judgment on August 6, 2002.