“1. Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction?
Although this court’s statements in Rothgiesser v. Rothgiesser, supra, concerning the interpretation of the current version of s. 4 of the Divorce Act may be obiter, I nevertheless agree with the conclusion that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction. I reach this conclusion based on a review of the legislative history of the jurisdiction provisions in the Divorce Act and based on a consideration of the language of s. 4 within the context of the entire Act.
The Divorce Act, S.C. 1967-68, c. 24 (the “1968 Act”), introduced the first comprehensive national divorce legislation in Canada. On February 13, 1986, the 1968 Act was superseded by the present Act, the Divorce Act, R.S.C. 1985, c.3(2nd Supp.) 1985 (the “1985 Act”). A review of the legislative history of the jurisdiction provisions in both Acts reveals the following:
(i) The 1968 Act
— under s. 5 of the 1968 Act, a court in a province had jurisdiction to “entertain a petition for divorce and to grant relief in respect thereof” if the person who presented the petition was domiciled in Canada and if either spouse had been ordinarily resident in the province for 12 months and actually resident in the province for ten months;
— under s. 11(1), a court was entitled to make orders for spousal and child maintenance and for custody (the title and sidenotes to s. 11 referred to such orders as “corollary relief”) “upon granting a decree nisi of divorce”;
— under s. 11(2), a corollary relief order could be varied “by the court that made the order”.
(ii) The 1985 Act
— the 1985 Act introduced the concept of a corollary relief proceeding, thereby making it clear that an order for corollary relief could be made after a divorce was granted. The 1985 Act included definitions of “divorce proceeding”, “corollary relief proceeding” and “variation proceeding” and also contained separate jurisdiction provisions for each form of proceeding;
— under s. 3 of the 1985 Act, the requirement that a party seeking a divorce be domiciled in Canada was removed and the residence requirement was modified — a court in a province could “hear and determine” a divorce proceeding where either spouse had been ordinarily resident in the province for a period of one year immediately prior to the commencement of the proceeding;
— under s. 4, a court in a province could hear and determine a corollary relief proceeding only if the court had granted a divorce to either or both former spouses;
— significantly, under s. 5, a court in a province could hear and determine a variation proceeding if either former spouse was ordinarily resident in the province at the commencement of the proceeding or if both spouses accepted the jurisdiction of the court;
— while s. 5 extended the jurisdiction to hear a variation proceeding to a court in a province where either former spouse was ordinarily resident, it is clear from reading the Act as a whole that this extension did not confer jurisdiction on Canadian courts to vary the support and custody provisions of a foreign divorce decree. In particular, s. 17 of the Divorce Act sets out a court’s power to vary an existing order and refers specifically to the power of a court to vary a “custody order” and a “support order”. “Custody order” and “support order” are defined in s. 2 of the Divorce Act by reference to the section in the Act under which such an order can be made. The power to vary orders for custody and support is therefore expressly limited to orders made under the Act and does not include the power to vary corollary relief orders made as part of a foreign divorce decree.
(iii) The 1993 amendment to s. 4
— s. 4 of the 1985 Act, which limited the jurisdiction to hear a corollary relief proceeding to the court that granted the divorce was amended on March 25, 1993 by S.C. 1993, c. 8, s. 1 (the “1993 amendment”);
— following the 1993 amendment, a court in a province had the same jurisdiction to hear and determine a corollary relief proceeding as it had to hear and determine a variation proceeding, i.e., if either former spouse was ordinarily resident in the province at the commencement of the proceeding or if both spouses accept the jurisdiction of the court.
In my view, when considered in the light of the legislative history of the jurisdiction provisions in the Divorce Act, the obvious purpose of the 1993 amendment was to bring the jurisdiction to hear and determine a corollary relief proceeding in to line with the jurisdiction to hear and determine a variation proceeding. As a result, rather than having to return to the court in the place where the divorce was granted, a former spouse wishing to commence a corollary relief proceeding can do so in the province where he or she is ordinarily resident. I see nothing in the legislative history of the Divorce Act to indicate that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction.
My conclusion concerning the purpose of the 1993 amendment is consistent with the brief references to its purpose contained in the legislative debates leading up to its enactment. Significantly, there is no reference in these debates to an intention to broaden the scope of Canadian divorce legislation to permit a Canadian court to make an order for corollary relief relating to a divorce that was granted in a foreign jurisdiction.
In Rothgiesser v. Rothgiesser, supra, this court doubted Parliament’s jurisdiction under s. 91 of the Constitution Act, 1867, to enact legislation dealing with support obligations in the absence of a Canadian divorce. The parties in this case did not make submissions concerning the extent of Parliament’s legislative authority under the Constitution Act.
However, even assuming that Parliament is empowered to enact a provision dealing with support following a foreign divorce as part of the Divorce Act, I consider it unlikely that Parliament would do so without clearly signalling its intention in that respect and without considering the appropriateness of such legislation in the context of private international law.
For example, had Parliament intended to give Canadian courts the authority to grant support following a foreign divorce, it is likely that Parliament would have considered whether it was also appropriate to enact a provision addressing in what circumstances a Canadian court should exercise that authority. As there is no indication that Parliament considered international law consequences when enacting the 1993 amendment and no clear statement in the Divorce Act that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to deal with support following a foreign divorce, I conclude that was not Parliament’s intention.
I find further support for my conclusion that s. 4 does not permit a former spouse divorced pursuant to a foreign divorce decree to commence a corollary relief proceeding under the Divorce Act based on a consideration of the Act as a whole. In my view, the very description of orders for spousal support, custody and child support as “corollary relief” confirms Parliament’s intention that these orders are intended as forms of relief that are incidental to the granting of the divorce. If a divorce was not granted in Canada, it is difficult to see how the making of a support order could properly be viewed as “corollary relief”.”