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Divorce in the Canadian Conflict of Laws: Two Recent Developments
Published online by Cambridge University Press: 09 March 2016
Extract
Two recent cases have added substantially to the Canadian jurisprudence on divorce in the conflict of laws. In one, discussed in Part I of this article, a court of first instance in Alberta initiated what is likely to be a far-reaching change in the rules for the recognition of foreign decrees. In the other, discussed in Part II, the Supreme Court of Canada gave its imprimatur for the first time to the controversial doctrine whereby someone who has obtained an invalid foreign decree may be precluded from denying its validity in a Canadian court. Although the two questions that these cases deal with are quite separate, their treatment by the Alberta Supreme Court and the Supreme Court of Canada shows a common tendency to resolve conflicts problems by rules that are general and flexible rather than precise and arbitrary.
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- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 11 , 1974 , pp. 193 - 219
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- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1974
References
1 [1969] 1 A.C. 33.
2 Recent commentaries on the recognition of divorces in Canada are: Mendes da Costa, , “Some Comments on the Conflicts of Laws Provisions of the Divorce Act, 1968,” (1968) 46 Can. Bar Rev. 252 Google Scholar; Castel, , Conflict of Laws 447–55 (1968)Google Scholar; MacKinnon, , “Conflict of Laws: Recent Divorce Recognition Cases in England and Canada,” (1970) 48 Can. Bar Rev. 716 Google Scholar; Mendes da Costa, , “Divorce and the Conflict of Laws,” in Mendes da Costa, (ed.), Studies in Canadian Family Law 899, 960–84 (1972)Google Scholar (cited here after as “Mendes da Costa”). This article refers throughout to “Canadian” conflicts rules about the recognition of divorces. Technically they are all part of provincial law (except those in the Divorce Act), and so one should refer only to the conflicts rules of each province; but the rules in this area are so similar from one province to the other that one can speak of them as being “Canadian.”
3 R.S.C. 1970, c. D-8.
4 Ibid., s. 6(2).
5 Viccari v. Viccari (197a), 7 R.F.L. 241 (Ont. H.G.); Kish and Ivaskovics v. Director of Vital Statistics, [1973] 2 W.W.R. 678 (Alta. S.C.); Powell v. Cockburn (1973), 33 D.L.R. (3d) 284 (Ont. CA.).
6 [1973] 2 W.W.R. 678 (Alta. S.C.).
7 By the Recognition of Foreign Divorces and Legal Separations Act, 1971.
8 [1895] A.C. 517.
9 [1906] P. 135.
10 [1953] P. 246.
11 Contained in the Divorce Act, ss. 5(1) and 6(1).
12 Some difficulty is caused by the fact that the domicile requirement in the Canadian jurisdiction rules refers to domicile “in Canada,” but the residence requirements refer to residence in the province; presumably both kinds of requirement will be taken to apply to a foreign jurisdiction if Travers v. Holley is relied on.
13 The cases differ about whether the actual residence must be for ten months out of the last year, or for ten months out of the total period of ordinary residence, however long it was: cf. Wood v. Wood (1968), 3 D.L.R. (3d) 527 (Man. Q.B.) and Marsellus v. Marsellus (1970), 13 D.L.R. (3d) 383 (B.C.S.C.) (whole period of ordinary residence) with Hardy v. Hardy (1969), 7 D.L.R. (3d) 307 (Ont. H.C.) (last year only). See Mendes da Costa, 939–42.
14 [1969] 1 A.C. 33.
15 Ibid., 75G-76B, 91B-C, 110A-C.
16 Magurn v. Magurn (1885), 11 O.A.R. 178 (Ont. CA.); Stephens v. Falchi, [1938] S.C.R. 354 (S.C.C.).
17 Wyllie v. Martin, [1931] 3 W.W.R. 465 (B.C.S.C.); Chatenay v. Chatenay, [1938] 3 D.L.R. 379 (B.C.S.C); Walker v. Walker, [1950] 4 D.L.R. 253 (B.C.C.A.); Schwebel v. Ungar, [1965] S.CR. 148, 154 (S.C.C.); Viccari v. Viccari (1972), 7 R.F.L. 241 (Ont. H.C).
18 Bednar and Bednar v. Deputy Registrar-General of Vital Statistics (1960), 24 D.L.R. (2d) 238 (Alta. S.C.); Allarie v. Director of Vital Statistics (1963), 41 D.L.R. (2d) 553 (Alta. S.C); Re Capon (1965), 49 D.L.R. (2d) 675 (Ont. CA.); Januszkiewicz v. Januszkiewicz (1965), 55 D.L.R. (2d) 727 (Man. Q.B.). Travers v. Holley was disapproved in La Pierre v. Walter (1960), 24 D.L.R. (2d) 483 (Alta. S.C), where on the facts it would not have applied anyway. See also Yeger and Duder v. Registrar-General of Vital Statistics (1958), 26 W.W.R. 651 (Alta. S.C).
19 [1973] 2 W.W.R. 678 (Alta. S.C).
20 For comments on Indyka v. Indyka, see: Cheshire and North, Cheshire’s Private International Law 360–69 (8th ed., 1970); Dicey and Morris, The Conflict of Laws (First Supplement to the 8th ed., 1968), at Dicey 315; Morris, , The Conflict of Laws 139–45 (1971)Google Scholar; Bale, (1968) 46 Can. Bar Rev. 113; Latey, (1967) 16 Int’l & Comp. L.Q. 928; Webb, (1967) 16 Int’l & Comp. L.Q. 997; North, (1968) 31 Mod. L. Rev. 257; Lipstein, (1967) 25 Camb. L.J. 182.
21 [1969] 1 A.C. 68D-F.
22 Ibid., 105E.
23 Ibid., 76F-77E (Morris), 111B-F (Pearson).
24 Ibid., 111B.
25 Ibid., 77A (Morris), 111G (Pearson).
26 Ibid., 88D.
27 Ibid., 88G-89A.
28 Angelo v. Angelo, [1968] 1 W.L.R. 401; Brown v. Brown, [1968] P. 518; Welsby v. Welsby, [1970] 1 W.L.R. 877; Alexander v. Alexander, The Times, April 1, 1969; Hornett v. Hornett, [1971] P. 255. See also Nicholson v. Nicholson, [1971] 1 N.S.W.L.R. 1; Bishop v. Bishop, [ 1971 ] 1 N.S.-W.L.R. 300.
29 [1969] 1 A.C. 68D.
30 Ibid., 105E (Wilberforce), 88C (Pearce). See also page 112F (Pearson).
31 [1969] 1 W.L.R. 221.
32 [1970] 2 All E.R. 516.
33 [1969] 1 A.C. 68C-F, 87A, 105E.
34 [1969] P. 119.
35 [1970] P. 198. (The point was conceded in this case.)
36 [1968] 1 W.L.R. 1773.
37 (1970), 114 Sol. Jo. 806.
38 [1959] P. 43.
39 Ibid., 84–85.
40 [1971] P. 322. This is the only English decision on Indyka v. Indyka in a defended case.
41 Ibid., 336A-B.
42 [1969] 1 A.C. 68.
43 [1971] P. 336D.
44 Ibid., 336F.
45 Ibid., 336E-338F.
46 Ibid., 338E-F.
47 Ibid., 339C.
48 Ibid., 338H.
49 The classic instance of this technique is Robinson-Scott v. Robinson-Scott, [1958] P. 71. See also the Kish case itself, [1973] 2 W.W.R. 680.
50 [1973] 2 W.W.R. 693.
51 [1969] P. 119.
52 [1970] P. 198.
53 Nevertheless, academic opinion seems to favour maintaining such a distinction: see MacKinnon, supra note 2, at 735–26; Wade, (1969) 32 Mod. L. Rev. 441, 444; Karsten, (1970) 33 Mod. L. Rev. 205. The objection to cases like Mayfield v. Mayfield and the Kish case, as stated by Cheshire and North (op. cit. supra note 20, at 367) is that the result is “utterly to disregard the lack of jurisdiction [of the foreign court] over the petitioner.” The force of this objection is difficult to appreciate; could it not equally well be said that the result of Indyka v. Indyka itself was utterly to disregard the lack of jurisdiction over the respondent? Why is one result worse than the other? (Admittedly, what the cases do disregard is the lack of any indication in Indyka v. Indyka that connections between the respondent and the jurisdiction are sufficient for recognition; but the result, it is submitted, is not objectionable.)
54 [1969] I W.L.R. 221.
55 [1970] 2 All E.R. 516.
56 [1971] P. 336C.
57 [1973] 2 W.W.R. 693.
58 Munt v. Munt, [1970] 2 All E.R. 516. See also Biskop v. Bishop, [1971] 1 N.S.W.L.R. 300.
59 [1973] 2 W.W.R. 693.
60 See Mendes da Costa, 970–71. See also Peters v. Peters, [1968] P. 275.
61 [1973] 2 W.W.R. 693.
62 Indyka v. Indyka, [1969] 1 A.C. 67G, 90B, 104C, 111E; Messina v. Smith, [1971] P. 335H–36A.
63 In Messina v. Smith, [1971] P. 338H–39A, Ormrod J. suggested that a “quickie” divorce such as that in Mountbatten v. Mountbatten would not be recognized under Indyka v. Indyka, but would be recognized if it were recognized by the country of the domicile.
64 Angelo v. Angelo, [1968] 1 W.L.R. 401; Brown v. Brown, [1968] P. 518; Blair v. Blair, [1969] 1 W.L.R. 221; Mayfield v. Mayfield, [1969] P. 119; Welsby v. Welsby, [1970] 1 W.L.R. 877; Turczak v. Turczak, [1970] P. 198; Alexander v. Alexander, The Times, April 1, 1969; Hornett v. Hornett, [1971] P. 255; and Nicholson v. Nicholson, [1971] 1 N.S.W.L.R. 1, are all cases of divorces obtained in what appears to have been the wife’s independent domicile. Peters v. Peters, [1968] P. 275, and Suko v. Suko, [1971] V.R. 28, are cases of divorces that did not meet the test in Indyka and would not have satisfied s. 6(2). The only cases where divorces were recognized that would not have satisfied s. 6(2) are Mather v. Mahoney, [1968] 1 W.L.R. 1773; Munt v. Munt, [1970] 2 AU E.R. 516; Spencer-Churchill v. Spencer-Churchill (1970), 114 Sol. Jo. 806; Messina v. Smith, [1971] P. 332; and Bishop v. Bishop, [1971] 1 N.S.W.L.R. 300.
65 The only relevant English decision is Bonaparte v. Bonaparte, [1892] P. 402, where it was held that a man who had helped a woman procure an invalid divorce from her first husband and then married her was not precluded from petitioning to have his marriage to her annulled. There is also a dictum of Jenkins L.J. in Travers v. Holley, [1953] P. 246, 254, suggesting that a spouse who obtains an invalid foreign decree is not estopped from alleging its invalidity and petitioning for divorce from the same person in England (cf. Schwebel v. Schwebel (1970), 10 D.L.R. (3d) 74a (Ont. H.C.)). See Dicey and Morris, op cit. supra note 20, at 329. The writer has not been able to find any Australian or New Zealand authority on the point.
66 (1965), 49 D.L.R. (2d) 675 (Ont. CA.).
67 Because she was found to have been domiciled in Nevada at the time of the nullity decree (the decree having annulled her marriage ab initio and thus having given her retrospectively a domicile separate from her husband’s).
68 (1965), 49 D.L.R. (2d) 689.
69 Re Hodgins (1920), 18 O.W.N. 231 (Ont. H.G.).
70 Re Williams & A.O.U.W. (1907), 14 O.L.R. 482 (Ont. D.C.); Carter v. Patrick, [1935] 2 D.L.R. 811 (B.C.S.C.); Re Graham Estate, [1937] 3 W.W.R. 413 (B.C.S.C); Re Plummer, [1942] 1 D.L.R. 34 (Alta. CA.); Re Lavis, [1959] O.W.N. 291 (Ont. H.C.); Re Capon (1965), 49 D.L.R. (2d) 675 (Ont. CA.); Re Chesaitis (1966), 58 D.L.R. (2d) 769 (B.C.S.C).
71 Re Jones (1961), 25 D.L.R. (2d) 595 (B.C.S.C.).
72 Schwebel v. Schwebel (1970), 10 D.L.R. (3d) 742 (Ont. H.C.).
73 Stephens v. Falchi, [1938] S.C.R. 354, esp. 360-61. In the result, the second husband’s claim was allowed on the ground that the marriage, though void, had been a putative marriage under the law of Quebec, which had such “civil effects” as the second husband was claiming.
74 Re Reid and Reid (1971), 23 D.L.R. (3d) 538 (Ont. Co. Ct.). See also Cromarty v. Cromarty (1917), 30 O.L.R. 571 (Ont. CA.).
75 (1899), 31 O.R. 324 (Ont. D.C). See also Re Banks (1918), 42 O.L.R. 64, 65 (Ont. H.C.).
76 [1906] P. 135, 140, disapproving of the views of Dicey, as expressed in the first edition of his The Conflict of Laws (1896) at 276, on which the court relied in Swaizie v. Swaizie. The Ontario Divisional Court, to do it credit, expressed its doubts about this ground for recognizing the foreign decree and also based its decision on the ground of the husband’s domicile in the foreign jurisdiction: (1899) 31 O.R. 324, 330–33.
77 [1942] 1 D.L.R. 34 (Alta. CA.).
78 See Swaizie v. Swaizie (1899), 31 O.R. 324 (Ont. D.C.) and Burpee v. Burpee, [1929] 2 W.W.R. 128 (B.C.S.C).
79 Re Lavis, [1959] O.W.N. 291 (Ont. H.C.); Re Capon (1965), 49 D.L.R. (2d) 675, 691–92 (Ont. CA.); Re Chesaitis (1966), 58 D.L.R. (2d) 769 (B.C.S.C).
80 (1965), 49 D.L.R. (2d) 692.
81 Castel, (1965) 43 Can. Bar Rev. 647, 663.
82 Burnfiel v. Burnfiel, [1926] 2 D.L.R. 129 (Sask. CA.), per Lamont J.A.; Re Plummer, [1942] 1 D.L.R. 34 (Alta. CA.), per Ford J.A.; Fife v. Fife (1964), 49 D.L.R. (2d) 648 (Sask. Q.B.).
83 (1972), 34 D.L.R. (3d) 403 (S.C.C.). AH the page references below concerning the Downton case are to this report.
84 This was done, of course, with a view to qualifying the divorce for recognition in all the United States under the “full faith and credit” clause of the United States Constitution. See (1972) 34 D.L.R. (3d) 407.
85 It was admitted that the Nevada decree could not be recognized in Newfoundland, and this would seem to be the case even taking into account the most recent liberalizations of our conflicts rules in this area, following Indyka v. Indyka. See Part I of this article.
86 S. Nfld. 1962, c. 56.
87 Ibid., s. 2(c).
88 (1970), 1 N. & P.E.I.R. 203 (Nfld. S.C).
89 Supra note 86, s. 5(1).
90 (1971), 1 N. & P.E.I.R. 528, 540 (Nfld. G.A.).
91 (1972), 34 D.L.R. (3d) 403, 412.
92 Re Plummer, [1942] 1 D.L.R. 34, 44–45.
93 American Law Institute, Restatement of the Law, Second: Conflict of Laws 1971), § 74, at 224.
94 Page 414.
95 (1971), 1 N. & P.E.I.R. 540.
96 Page 415.
97 Ibid.
98 Supra note 86, s. 5(1) (c) and (a), respectively.
99 (1970), 1 N. & P.E.I.R. 211–12.
100 (1971), 1 N. & P.E.I. R. 541.
101 Page 416.
102 Restatement, Second: Conflict of Laws 225 (1971).
103 Page 413.
104 See Schwebel v. Schwebel (1970), 10 D.L.R. (3d) 742 (Ont. H.G.).
105 Cf. Krause v. Krause (1940), 26 N.E. 2d 290 (N.Y. Court of Appeals) (an action for separation), and Bonaparte v. Bonaparte, [1892] P. 402.
106 Stevens v. Fisk (1885), Cameron Sup. Ct. Cas. 392, as explained in the Downton case at page 410.
107 (1972), 34 D.L.R. (3d) 403, 410, overruling the trial decision in Re Lesser and Lesser (1968), 66 D.L.R. (2d) 486 (Ont. H.C.). That decision was reversed by the Ontario Court of Appeal by consent of the parties: (1968), 67 D.L.R. (2d) 410n.
108 Laskin J. did say at page 412 that “the ethical basis [for the estoppel doctrine] is lost… where there has been both invocation and submission to the foreign jurisdiction by the respective spouses.” Does this mean that an estoppel can never be raised against one party to the divorce if the other party actively participated in procuring the decree? If that is so, the Downton case could have been decided on the simple ground that the husband himself had been the petitioner, so that he (and his second wife, claiming through him) could never invoke an estoppel against his lawful wife. This point, however, was not made in the judgment.
109 The comment to the Restatement says, at page 225, “[A]n invalid ex parte divorce obtained by a husband will be held immune from attack by a wife who has remarried.” It is the most categorical statement in the entire comment.
110 It is hard to reconcile the Supreme Court’s consideration of the “equities” relating to the second wife with the point they made at page 415 that she was claiming through her husband, not making her own claim against the estate. If her claim depended on her husband’s, why was her own position vis-a-vis the first wife relevant?
111 (1971), 23 D.L.R. (3d) 538.
112 R.S.O. 1970, c. 128.
113 Stephens v. Falchi, [1938] S.C.R. 354.
114 Pages 410–11.
115 Page 413.
116 See Krause v. Krause (1940), 26 N.E. 2d 290 (N.Y. Court of Appeals). On the American doctrine generally, see Leflar, , American Conflicts Law 548–50 (1968)Google Scholar; Weiss, , “A Flight on the Fantasy of Estoppel in Foreign Divorce,” (1950) 50 Col. L. Rev. 409 CrossRefGoogle Scholar; Clark, , “Estoppel against Jurisdictional Attack on Decrees of Divorce,” (1960) 70 Yale L.J. 45.CrossRefGoogle Scholar