SEPARATION AS TO BED AND BOARD AND AS TO PROPERTY
IN THE QUEBEC CONFLICT OF LAWS
by Walter S. Johnson, Q.C., LL.D.
EDITOR’S NOTE: Mr. Johnson’s major treatise on the Conflict of Laws,
published in three volumes, in 1934, 1935 and 1937, has long been out of
print and is constantly in demand. He is now preparing a revision, brought up
to date, in one volume, to be published by Wilson &?’ Lafleur, Ltd., Montreal.
WVe are happy to be allowed to reproduce here one of the shorter chapters,
dealing with separation as to bed and board and as to property.
Chapter VII
SEPARATION
A. FOREIGN DECREE
Effect of foreign decree
A decree of separation as to property or as to bed and board, pronounced
by a competent foreign court having, in our view, jurisdiction over the parties,
would be recognized in Quebec. Both forms of separation are recognized in
our law, so that our courts could not logically refuse to recognize the authority
of the foreign court of the domicile. In Gourdon v. Lemonier’, the consorts,
resident in Quebec when the issue arose, were originally of France where the
wife had secured a separation as to property. Her separate status was main-
tained: she could carry on business here in her own name, and acquire property
In the present
against which her husband’s creditors could have no recourse.
state of our jurisprudence it is doubtful that our courts would recognize the
competence of foreign courts to decree the separation of consorts domiciled
here2. Nor is it probable that, a decree of separation from bed and board having
“1(1883) M.L.R. 1 S.C. 160, and authorities there cited. And see Bauron v. Davies (1897) 6 Q.B. 547;
(1896) 11 S.C. 123. X v. Rajotte (1938) 64 K.B. 484; if by the foreign law of the domicile at marriage
the consorts are separate as to property, the wife may sue in her own name for damages for personal
injuries; authorized by husband; confirming 74 S.C. 569; reversed by Trottier v. Rajotte [1940] S.C.R.
203.
2Dicey, Ed. 1958, 338:
**There is only one English case in which the recognition of foreign decrees of judicial separation
has been discussed. In that case it was held that a decree granted in the domicile of the parties would
be recognized in England ..
“; citing Tursi v. Tursi (1957] 3 W.L.R. 573 (Canada), following
Ainslie v. Ainslie (1927) 39 C.L.R. (Commonwealth L.R.) 381; and, ibid:
“Whether foreign decrees… granted by the courts of the parties’ residence would be recognized
in England is an open question.”
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been granted by the court of the foreign domicile, the court of a later Quebec
domicile acquired by the husband would order restitution of conjugal rights3 .
B.
JURISDICTION OF QUEBEC COURTS:
SEPARATION AS TO BED AND BOARD
(a) Domicile in Quebec
By article 6 our laws as to status and capacity do not apply to persons not
domiciled here; and as we have seen, the wife’s domicile is that of her husband.
If that rule is applied rigorously, a husband domiciled here and threatened
with an action in separation as to bed and board, could by deserting his wife
and establishing a domicile elsewhere, frustrate her remedy. Article 96 P.
permits her, in such a case, by derogation from article 6, to acquire a special
forensic domicile for the purpose of her action:
In an action for separation from bed and board, or for separation of property only, the
defendant must be summoned either before the court of the domicile of the husband, or, if he
has left that domicile, before that of the last common domicile of the consorts.
In the case where the defendant cannot be found, the action may be instituted before the
court of the domicile of the consort applying for separation and in such case the defendant
must be summoned through the newspapers’.
Though the husband has left his domicile here, the court assumes jurisdic-
tion5. And the rule applies whether the husband who has left the domicile
is plaintiff or defendant 6.
Article 96 P. is a law of exception and must be restrictively applied. It
applies when the husband has “left” the domicile. The word in the French
version is abandonn6, in the English sense of deserted. The husband, it must be
remembered, is free to take a new domicile, and ordinarily his wife’s domicile
goes along with his. But if he has deserted the common domicile, the wife
may sue for separation in the court of that last common domicile. If he has
disappeared and cannot be found after reasonable inquiry, the last common
domicile remains the domicile of the wife, her forensic domicile, and there she
may sue, effecting service upon her husband by summoning him through the
newspapers.
So where a husband, resident and apparently domiciled in Quebec, took a
new residence in Ontario to better his position, rented and furnished a home,
3Dicey, ibid. cites Ainslie v. Ainslic, supra, in which the High Court of Australia held that a
separation decree in Western Australia barred a claim for restitution in New South Wales. Lord v.
Lord (1902) 28 V.L.R. (Victoria Law Reports, Australia) 566.
4Art. 96 P. replaced arts. 192 C.C. and 35 P., which required the suit to be brought before the court
of the domicile of the husband only, and is equally imperative. Bourhard v. Simard 16 Q.L.R. 348;
Irwin v. Gagnon 23 R.L.n.s. 47, 264; art. 1099 P.; Codifiers” Report, art. 90; Brown v. Walman (1929)
32 P.R. 199.
5GaIna v. McCord (1923) 29 R.L.n.s. 454.
‘Brown v. Waldman, supra.
No. 2]
CONFLICT OF LAWS
secured there a new position for his son, his wife accompanying him, he had
not “left” – he had acquired in good faith a new domicile. The law of Ontario
does not provide an action for separation. The wife returned to Quebec and
sued as in the “last common domicile”. The action was dismissed on a de-
clinatory, “saving her recourse before the proper court.”
The “last common domicile” has a certain vagueness suggestive of residence.
In one case, the judgment notes that the draft article 96 prepared by the Com-
missioners revising the Code of Procedure, used the words derniere risidence,
which were changed to read dernier domicile commun des ipoux. The actual legal
domicile of the husband was difficult to fix, but for eight months he lived
with his wife and children in a rented home in Montreal where he was em-
ployed, after which they parted company, he going to New York to work and
live, and she remaining here. She sued for separation and alimony. A decli-
natory was dismissed: “There is no doubt that Montreal was the place of the
last common domicile of the consorts” 8 – about equal to saying “the last
common residence”, and too lenient a judgment.
In another case, the wife was a French national, the husband an American
aviator both during the war and by profession. His work as a pilot took him
to many distant places and he seemed to settle permanently nowhere. On the
facts, he had not lost his American domicile of origin. The consorts evidently
lived apart. She found him in Montreal, living in a hotel, and she sued him
for a separation, accompanied by a seizure in the hands of a local bank. Her
action was dismissed – there was no “last common domicile” here9 .
But a wife may sue for separation before the court of the last common
domicile even though she had left the home and her husband had then decided
to “pull up stakes” and go and live with his son in another district of the
province'”.
If the consorts are domiciled abroad, though resident in Quebec, our courts
have not jurisdiction, for the intention of article 6 is that their status and
capacity cannot be altered by our law”1 . Nor would our courts take jurisdiction,
even under article 96 P., if domicile could be seen as taken ad nutum, (nutus –
suivant la volont6, implying an act revocable at the will of the person) in
Quebec. For example, may a husband whose domicile has been, say, in Ontario,
establish a domicile in Quebec for the purpose of suing for separation a mensa
et toro his wife who refuses to join him in Quebec? In Brown v. Waldman”2 the
court held that it had no jurisdiction because the consorts were actually
7Morris v. King (1942) 47 P.R. 8.
$Mills v. Morrison [1947] P.R. 282.
ODuval v. Pangborn (1942) 47 P.R. 120.
10Martel v. Bertrand (1941) 45 P.R. 237. An’invalid foreign divorce is not a defence: Rexford v. Fraser
(1942) 45 P.R. 24.
“Brown v. Waldman, note (4); Irwin v. Gagnon (1917) 23 R.L.n.s. 264; Tanguay v. Caron et vir (1924)
26 P.R. 71.
“2Supra, note (4).
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domiciled in Ontario, but went on to consider whether, supposing that the
husband (the plaintiff) had established a domicile here, his wife who had
failed to follow him, was amenable to our laws.
The Code requires, the court said, that the defendant be summoned before
the court of the domicile of the husband, or, if he has left that domicile, before
that of the last common domicile. The domicile had been in Ontario, and the
plaintiff had abandoned it. He must sue before the court of the last common
domicile if he has left that domicile. The rule was laid down’for the protection
of the wife, and it obtains whenever the husband has left the conjugal domicile.
It does not authorize him to change his domicile ad nutum for the purpose of
suing in the new domicile a wife who, rightly or wrongly, has refused to
follow him.
Doubts have been raised as to the meaning and effect of article 96 P., and
it is advisable to discuss them here. Briefly, the question is whether a Quebec
court, despite the words of that article, has or may take jurisdiction to decree
a separation as to bed and board on the basis of the bonafide residence, as distinct
from domicile, of the consorts in the province. The dictum of Lord Watson
in LeMesurier v. LeMesuriert”
is well-known and was available before our
article took its present form:
“If, for instance, a husband deserts his wife, although their residence be of a temporary
character, those courts (i.e. of the residence) may compel him to aliment her; and, in cases
where the residence is of a more permanent character, and the husband treats his wife with
such a degree of cruelty as to render her continuance in his society intolerable, the weight
of opinion among international jurists, and the general practice is to the effect that the courts
of tfhe residence are warranted in giving the remedy of judicial separation, without reference
to the domicile of the parties.”
As we saw above, our Commissioners at first used the word “residence”
.” was finally chosen;
as the basis of jurisdiction, but “common domicile. .
so that the article became an express rule that the defendant “must be summoned
before the court of the domicile . . . or, . . . before that of the last common
domicile. . .”. The emphasis on domicile is all the more intentional for being
a considered choice as against residence; and it must be presumed that the
choice was deemed imperative in view of articles 6 and 79 of the Civil Code,
and because the separation affects both status and capacity. And by article
1099 P.: “No suit for separation from bed and board can be brought except
within the jurisdiction stated in article 96 of this Code of Procedure”.
In Irwin v. Gagnon”, a majority judgment of the Court of Review, confirming
Lamothe J. (afterwards C.J. in Appeal), held that the court of the domicile
is alone competent in an action in separation as to bed and board, the incom-
petence of any other court being ratione materiae. In a very interesting dissent,
Judge Archibald A. C. J. gave article 96 a different meaning. Gagnon, the very
distinguished Canadian artist, of Quebec domicile originally, had lived so long
13[1895] A.C. 517; 64 L.J. (P.C.) 97. Lafleur, op. cit., p. 89, quotes Lord Watson’s dictum, and the
tenor of his remarks suggests that he favoured the opinion expressed.
“(1917) 23 R.L.n.s. 264 (Rev.) confirming (1917) 23 R.L.n.s. 47, (1915-16) 17 P.R. 402.
No. 2]
CONFLICT OF LAWS
in France that the court conceded that the domicile of the consorts was there,
though they made long visits to Quebec. And here they were estranged. She
sued for a separation. His defense, inter alia, was that his domicile being in
France, a Quebec court was without jurisdiction and our courts agreed. Briefly
stated, the dissenting opinion was that article 96 P. is a rule of public order,
purely provincial and domestic, intended to relate the inhabitants of the
province each to a fixed place therein, so that the word domicile in the article
has a local function –
the relating of a person to a certain locality or commune,
whereas in international law, the intent of the use of the word is to enable a
decision as to the country, – France, Canada, England, as the case may be,
by the laws of which his status and capacity can be judged on an international
level. That is a very’reasonable argument, backed by cited French authority.
Further, said his Lordship –
and this also is impressive:
“‘It is well to appreciate at once what the result of this judgment is. It is, so far at any
rate, as the wife is concerned, a matter of impossibility for her to appeal for justice to the courts
of France. She would require her husband’s consent and authority; and it would be physically
and financially impossible for her without means, to go to France for the purpose of obtaining
justice. Even if she went there, she would not be a subject of France, nor is her husband, and
she would be denied to complain before a French court of acts committed by her husband against
her within this province justifying a demand that she should be authorized to live separate
from her husbana. If, then, this judgment is correct, the wife, supposing her to have a good
ground of action, has no possible remedy to obtain her rights. Our Code provides that the
courts of this Province have jurisdiction over all the persons who are living therein. No
exception is made…”
There is a further argument: that whether a separation is justified on any
of the grounds listed in articles 187-8-9 P., a determination of the existence of
sufficient grounds to untangle the consorts by enabling them to live separately,
is a matter of marriage discipline, of penalizing the erring party, and penal or
disciplinary laws are essentially of the lex fori. So that, the argument goes, it
is more a matter of public order and good morals that our courts should assume
jurisdiction to discipline and often relieve consorts, resident though not domi-
ciled, whose conduct is perhaps a public scandal, rather than refuse jurisdiction.
If we accept jurisdiction and declare the wife separate as to bed and board,
have we not assumed jurisdiction to alter her status and capacity as a married
woman under her foreign domiciliary law, freed her to choose a separate inter-
national domicile, made her separate as to property though by her domiciliary
law she is in community, altered her capacity to contract and administer her
property? Have we not also given her a judicial hypothec? Rather gratuitously?
It is possible that the Commissioners when drafting article 96 did not see
the woods for the trees, thinking only of good order in a provincial way and
oblivious to the wider international implications of the rule. As between the
provincial judicial districts it has been rigidly enforced. Thus, if the husband’s
domicile or the last common domicile is in the City of Quebec in the District
of Quebec, the action is not properly brought in the City of Montreal in the
District of Montreal. The reason is simple and reasonable –
that the court of
the place where the consorts have been living and where witnesses are available,
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is the court best qualified to pronounce upon their disagreements and behaviour.
The old French authors, for that reason, treated the rule as one of public order
and an action taken in the wrong jurisdiction as void of an absolute nullity;
and our courts have followed that view where the consorts have resided here
but been domiciled in a foreign country, by refusing to accept jurisdiction as
a forum conveniens.
.
In the recent case of Ryan v. Pardo”5 , an action on exemplification of a New
York judgment to collect accumulated arrears of alimony, it was pleaded inter
alia that the New York court was without jurisdiction to decree the separation
and award alimony, the consorts being only resident there and domiciled in
Peru. The judgment on that point concluded that our court could not rule
that the foreign court was without jurisdiction based on residence as allowed
by New York law, and that in Quebec:
“‘It is … in no way certain that the legal concepts acceptcd in this province .. ar so
clearly established as to be definirely antagonistic to an action in separation between persons
not domiciled in this province, before a tribunal having jurisdiction ratione materiae and personae
irrespective of the question of their domicile. Indeed, the provisions (art. 96 P.) … require,
in principle, that in an action for separation the defendant be summoned before the court of
the domicile of the husband, but they apply solely and exclusively to persons domiciled within
the territory of this province, and the place where such action must be instituted refers,
consequently, to the judicial district, in this province, in which the husband is domiciled.”
And his Lordship, M. justice Brossard, was of opinion that the second
paragraph of article 96 gives weight to the dictum of Lord Watson, that a
residence short of domicile would, under certain circumstances, be recognized
as affording jurisdiction.
Even if article 96 did not exist, our courts are without jurisdiction to affect
the status and capacity of consorts of foreign domicile, and a decree of separation
as to bed and board does (at least in our view) affect status and capacity.
Offence committed outside the province
The Civil Code declares that separation from bed and board may be obtained
for certain specific reasons. It makes no exception as to parties who may have
been married outside the province, nor does it take any account of the law of,
or of the reasons for which a separation may be granted in, any other province
or country. Two conditions only are necessary: the defendant must be in our
jurisdiction –
i.e., the domicile or the last common domicile must be here;
and the specific offence charged must be one of those mentioned in our Code –
it matters not where it was committed 17.
Judicial hypothec
A wife who obtains a separation from bed and board, with a monthly
alimentary pension, may register her judgment against her husband’s immove-
” See the old French authors cited in Mo/leur v. Deqadon (1874) 6 R.L. 105.
16[1957J R.L. 321.
17Church v. Hamilton 21 R. de J. 88; Hamilton v. Curch (1914) 24 K.B. 26.
No. 2]
CONFLICT OF LAWS
ables, and so obtain a judicial hypothec’ 8 . Of course a foreign judgment
could not be registered, but only the further judgment obtained here declaring
it executory. Yet the foreign judgment declared executory cannot carry
judicial hypothec in Quebec unless it carried
judicial hypothec by the
foreign law 9 .
Provisional residence
The judgment in Jones v. Warman2″ decided that article 195 gives the court
absolute discretionary power to fix, even in a foreign country, the provisional
residence of a wife suing for separation from bed and board.
Desertion by wife to a foreign country
In Abbott v. Doble2′ it was held by the Court of Review that the conduct of
a wife leaving her husband’s domicile in Quebec and going to reside in the
United States for the purpose of establishing a domicile entitling her to a
divorce, does not constitute desertion nor grievous insult justifying her hus-
band’s action for a separation from bed and board:
“Considering that the parties were residing in the United States when the marriage took
place and were married under the provisions of the law of that country which authorize
divorce”.
The judgment is unsatisfactory. There is a suggestion of the doctrine of
an “acquired right” to a divorce discussed in Chapter IX. The conjugal domi-
cile was here. The wife was not separate from bed and board, and therefore
not free to establish a separate domicile. The fact that the consorts may have
been “residing” in the United States at their marriage, if the husband’s domicile
was then here, did not, so far as our laws are concerned, do more than validate
their marriage as to form; and surely could not qualify the wife to desert the
husband’s domicile here. Her desertion may or may not have constituted
ill-usage or grievous insult; but to justify it on the ground of mere residence
at marriage under a law which countenances divorce, seems to beg the entire
question.
C. JURISDICTION OF QUEBEC COURTS:
(a) Foreign domicile bars action here
SEPARATION OF PROPERTY
By article 96 P., the action for separation of property must also be brought
before the court of the domicile of the husband, or, if he has left that domicile,
before that of the last common domicile of the consorts. We have only the
‘ TChetrier v. Aubertin (1922) 61 S.C. 343.
1″Surville: Dr. Int. Pr. No. 382.
2017 R.L.n.s. 97; (1910) 12 P.R. 187.
21(1920) 59 S.C. 572; Carter v. Lemoine (1923) 26 P.R. 56, where it was held that a wife domiciled
in Quebec, not separate from bed and board, cannot establish a domicile in the United States for the
purpose of securing a divorce and return here and marry again. Cf. Pilon v. Duclos (1924) 36 K.B. 411;
Mondor v. Herrieux (1923) 35 K.B. 59.
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old judgment in Molleur v. Dfiadon22 to illustrate the rule. The consorts, ori-
ginally domiciled in Quebec, had for ten years been domiciled and had lived
in the State of New York. The wife returned here and brought an action for
separation of property, describing herself as of this province and her husband
as of the State of New York. It was held that the separation thus obtained
before a court other than that of the actual domicile, was radically null and
could be attacked even by creditors, though the husband had acquiesced therein.
The argument that residence might give jurisdiction could not be raised
in that case, because the consorts were domiciled and resident abroad, and the
wife could not by coming here alone establish a separate forensic residence or
domicile. So that the judgment is not a precedent against the view that residence
of the consorts here should give jurisdiction. If, as Lafleur says, 2 “a residence
short of domicile would justify a separation from bed and board, it should a
fortiori warrant the court of the residence in decreeing a separation as to property
only”; for the former, besides separating the consorts, entails separation of
property as well. But, as already indicated above, it is very doubtful that
residence is sufficient. However, suppose this case: Consorts are married here
common as to property. The husband is in business and accumulates property.
They remove their domicile to Vermont. Without a further change of domicile,
they return to Quebec on an extended visit, during which the husband’s affairs
become so disordered as ‘to give reason to fear that his property will not be
sufficient to satisfy what the wife has a right to receive or get back24 . What
that is, is wholly determined by Quebec law. The business and the property
are here. The consorts are here. The issue is not one of status and capacity,
but a mere incident, not of the essence of the marriage. Yet under the juris-
prudence, the wife must return to Vermont, take an action there if the foreign
law permits, and have only such rights as the foreign law upon such a separa-
tion accords her. That result seems unjust.
(b) Consorts separate by foreign law
Where consorts are already separate by their foreign matrimonial law, may
the wife, the consorts being domiciled here, obtain a separation in Quebec
when her interests are imperilled by the disordered state of her husband’s
In
affairs? We have three judgments which by no means exhaust the issue.
Wiggins v. Morgan25 and Dalton v. King26 , decided in 1879, it was apparently
held (in each case the report consists merely of a head-note) that an action
for separation as to property could not be maintained by a wife in this province
if the consorts were married under a law which did not create community
22Notc (15).
230p. Cit. 89.
24Art. 1311.
-(1S79) 9 R.L. 546.
2(1879) 9 R.L. 548.
No. 2]
CONFLICT OF LAWS
between them. Sweet-apple v. Gwilt,2 7 in a contrary sense, decided in 1862, was
a default judgment. The parties were married separate as to property in
Toronto, their domicile, where they continued to reside for several years, the
defendant administering the plaintiff’s estate. They later removed to Quebec,
It
where the wife sued for a separation, alleging her husband’s insolvency.
was held, in the terms of the prayer:
“That the plaintiff shall and may from the date of her demand, hold, possess, use, ad-
minister and enjoy separately and apart from the defendant, all and every her estates and
property… as well those which belonged to her before her marriage.., as those which have
accrued or shall hereafter accrue to her, without molestation, trouble or hindrance … ; and
doth adjudge and condemn the defendant to guarantee, acquit and indemnify the plaintiff
. for which he may have caused plaintiff to be
from and against all and every the debts . .
jointly with him liable.”
As the judgments are not reasoned it is difficult to elucidate them. The
first two possibly were based on the view that as the consorts were already
In the
separate, a judgment declaring them separate could not help them.
Sweet-apple case, there is the allegation that in Ontario the husband had the
administration of his wife’s estate, though they were separate, and apparently
the wife wished the free administration permitted by our law.
Consorts in community, or separate by their foreign matrimonial law,
remain so though they acquire a domicile in Quebec. If in community, how-
ever, a judgment of separation from bed and board entails separation of prop-
erty, and the wife may obtain a judgment of separation of property if her
husband’s insolvency is alleged. Separation of property flowing from a separa-
tion from bed and board, or based upon the husband’s insolvency, would be
a separation with all the incidents and consequences known to our law.
But assuming that the consorts are already separate as to property by their
foreign matrimonial law, would a judgment of separation from bed and board
entail separation of property as known in our law, a difference being granted
to exist? Under her foreign law, the wife’s separate property rights and her
rights of administration might be greater or less than under ours. The proper
view may be that rights she already possessed would not be curtailed, and that
additional rights accorded by our law she should have; because the spirit of
the law is to give her protection, to extend, not to curtail her freedom.
It would seem reasonable and logical, therefore, that where a separation
of property is sought because of the insolvency of the husband, it might well
be granted, though the consorts are already separate under a foreign law, upon
it being proved that as between the foreign and the domestic law there is an
advantage to the wife under the latter. 28.
And even where it cannot be shown that there is a difference between the
foreign and the domestic law, may there not be an advantage to the wife, and
even to the creditors, in her asking that, in view of the husband’s disordered
27(1862) 7 L.C.J. 106; Dalton v. King, Note (26), .rupra.
28And see Lafleur, op. cit. 90-1.
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affairs, it be now declared beyond a doubt that by virtue of the domestic and
of her foreign law she is separate as to property, rather than to be left to make
oppositions at a later date when her husband’s resources and his creditors are
more deeply involved?
D. RAISING THE ISSUE OF LACK OF JURISDICTION
A matter of public order
The lack of jurisdiction being, under the jurisprudence, a matter of public
order and hence a cause of radical nullity, the issue may be raised at any stage.
In Molleur v. Dejadon2 9, it was held that the radical nullity need not be pleaded;
it need only be brought to the attention of the court for the latter to take
judicial cognizance thereof. In Irwin v. Gagnon3″ it was held that the incom-
petence of any court but that of the domicile is ratione materiae, and may be
raised at any stage of the case and by any appropriate procedure. And in Gana
v. McCord”, that the jurisdiction being ratione materiae, the issue could be
properly raised either in a plea to the merits or by a declinatory exception.
29NoEC (15) supra.
3ONorc (14) supra.
3″Note (5) supra. And see Bouchard v. Simard 16 Q.L.R. 348; Bonin v. Bergeron 18 R. de J. 355.
