THE McGILL
LAW JOURNAL
VOLUME 5
1958
NUMBER 1
CANADIAN PRIVATE INTERNATIONAL LAW RULES
RELATING TO DOMESTIC RELATIONS
3. G. Castel*
I-MARRIAGE’
Marriage is generally considered as a personal status, not strictly a res but
savouring of a res, created and governed by the law of the domicile which is the
situs. It also pertains to the nature of a contract due to the consensual aspect of
the transaction. This contractual aspect involves any form of mutual consent
from a formal ceremony to a mere oral exchange of promises.
There is agreement among the Canadian provinces that the formalities of
marriage, e.g. whether a contract came into existence, are governed by the law
of the place of celebration 2 while the capacity of the parties to enter into the
contract of marriage3 is governed by the law of their domicile4. In all provinces
the courts will refuse to give effect to a foreign marriage which is contrary to
the local public policy, although they may in certain cases give limited recogni-
tion to it.5
As already mentioned, the incidents of the marriage pertaining to form
are governed by the law of the place of celebration. 6 If the marriage solemnized
*Faculty of Law, McGill University.
11n general see Falconbridge Essays on the Conflict of Laws, (2d. ed., 1954) pp.
663 et seq.; [1932] 4 D.L.R. 1; Johnson, The conflict of Laws with Special Reference
to the Law of the Province of Quebec, vol. 1 (1933) pp. 274 et seq.: Baxter, The Law
of Domestic Relations 1948-1958 (1958), 36 Can. Bar Rev. 299; Casgrain, La validiti
dun mariage c~lbri hors de la province de Quebec (1950), 10 R. du B. 14.
2Berthiaume v. Dastous, [1930] A.C. 79, [1930] 1 D.L.R. 849, noted (1930), 8 Can.
Bar Rev. 696.
Se.g. age.
4fohnsion v. Hazen (1914), 43 N.B.R. 154.
5For proof of foreign marriage see Power, The Law of Divorce in Canada (1948)
pp. 268-9.
Berthiaume v. Dastous, supra footnote 2 Jodoin v. Mower, [1953] S.C. 253
(Que.); C.C. 135; Sedgewick v. Sedgewick (1953), 9 W.W.R. (N.S.) 704 (Sask.).
Johnston v. Hazen, supra, footnote 4; Harris v. Cooper (1871), 31 U.C.Q.B. 182.
McGILL LAW JOURNAL
[Vol. 5
in the foreign country is void as to form, there is no marriage anywhere,
although the ceremony or proceedings if conducted in the place of the parties’
domicile would be considered a good marriage. It is also immaterial that the
foreign form would not be sufficient for a marriage celebrated in the place of
the domicile. If the parties went abroad for the purpose of evading the formalities
of their domiciliary law, the marriage would not be recognized in Quebec.7
In the case of minors, the consent of parents where required has been
characterized as a matter of form,8 while in Quebec it has been considered a
matter of capacity.’ If the lex celebrationis does not prescribe any solemnities
at all but recognizes a marriage by declaration to third parties or a mere de facto
marriage, it will be recognized in the Canadian provinces.’ 0 Canadian courts
however do not recognize as marriage every type of union between man and
woman and have adopted the view expressed in Hyde- v Hyde” that marriage
denotes only “a voluntary union for life of one man and one woman to the
exclusion of all others.” Any marriage concluded abroad which satisfied this
test will be recognized in the various provinces. Although on the ground of
public policy our courts will not in principle recognize the legal consequences
of relations between men and women arising from some other kind of union, the
tendency is to give a certain recognition to a marriage which has taken.place
in countries where polygamy is the usual form of union. Thus in re Succession
Duty Act; Yew v. Atty.-Gen. for B.C.,’2 a domiciled Chinese died while
temporarily present in British Columbia, leaving considerable property in that
province. He was survived by two wives lawfully married in China. It was held
that both were to be treated as “wife” for the purpose of fixing the rate of
succession duty payable, on the ground that the question did not have any moral
or religious aspect but simply involved the business of collecting taxes. In re
Immigration Act; in re Leong Ba Chai,18 the courts went even further, since
they held that where the lex loci contractus and the law of the domicile both
concur they will recognize als lawful wives women who have the legal status of
7C.C 135; Cholette v. Jones (1938), 45 R.L. (n.s.) 111, (Que.); N. v. T., [1949]
S.C. 327 (Que.); F. v. G., (1951] S.C. 458, (Que.). Pearson v. Barrett, [1948] S.C. 65.
(Que.).
8Stewcprt v. Stewart (1924), 56 O.L.R. 57. See also Hunt v. Hunt (1958), 14 D.L.R.
(2d.) 243. (Ont.).
9Agnew v. Gober (1907), 32 S.C. 266, (1910), 38 S.C. 313
(Qme. Rev.), contr
Redshaw v. Redshaus, [1942] S.C. 109 (Que.)
Carter, Proxy Marriages (1957), 35 Can. Bar Rev. 1195.
1OForbes v. Forbes (1912), 3 Q.W.N. 557, 3 D.LR. 243; for proxy marriages see
11(1866), L.R. 1 P. & D. 130.
12[1924] 1 D.L.R. 1166 rev. [1923] 2 D.LR. 52 (B.C.), noted (1930), 8 Can. Bar.
Rev. 187, also [1932] 4 D.LR. 26.
13105 C.C.C. 136, [1953] 2 D.LR. 766 (B.C.) affd., [1954] S.C.R. 10, 107 CCC.
337, [1954] 1 D.I-R. 401. See also in re Dedar Singh Bains (1954), 13 W.W.R. (N.S.)
90.
No. 1]
PRIVATE INTERNATIONAL LAW
secondary wives in a country where polygamy is not illegal, and by consequence
also recognize as legitimate the children by such women if they are recognized
as legitimate under the law of the father’s domicile at the time that status is
acquired. On the other hand, in Lin v. Lirnt4 , the same British Columbia courts
refused to entertain an action for alimony even
though the parties, now
domiciled in that province, were domiciled in China at the time of the ceremony
and the marriage was solemnized there. Recently, in Kaur v. Ginder, Ginder v.
Kor,15 it was stated again that British Columbia courts have no jurisdiction to
give or enforce any matrimonial remedies with respect to a polygamous marriage.
Yet the court held that although the marriage was contracted by a British
Columbia, domiciliary it would be recognized if valid by the lex loci celebrationis
and, therefore, be a complete bar to the parties thereto validly contracting a
subsequent monogamous marriage during his or her spouse’s lifetime. Where
the marriage has been contracted in unsettled parts of the country between a
“native” and a “white” person according to local custom, it has been held that
the marriage is valid if the parties intended the union to be monogamous. 16
Questions pertaining to the intrinsic validity of the marriage, such as
capacity to marry, prohibited degrees of consangninity, as well as the attributes
of the matrimonial status, are governed by the law of the domicile. 17 This is the
ante-nuptial domicile of each party at the time of the marriage if they do not
share a common domicile. If at the time of the marriage one or both parties are
by their domiciliary law or
their
marriage wherever celebrated is invalid.
incapable of marrying each other,
laws
Where a divorce decree is coupled with a disability on the capacity to
marry again within a prescribed period and a marriage takes place within that
period, it has been held that if the parties at the time of the remarriage are
domiciled within the province enacting the prohibition and the marriage
is
solemnized outside, it will be invalid. If, on the other hand, the parties are no
longer domiciled within that province, their capacity to marry is governed only
by the laws of the new domicile.’ 8
(2d) 465, 25 W.W.R. 532 (B.C.).
14[1948] 1 W.W.R. 298, [1948] 2 D.L.R. 353 (B.C.).
15(1958), 13 D.L.R.
16Re Sheram (1899), 4 Terr. L.R. 83; Robb v. Robb (1890), 20 O.R. 591: Fraser
v. Pouliot & Jones (1885), 13 R.L. 1 ; 13 R.L. 520, 12 Q.L.R. 327; Connolly v. Woolrich
& Johnson (1867), 11 L.C.J. 197,
(Que. C.A.). Note that the
solemnization abroad of marriages in which at least one of the parties
is a British
subject is provided for in the Foreign Marriage Act 1892, 55 & 56 Vict. c. 23. supple-
mented by the British Subjects (Facilities Act) Act 1915, 5 & 6 Geo. V, c. 40, and
The Marriage with Foreigners Act 1906, 6 Edw. VII, c. 40.
(1869) 1 R.L. 253
17Dejardin v. Dejardin, [1932] 2 W.W.R. 237 (Man.); Miller v. Allison, [1917]
2 W.W.R. 231, 24 B.C.R. 123, 33 D.L.R. 144; Johnston v. Hazen, supra, footnote 4.
18 Note that a distinction must be made between prohibitions which exist until the
decree of divorce is final and absolute and those which follow that decree: Crosby v.
Constable (1957), 23 W.W.R. 32, 10 D.L.R. (2d.) 220 (B.C.). In general see Hellens
McGILL LAW JOURNAL
[Vol. 5
II-MATRIMONIAL PROPERTY
Marriage affects the property rights of the spouses in many ways and
conflict of laws questions usually arise concerning the property owned by the
parties at the time of their marriage and that which they may acquire sub-
sequently. A distinction must also be made between movables and immovables.
The solution to these conflictual problems will in turn depend upon whether or
not there exists an express or implied marriage contract or settlement.
A MARRIAGE CONTRACT OR SETTLEMENT EXPRESS OR BY OPERATION OF LAw
A man and a woman who are about to marry may wish to make an
agreement concerning their financial affairs. If the parties are domiciled in
different legal units and they do not indicate which law shall govern their
agreement, the courts will have to determine that law. As a general rule, the
law of the matrimonial domicile of the spouses is held to be applicable and this
is interpreted as the place where the husband was domiciled at the time of the
marriage.19 This is only a presumption which can be rebutted by the sur-
rounding circumstances of the case. Thus in Quebec, article 8 of the Civil Code
states that deeds are construed according to the laws of the place where they
were passed, unless the parties have agreed otherwise, or by the nature of the
deed or from other circumstances it appears that the intention of the parties
was to be governed by the law of another place. The proper law, once
determined, will govern the interpretation and effect of the contract.20 In Quebec
also the capacity to conclude a marriage contract or settlement is governed by
the law of each party’s domicile at the time of contracting. It would seem that
v. Densmore (1957), 10 D.L.R. (2d.) 561
(Can.) reversing (1956), 19 W.W.R. 252,
5 D.L.R. (2d.) 200 affirming 17 W.W.R. 174, 1 D.L.R. (2d.) 132 (B.C.), noted Kennedy
(1956), 34 Can. Bar Rev. 825 (remarriage after a decree dissolving a prior marriage
has been pronounced but before time for appealing such decree has expired) ; Colvin v.
Colvin 5 W.W.R.
(N.S.) 648, [19521 3 D.L.R. 510 (B.C.); Bevand v. Bevand, 35
M.P.R_ 244, [1955] 1 D.L.1. 854 (N.S.); Re Murdock Estate; Macfarlane v. Murdock,
3 W.W.R. (N.S.) 19, [1951] 4 D.L.R. 251 (B.C.); Toovey v. Tooviy [1950], 2 W.W.R.
142 (B.C.); Gill v. Gill, [1947] 2 W.W.R. 761 (B.C.); Dahl v. DaM, [1951] 2 W.W.R.
(N.S.) 392, (B.C.); Re Eaton [1922] W.W.R. 236, 30 B.C.R. 243; Bronts v. Browm
(1956), 20 W.W.R. 321 (B.C.). Where a decree of divorce imposes a permanent res-
triction on the remarriage it will be considered as final and the restriction will not be
enforced.
19 In Re Jutras Estate, [1932] 2 W.W.R. 533 (Sask C.A.), at p. 556, it was stated
that the parties to the contract may agree expressly or impliedly that the law of any
country shall govern their proprietary rights. Note that the term matrimonial domicile
could be extended so as to mean the intended domicile of the husband, that is, the
country in which they intended to become and did become domiciled after the marriage,
but this would leave property rights unsettled until the elements of domicile are present.
20For an interesting case interpreting a marriage contract as to dower see Jamieson
v. Fisher (1863), 2 E. 8 A. 242 affirming 12 U.C.C.P. 601.
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PRIVATE INTERNATIONAL LAW
5
the same rule prevails in the common-law provinces although one could argue
that all the incidents of the contract should be governed by its proper law.
The form of the contract is governed by the proper law or the lex loci
contractus. The latter view prevails in Quebec by application of article 7.
In all provinces the interpretation or effect of the marriage contract or
settlement cannot be varied by a subsequent change of domicile. 21
The contract, if valid by the proper law, will be held valid everywhere and
will govern the rights of the spouses in respect of all movable property which
is possessed, or is afterwards acquired in a jurisdiction other than the matri-
monial domicile, even if at that time the parties have acquired a new domicile
there, unless it is contrary to the law of the place where it is sought to be
enforced.
In the common-law provinces the effect of the agreement in creating an
interest in foreign land will be governed by the lex situs, including its conflict
rules.22
In Ontario it has been held that where there is a valid marriage contract
it will govern the mutual rights of the consorts with respect to all Ontario
immovables within its terms which are then possessed or are afterwards
acquired so long as the Ontario statute of frauds has been complied with and
the contract is not repugnant to Ontario law.23 It makes no difference whether
the matrimonial domicile of the parties at the time of the contract was in Ontario
or elsewhere. The proper law of the contract will apply to both movables
wherever situated and immovables in Ontario whenever acquired. Foreign
immovables would still seem to be governed by the lex situs.24 The same rules
will apply in the absence of a specific contract if the law of the matrimonial
domicile creates for the spouses a sort of nuptial contract under which there is
community of property between them.23 In Quebec no distinction is made
between movable and immovable property and the proper law of the contract
will govern both.
2lFalconbridge op cit., p. 107, Que C.C. 1265; Tetrault v. Baby (1939), 78 S.C. 280;
Gauvin v. Rancourt, [1953] R.L. 517 (Que. C.A.); Re Parsons (1926), 29 O.W.N. 430,
[19261 1 D.L.R. 1160 (the law was deemed to make a contract for the parties). Re
Tremblay, [1931] O.R. 781, at p. 784, 41 O.W.N. 162.
22Dicey, Conflict of Laws (7th ed. 1958), rule 85.
23Ibid. exception 2. Taillifer v. Taillifer (1891), 21 O.R. 337 (ante-nuptial contract
made in Quebec). See also in Re Jutras Estate, supra footnote 19, and in re Dr Nicols;
De Nicols v. Curlier, [1900] 2 ch. 410.
2 4Re Tremblay, supra, footnote 21. It has been held in Re Klaukie’s will
(1873),
1 B.C.R. (pt. 1) 76 that a nuptial contract whereby the husband agrees not to alienate
his property from his wife will apply even to his real estate in a country other than
his domicile.
25Re Parsons, supra, footnote 21. De Nicols v. Curlier [1900] A.C. 21, rev. [1898]
2 Ch. 60 restoring [1898] 1 Ch. 403 and in Re Nicols; De Nicols v. Curlier, supra, foot-
note 23.
McGILL LAW JOURNAL
[Vol. 5
In the absence of an express or implied marriage contract or settlement
the property rights of the spouses are governed by the law of the matrimonial
domicile as regards present and future movable property in the common-law
provinces and both movables and immovables in Quebec. 2 The difficulty is
to determine whether these rights can be modified by a subsequent change of
domicile.
The Editors of Dicey state that “the rights of husband and wife to each
other’s movables, both inter vivos and in respect of succession are governed by
the law of the new domicile, except in so far as vested rights have been acquired
under the law of the former domicile. ‘ 27 The chief application of the rule, which
is not settled law in England, lies in the field of succession and here a problem
of characterization arises. A distinction must be made here between matters of
succession which are governed by the domicile of the husband at the time of
is governed by the law of the
his death and matrimonial property which
matrimonial domicile. 8 If the spouses were domiciled in a state by the law of
which they are separate as to property in the absence of an express contract,
the subsequent acquisition of a domicile in Quebec, for instance, does not have
the effect of creating a community of property between them.29 They cannot be
deprived of their property or contractual rights existing before the change of
domicile. On the other hand it can be argued that movable property acquired
up to the change of domicile will continue to be owned on a separate basis while
property acquired afterwards will be subject to the new law. This seems to be
the view of the Nova Scotia courts which held that the mutual rights of the
husband and wife as to movable property acquired by the law of the matrimonial
domicile are not affected by a change of domicile, but rights acquired after such
change are governed by the law of the new domicile.30 It is submitted, however,
that a better interpretation is that the law of the matrimonial domicile should
continue to govern the property rights of the spouses even as to movable
property acquired in the new domicile. To adopt another view would endanger
the rights of the wife. It would also be inconsistent to say on the one hand
that the matrimonial regime has not changed, and yet, in a case where spouses,
2 0Astill v. Hallie (1877), 4 Q.L.R. 120 (Rev.); Belanger v. Carrier, [1954] Q.B.
125, rev. [1954] R.L. 202; McMullen v. Wadsworth (1899), 14 A.C. 631.
2 7Rule 129, which is based on Lasley v. Hog (1804), 4 Patan 581.
2 3Falconbridge, op. cit., p. 105 et seq. If the court characterizes the problem as one
of succession to movables, the wife’s right will be governed by the law of the domicile
of the husband at the time of his death and immovables by the lex rei sitae. If it char-
acterizes it as a matter of matrimonial property the law of the domicile of the husband
at the time of the marriage will apply. Cf. Beaudoin v. Trudel, [1937] 1 D.IR. 216,
[1937] O.R.1 .to Re Parsons, supra, footnote 21.
2 OGauvin v. Rancourt, supra, footnote 21 ; Astill v. Hallie, supra, footnote 26. Fal-
conbridge, op. cit., p. 105; Dicey, op. cit., rule 129, comment.
SOPink v. Perlhs & Co., (1898), 40 N.S.R. 260.
No. 1 ]
PRIVATE INTERNATIONAL LAW
whose matrimonial domicile was New York, remove their domicile to Quebec,
hold that one-half of the property acquired by the wife there belongs to the
husband. In Quebec it is well settled that the property rights of spouses, married
in
without a marriage contract, are governed as regards even
Quebec by the law of their matrimonial domicile and are not affected by a
change of domicile.31
immovables
In the common-law provinces, in the absence of a marriage contract express
or implied by the law of the matrimonial domicile, the lex rei .itae applies
whether the immovable property acquired is situated within the jurisdiction or
abroad. From the point of view of simplicity it would seem better to adopt the
Quebec view that the law of the matrimonial domicile will govern the property
rights of the spouses both present and future and whether movable or im-
movable.
III-MATRIMONIAL DOMICILE AND CAPACITY
Does the capacity of a married woman to contract, dispose of her property,
or to appear in legal proceedings change with her domicile, or is it fixed once
and for all by the matrimonial domicile? For instance, where consorts whose
matrimonial domicile is in New York move their domicile to Quebec, will the
wife find her capacity limited so that she cannot sue or contract without the
authorization of her husband, as she could in New York? The problem arises
quite often in this province where the wife must obtain the authorization of her
husband to contract or appear in judicial proceedings. 32
What if land is involved? Will her capacity to dispose of that land be
governed by the lex rei sitae or by the lex domicilii? In the province of Quebec
it would appear that the authorization of the husband is considered as a matter
of capacity to be governed in all cases by the law of her new domicile,33 while in
the common-law provinces it would be considered as a matter of form3 4 to be
governed by the proper law of the contract. On the other hand, Dr. Johnson and
Loranger 5 are of the opinion that the capacity of consorts as to their property
rights is fixed once and for all by the law of the matrimonial domicile. It seems
that this interpretation is not possible in the light of article 6 of the Quebec
Civil CodeY 6 In Ontario it has been held that the capacity of the wife to convey
3’johnson, op. cit., vol I, p. 379.
32C.C. 176, 177: See Ryan v. Pardo, [1957] R.L. 321 (Que.), capacity to sue is
governed by the law of the plaintiffs domicile.
33C.C. 6; Lafleur, The Conflict of Laws in the Province of Quebec (1898), p. 70.
34op. cit., p. 412.
3 5 L’incapacit6 de la femme marie (1898), 4 R.L. (n.s.) 145.
36But see Laviolette v. Martin (1861), 2 L.C.J. 61, 5 L.C.J. 211, 11 L.C.R. 254
(Que. C.A.). Note that in Quebec the right to make gifts between consorts is governed
by the law of the domicile of the consorts at the time they are conferred: Gauvin v.
Rancourt, supra, footnote 21.
McGILL LAW JOURNAL
[Vol. 5
land is governed by the lex Sit
7 and not by the laws of the place of her
domicile. As in the case of matrimonial property there still exists much confusion
in both the civil law and common-law provinces. Clarification of the law could
do much in removing the present uncertainties.
“3
IV-NULLITY
(a) JuRisDicTIoN OF COURTS WITH REGARD TO ANNULMENT
The law of marriage, induding annulment, applied in the common-law
provinces is derived from English law,38 and English conflict rules have had
a great influence on the rules adopted by their courts.3
In Shaw v Shaw,40 a British Columbia decision, it was held that where
the marriage, by application of the proper law, is voidable, the court has no
jurisdiction to annul it if the petitioning wife is resident in the province but the
respondent husband is neither resident nor domiciled there at the time of the
petition and the marriage was not celebrated in the province. The residence of
the petitioning wife is not sufficient to give jurisdiction to grant the decree 41
In Fleming v. Fleming,4 the Ontario court held that in the case of a voidable
marriage considerations governing jurisdiction in divorce cases are applicable
by analogy and the jurisdiction is based on the domicile of the parties.42 On the
31Landreau (Landry) v. Lachapelle, [1937] 2 D.L.R. 304, [1937] O.R. 444 affirming
[1937] 1 D.L.R. 87, [1936] O.R. 569 and criticism by Falconbridge op. cit., p. 629 et
seq. (Here the consorts never changed their domicile). See also Dicey, op. cit., p. 515.
3sSince the enactment of the B.N.A. Act, the Federal Parliament has exclusive
jurisdiction to legislate on the subject of marriage and divorce. The provinces retain
exclusive power to legislate on the solemnization of marriage. Any legislation passed by
provincial
in force until amended or
repealed by the Federal Parliament in case of marriage or divorce.
legislatures before the B.N.A. Act remains
391n general Falconbridge, op. cit., pp. 663 et seq. and Kennedy, Recognition of
Foreign Divorce and Nullity Decrees (1957), 35 Can. Bar Rev. 628 at 647 et. seq.
40[1945] 1 W.W.R. 156, 61 B.C.R. 40, [1945] 1 D.L.R. 413 aff’d., [1945] 3 W.W.R.
577, 62 B.C.R. 52, [1946] 1 D.LR. 168. Cf, Gower v. Starrett, [1948] 2 D.L.R. 853,
[1948] 1 W.W.R. 529 (B.C.).
41See the English case De Reneville v. De Reneville, [1948) P. 100, 64 T.L.R. 82
and Inverclyde v. Inverclyde, [1951] P. 29 overruled by Raimsy-Fairfax (Otherwise
Scott Gibson) v. Ramsay-Fairfax, [1953] 3 W.L.R. 849, [1953] 3 All E.R. 695 (CA.),
which held that common residence of the parties was sufficient. In other words, there is
no difference between void and voidable marriages in the matter of jurisdiction of
courts. Also Easterbrook v. Easterbrook, [1944] P. 10; and Hitter v. Huter, [1944]
P. 95. See Grodecki, Recognition of foreign nullity decrees (1958), 74 L.Q. Rev. 225.
42[1934] 4 D.L.R. 90, [1934] O.R. 588.
43 For the application of the Divorce Jurisdiction Act 1930 to the annulment of a
voidable marriage: LeBlanc v. LeBlanc, [1955] 1 D.L.R. 676 (N.S.). See also s. 13
of The Matrimonial Causes Act 1937 (Engl.) 1 Ed. VIII & 1 Geo. VI c. 57. In
Sheppard v. Sheppard, [1947] 2 *W.W.R. 826 (B.C.)
it was said that the court does not
acquire jurisdiction over the subject matter by mere appearance of
the defendant
No. 1]
PRIVATE INTERNATIONAL LAW
other hand, if both parties aie domiciled in the province it would not matter
whether the marriage is void ab initio or voidable and the local court will have
jurisdiction. In other words, where the marriage is voidable it would appear that
domicile of the respondent husband is the basis of jurisdiction. 44 The wife
acquires the domicile of the husband and the court of the common domicile has
jurisdiction.43 Yet where the marriage is void ab initio each party retains his
or her domicile and the domicile of the petitioner 46 or respondent 47 within the
jurisdiction seems sufficient.
Residence of both parties or of the respondent is also sufficient to give
jurisdiction in the case of a marriage void ab initio, while the residence of the
petitioner alone is not.48 In Hutchings V Hutchzings, 4 9 it was held that the court
has no jurisdiction to entertain an action for a declaration of nullity where the
respondent is neither domiciled nor resident within the province and the mar-
riage was not celebrated therein. 50 The rationale for these decisions is that since
there has never been a legal marriage and a judgment for the plaintiff is only
declaratory, there is no departure from the rule that a change of matrimonial
status can be affected only by the courts of the matrimonial domicile. The fact
that the marriage has been celebrated within the jurisdiction, irrespective of the
domicile or residence of the parties, has also been adopted by some courts as a
good basis for jurisdiction.51
In the province of Quebec no specific article of the Code of Civil Procedure
gives the courts jurisdiction in matters of annulment of marriage but they have
(voidable marriage). The act confers jurisdiction on a provincial court to entertain
divorce proceedings brought by a deserted wife when her husband has become domiciled
outside the province See infra.
44Diachuk v. Diachuk, [1941] 2 W.W.R. 599 (Man.); Fleming v. Fleming, supra,
footnote 42; Szrejher v. Szrejher, [1936] O.R. 250, [1936] 2 D.L.R. 413; but see
G. v. G., 22 Sask. L.R. 376, [1928] 1 W.W.R. 651 and Reid v. Francis, [1929] 3 W.W.,R
102, 24 Sask. L.R. 1, [1929] 4 D.L.R. 311.
45Solomon v. Walters (1956), 18 W.W.R. 257, (1956), 3 D.L.R. (2d.) 78 (B.C.).
46 Bevand v. Bevand, supra, footnote 18. Spencer v. Ladd; Finlay v. Boeftner,
[1948] 1 D.L.R. 39, [1947] 2 W.W.R. 817 (Alta.), but see Gower v. Slarrelt, supra,
footnote 40 and Shaw v. Shaw, supra, footnote 40 per Sidney Smith J.A.
47Bevand v. Bevand, ibid, at p. 856 (D.L.R.); Manella v. Manella, [1942] 4 D.L.R.
712, [1942] O.R. 630, noted (1934), 21 Can. Bar Rev. 149; of course domicile of both
parties within the jurisdiction is sufficient, Gill v. Gill, supra, footnote 18.
48 Whitaker v. McNeilly (1957-58), 23 W.W.R. 210, (1958), 11 D.L.R. (2d.) 90
(B.C.), relying on the Ramsay-Fairfax decision, supra footnote 47, although this was
not necessary in that case; Adelman v. Adelman, [1948] 1 W.W.R. 1071 (Alta.);
Purdy v. Purdy, [1919] 2 W.W.R. 551 (B.C.)
(the residence must be bona fide.).
49[1930] 4 D.L.R. 673, 2 W.W.R. 565, 39 Man. R. 66.
5oSee also Manella v. Manella, supra, footnote 47.
51G v. G., [1928] 1 W.W.R. 651, 22 Sask. L.R. 376 (Voidable); Reid v. Francis,
supra, footnote 44; Hinds v. McDonald, [1932] 1 D.L.R. 96; Bevand v. Bevand, supra,
footnote 18; Gower v. Starrett, supra, footnote 40; Spencer v. Ladd, [1948] 1 D.L.R.
39; Shaw v. Shaw, supra, footnote 40.
McGILL LAW JOURNAL
[Vol. 5
generally based it on domicile within the province. In Main v. Wright, 2 the
Court of Appeal based its view, erroneously in my opinion, on the ground that
article 6 of the Civil Code, which declares that status is governed by the law of
the domicile, is also a jurisdictional rule giving exclusive competence in matters
of annulment (ratione rnateriae) to the courts of the domicile of the parties.
Here the spouses were both domiciled in Washington, D.C. at the time of the
petition. Their marriage had been celebrated in Quebec after the wife had
obtained a divorce from a prior marriage in Vermont while she and her first
husband were domiciled in Quebec. The court unanimously rejected the appli-
cation of English law. The fact that the marriage took place in the province of
Quebec could not give jurisdiction to the courts to dissolve it.m Quebec courts
are forum non-conveniens in such cases, as they could not give an effective
decree which would be recognized in the state of the domicile. 54 One of the
judges would have been prepared to hold that since the marriage was absolutely
null, the respondent-wife had never acquired a domicile in the United States
and was still domiciled in the province of Quebec. However, impressed by his
colleagues’ views that the merits of a case cannot be invoked in the determina-
tion of a question of jurisdiction, he did not enter a dissenting opinion. Another
judge emphasized that whether the marriage was absolutely or relatively null,55
a decision of the court was necessary to put an end to the relationship. Con-
sequently, the distinction had no effect on the question bf jurisdiction, and the
wife was deemed to have acquired the domicile of her husband. It would seem
that the court erred in characterizing article 6 of the Civil Code as a rule of
jurisdiction, while it is exclusively a rule of conflict of laws. Article 6 specifies
the laws to be used in Quebec courts and not the courts which have jurisdiction.
One must separate questions of choice of law from rules of jurisdiction. Article 6
does not suggest that the only court which has jurisdiction in matters of status
is that of the domicile. Actually it should not matter which court exercises
jurisdiction, so long as the proper law is applied by the court. In Sombery v.
Zaracoff and Rothblatt, 6 which involved an almost similar situation,
the
Superior Court reaffirmed the competence of the court of the domicile, but here
it took jurisdiction on the ground that the respondent wife was domiciled in
52[1945] K.B. 105 (Que. C.A.).
5aBut see Trott v. Parkes, [1945] S.C. 1 (Que.).
54This is not necessarily true since here
tfie conflict rules of the District of
Columbia may recognise jurisdiction based on the place of celebration of the marriage.
On the other hand, it would probably have recognized the Vermont divorce as valid
on the basis of the full faith and credit clause and therefore the Quebec decree would
not have been recognized.
05For the purpose of the discussion one may assume that the civil law notions of
absolute and relative nullities are the same as the common-law notions of void and
voidable.
50[19491 S.C. 301 (Que.).
No. 1]
PRIVATE INTERNATIONAL LAW
Quebec while the petitioner husband was domiciled in Ontario, and the decree
could be effectively enforced since the petitioner was domiciled in Canada. The
court professed to have considered Main v. Wright, but its decision is certainly
not in agreement with it. Not only did the court in order to take jurisdiction
examine the merits of the case to decide that, since the marriage was void ab
initio, the wife had retained her domicile in Quebec, but the argument of effect-
iveness based on domicile in Canada was completely unfounded, as again it
depended exclusively upon the views entertained by the Ontario courts on this
problemY7 Although the doctrine of stare decisis does not apply in Quebec, it is
likely that the views of the Court of Appeal will prevail. This is unfortunate
from the point of view of the arguments advanced in their support. It also
restricts jurisdiction considerably. Yet the views of the Court of Appeal con-
form with the practice followed in matters of divorce and separation.
The modem trend in the common-law provinces which has recently, been
adopted by the English Court of Appeal in the Ramsay-Fairfax case seems to be
that expressed by the British Columbia courts in Gower v Starrett :5 that the
elements which give jurisdiction in a nullity action are the same regardless of
whether the declaration is sought on the ground that the marriage was void
ab initio or merely voidable. Jurisdiction which cannot be conferred on the court
by the attornement of the respondent thereto is based on the domicile of the
parties, or on the residence of the respondent within the jurisdiction, or on the
ground that the marriage was solemnized there. This is no doubt the best
approach.
As in other areas of the law of domestic relations, clarification is needed
and recent developments in Canada and in England indicate that this is under
way. The preliminary step is to separate rules of jurisdiction from choice of
law rules. Once a court has taken jurisdiction on the basis of the forum’s rules
to that effect, it is in a position to apply the proper law. To apply that law to
ascertain even indirectly its jurisdiction is most illogical, as it implies a provi-
sional decision on the merits, while under ordinary rules of procedure the
question of jurisdiction is to be raised in limine litis as a preliminary exception.
Local jurisdiction cannot be made dependent upon some foreign law, even though
applicable by virtue of the forum’s conflict rules, especially if important social
interests are at stake. It is to be hoped that the principles expounded in Gower
v. Starrett and in the Ramsay-Fairfax case will soon be adopted in all Cana-
dian common-law jurisdictions.59 In Quebec, short of legislative action it is
doubtful whether the rules as stated in Main v. Wright will be modified.
571n fact the Ontario courts would probably have recognized the decree. See supra.
58 Supra, footnote 40.
59Note that in England the Report of the Royal Commission on Marriage and
Divorce (Cmd. 9678) rests on the distinction between void and voidable. The Commis-
sion recommended that the bases of jurisdiction in respect of voidable marriages should
be materially similar to those suggested in the case of divorce (domicile of either party
McGILL LAW JOURNAL
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Once the courts have acquired jurisdiction they will apply the proper law
relating to annulment, that is, the lex celebrationis or the lex domiciii of the
parties at the time of the marriage. 60 In Quebec, a decree of nullity retroactively
annuls the marriage but the courts by application of articles 163 and 164 of the
Civil Code may grant putative effect to the marriage annulled. It will produce
civil effects with regard to the husband, wife and children if contracted in good
faith. If, on the other hand, good faith exists on the part of one of the parties
only, it produces civil effects in favour of such party alone and the children
issued from the marriage. This has been applied to parties domiciled in Quebec
at the time of their marriage,61 but it would seem logical that if by the law of
is granted, it should be
the foreign domicile of the parties a similar effect
recognized in Quebec or in any other Canadian province.
(b) FoREIGN DECRmES oF NULLITY
A foreign decree of nullity granted by the courts of the domicile of the
parties will be recognised. 62 Whether Canadian courts would recognize foreign
decrees based on jurisdictional grounds similar to those prevailing in Canada is
not yet settled. There is certainly great merit in Dr. Falconbridge’s view that
“In an ideal system of conflict of laws the cases in which a court exercises
jurisdiction should correspond exactly with the converse cases in which it
recognizes the binding force of judgments rendered by *foreign courts.”‘ 3
V-JUDICIAL SEPARATION
In New Brunswick and Nova Scotia the Court of Divorce and Matrimonial
Causes has jurisdiction to grant judicial separation, while this is exercised
Judicial separation can also be
by the Supreme Court in Newfoundland.”
at commencement of proceedings, common residence at commencement of proceedings,
and, where the last matrimonial residence was in England, the presence of the petitioner).
The Commission also recommended that jurisdiction to declare a marriage void should
be based on domicile or presence of the petitioner in England at-the commencement of
proceedings. The commission did not explicitly deal with ihe determination of void
and voidable marriages. For an analysis and criticisms of these rules see Mann, The
Royal Commission on Marriage and Divorce: Jurisdiction of the English Courts and
recognition of Foreign Decrees (1958), 21 Mod. L. Rev. 1, at p. 12 et seq.
O0Hunt v. Hunt, supra, footnote 8.
GlStephens v. Falchi, [1938] 3 D.L.R. 590, [1938] S.C.R. 354 (Que.); Berthiaume
v. Dastous, supra footnote 2; Baraket v. Eddy, [1932] 70 S.C. 125 (Que.). Flam v.
Flitman (1958), 14 D.L.R. (2d.) 174 (Que.).
62 Wilcox V. WilcoX (1914), 6 W.W.R. 213, 24 Man. R. 93, 27 W.L.R. 359, 16
D.L.R. 491; Fleming v. Fleming, supra, fooinote 42.
e3Op. cit. p. 690, to the same effect Kennedy, op. cit. supra, footnote 39.
6 4Hounsell v. Hounsell (1949), 23 M.P.R. 59 (Nfld.).
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PRIVATE INTERNATIONAL LAW
obtained in Quebec and in the Western provinces, while Ontario Courts have
held that they have no jurisdiction to grant a decree of separation. 65 Jurisdiction
is generally based on domicile.66 Thus, in Quebec, according to article 96 of
the Code of Civil Procedure, the defendant must be summoned before the court
of the husband’s domicile or, if he has left his domicile, before that of the last
common domicile of the consorts. 67 In Alberta jurisdiction to hear actions for
judicial separation exists when both parties are domiciled in Alberta at the time
of the commencement of the action or had a matrimonial home in Alberta when
their cohabitation ceased, or are resident in Alberta at the time of the com-
mencement of the action. 68 In British Columbia in Jamieson v. Jamieson,69 it
was held that a decree of judicial separation may be granted to a wife in the
province wherein she has taken up permanent residence although the husband
is not domiciled or permanently residing there, if she has been obliged to leave
him because of his cruelty and misconduct and he is temporarily resident in
British Columbia. Residence is certainly a good ground for jurisdiction espe-
dally if the conduct of the spouses causes a public scandal and so long as the
defendant has had good notice of the action and an opportunity to defend. 70
It has been held that foreign separation decrees will be recognized in
Canada if rendered by the courts of the domicile of the spouses.71
65 Power, The Law and Practice Relating to Divorce (1948), p. 162.
66Paslowski v..Paslowski (1955), 17 W.W.R. 524 (Sask.).
67See for instance Mills v. Morrison, [1947] P.R. 282 (Que.); Duval v. Panghorn,
(1944), 47 P.R. 120 (Que.) ; Martel v. Bertrand (1942) 45 P.R. 237 (Que.); Irwin
v. Gagnon (1917), 23 R.L. (n.s.) 264 (Que.) ; Brown v. Waldinan (1929), 32 P.R. 199
(Que.). However, in Quebec separation from bed and board is equivalent to divorce,
while, in the common-law provinces it does not affect the matrimonial status of the
parties: consequently residence of the defendant should be sufficient. See Power, op. cit.,
p. 285 et seq. Johnson, op. cit., vol. III, p. 684 et seq.
68The Domestic Relations Act, R.S.A., 1955, c. 89, s. 7. It is doubtful whether the
Alberta statute is constitutional, Power, op. cit., p. 161 et seq.
69(1908), 9 W.L.R. 419, 14 B.C.R. 59; Manley v. Manley and Weeks, [1939] 2
W.W.R. 44, [1939] 2 D.L.R. 787 (Sask.).
7ocf. Miller v. Miller, [1929] 3 W.W.R. 167 (Man.) ; Burnett v. Burnett, [1954]
1 W.W.R. 585, 61 B.C.R. 342, [19541 3 D.L.R. 319. Note that an invalid foreign divorce
is no defence to an action in separation. Rexord v. Fraser, [1942] 45 P.R. 24 (Que.).
71 Deiro v. Detro, [1923] 3 W.W.R. 690, 70 D.L.R. 61, at p. 63 (Alta.). In Quebec
in Ryan v. Pardo, (supra, footnote 32), it is said that “article 96 applies exclusively to
jurisdiction based on residence which according to Le Mesurier v. Le Mesurier would
be recognized in certain circumstances as giving jurisdiction to decree separation.”
Note that there is no reason why Quebec courts should not recognize foreign separation
decrees based on jurisdictional grounds simllar to those found in article 96 of the Code
of Civil Procedure. For a valid foreign decree as to separation of property see Goudron
v. Lemonier (1883), 1 M.L.R. (S.C.) 160, 8 L.N. 100 (Que.) As to separation agree-
ments see Charron v. Montreal Trust Co. [1958] O.W.N. 357 affirming [1958] O.W.N.
McGILL LAW JOURNAL
[VOL 5
VI-DIVORCE
(a)
JURISDICTINoT
Divorce can be obtained in the courts of all provinces ‘except in Quebec2
and Newfoundland,74 where an Act of Parliament is necessary. The courts will
entertain the action if in their eyes the husband is domiciled within the jurisdic-
tion at the time of the commencement of the proceedings.7 5 The citizenship of
the parties, the place of celebration of the marriage, as well as the fact that
the offence was committed outside the province, are immaterial.
In Cook v. Cook and Atty.-Gen. for Alberta 8 it was held that a wife
deserted by her husband cannot acquire a domicile separate from him so as to
give the courts of that domicile jurisdiction to dissolve the marriage. even
though she was judicially separated from him. This decision has no application
in Quebec where article 207 of the Civil Code, states that separation :’… gives
the wife the right of choosing for herself a domicile other than that of her hus-
band.” In order to diminish the harshness of the Cook rule in the common-law
provinces, the Federal Parliament in 1930 passed the Divorce Jurisdiction Act,7
whereby a wife may bring an action in the province where her husband was
domiciled immediately prior to his desertion. 78 She must show that she has
72See Falconbridge, op. cit., pp. 726 et seq.; Read, Recognition and Enforcement
(1938)
of Foreign Judgments in the Common Law Units of the British Commonwealth
p. 200 et seq.
73C.C. 185.
74 See Kennedy, Conflict of Laws, Recognition of Foreign Divorce in Newfound-
land (1954), 32 Can. Bar Rev. 211.
7 5Myanduk v. Myanduk, [1931] 1 W.W.R. 755, [1931] 2 D.L.R. 693 (Alta.) ; Welsh
v. Bagnall, [1944] O.R. 526, [1944] 4 D.L.R. 439; Harris v. Harris, [1930] 1 W.W.R.
[1930] 4 D.L.R. 736; Adams v. Adams (1909), 11 W.LR. 358 (B.C.);
173 (Sask.),
Waggoner v. Waggoner (1956-7), 20 W.W.R. 74 (Alta.); Meise v. Meise, [1947]
1 W.W.R. 949 (Sask.); Kalenczuk v. Kalenczuk, [1920] 2 W.W.R. 415, 13 Sask. L.R.
262, 52 D.L.R. 406 (C.A.) ; Cutler v. Cutler (1914), 6 W.W.R. 1231 (B.C.); Newell
v. Newell (1957), 21 W.W.R. 572 (B.C.C.A.); Mundell v. Mundell (1958), 65 Man.
L.R. 314; Service out of jurisdiction may-be obtained in a matrimonial cause, Ontario
Rule of Court 25 (1) (m). See also Pearson v. Pearson, [1951] O.R. 344, [1951] 2
D.L.R. 851.
76[1926] 1 W.W.R. 742, [1926] A.C. 444, [1926] 2 D.L.R. 762, noted (1929), 7
Can. Bar Rev. 126.
77R.S.C., 1952, c. 84; Martin, The Divorce Act (1930), 8 Can. Bar Rev. 561; Read,
The Divorce Jurisdiction Act 1930 (1931), 9 Can. Bar Rev. 73.
7BLevko v. Levko, [1947] O.W.N. 702; K. v. K., 17 M.P.R. 19, [1943] 2 D.LR.
102 (N.S.); L. v. L., [1943] 2 W.W.R., 308, [1943] 3 D.LR. 333 (Sask. C.A.);
Mundell v. Mundell, supra, footnote 75. Of course she can also sue him at his new
domicile at any time after he has acquired it. She does not have to be a resident in thd
old or new domicile.
No. I1]
PRIVATE INTERNATIONAL L-II
been deserted and that she has lived separate and apart from her husband for a
period of at least two years, and is still so living at the time of the petition.70
Contrary to the rule prevailing in case of annulment, once the court has
obtained jurisdiction it will apply its own internal law. No question of proper
law arises. This seems to be justified only in cases where the court adjudicating
the matter is that of the state or province, the law of which governs the status
of the parties as man and wife. Questions of choice of law relating to status
and of jurisdiction are separate, and
to whatever basis resort is made to
establish the jurisdiction of the court which adjudicates the rights of the parties,
it is submitted that whether or not the divorce is to be granted should depend
upon the domiciliary law. The divorce suit involves the detrmination of the
status of the parties and consequently must be governed by the law of their
domicile. Divorce must not be considered as a matter of jurisdiction alone.
(b) RECOGNITION OF FOREIGN DIVORCES
Foreign divorces whether granted outside Canada or in one of the pro-.
vinces will be recognised in all provinces, including Quebec.80
The recognition of foreign divorces is considered as a question of juris-
diction and not of choice of the proper law governing the merits of the action.
It does not matter that the divorce has been granted for a reason which would
not have been a ground for divorce in the province where the foreign decree is
sought to be enforced, so long as the divorce was rendered by a court of com-
petent jurisdiction according to the views of the forum.8 ‘
79McLcod v. McLeod, [1931] 1 W.W.R. 811 (Alta.); Power, op. cit. s. 70. p. 285;
Schiach v. Schiach, [1941] 1 W.W.R. 551 (Sask.),
[1941] 2 D.L.R. 590; Porkolab v.
Porkolob, [1941] 1 W.W.R. 535 affd. 2 W.W.R. 489, [1941] 3 D.L.R. 578 (Sask.).
Note that there is no such thing as a Canadian domicile for the purpose of divorce:
Wilton v. Wilton, [1946] O.R. 117, [1946] 2 D.L.R. 397; Kfarriaggi v. Marriaggi,
[1923] 3 W.W.R. 849, [1923] 4 D.L.R. 463 (Man.) Note also that in New Brunswicks.
20 of The Married Women’s Property Act, R.S.N.B., 1952, c. 140, states that under
certain conditions set out, even though her husband may have acquired a domicile
elsewhere, the wife’s domicile will continue to be in New Brunswick so long as she
maintains a bona fide residence in that province. Thus, a wife may sue for divorce if
her husband is domiciled there at the time the action is brought or if she comcs within
the provisions of the New Brunswick statute, or the Act of 1930.
80Gauvin v. Rancourt, supra footnote 23; Johnson, Recognition of Foreign Divorce
of Consorts Domiciled in Quebec at Marriage (1954), 14 R. du B. 301 op. cit., vol. II,
p. 1 et seq. Falconbridge op. cit., p. 736 et seq; Power, op. cit., p. 125 et seq.- Kennedy,
op. cit., supra footnote 28.
SHenderson v. Munccv, [1943] 2 W.W.R. 120, 59 B.C.R. 57, [1943] 3 D.L.R. 515
affd. [1943] 3 W.W.R. 242, 59 B.C.R. 312, [1943] 4 D.L.R. 758 (C.A.); Burpee v.
Burpee, [1929] 2 W.W.R. 128, 41 B.C.R. 201, [1929] 3 D.L.R. 18; Goldenberq 7’. Triffon,
[1955] S.C. 341 (Que.). Walker v. Walker, [1950] 2 W.W.R. 411, [1950] 4 D.L.R. 253.
(B.C.)
(Collateral attack except by person not party to the original proceedings).
McGILL LAW JOURNAL
[Vol. 5
The. rules adopted by Canadian courts to test a foreign court’s jurisdiction
reflect the rules for domestic jurisdiction. Thus they have adhered to the rule
laid down in Le Mesurier v Le Mesurier8 2 that the domicile of the husband in
the Canadian sense is the basis of
jurisdiction in matters of
divorce. The state, province or country in which, in view of the unity of
domicile,8 3 the husband has his domicile has sole jurisdiction to terminate the
marriage by divorce.8 4
international
In the case of provincial divorces, jurisdiction based on the Act of 1930
will also be recognized. If Canadian courts follow Travers v. Holley85 which
held that English courts “should recognize a jurisdiction which they themselves
claim” it may be assumed that a foreign court’s decree based on grounds similar
to those contained in the Act of 1930 will be recognized in Canada, at least in
the common-law provinces having divorce courts. As Dr. Kennedy pointed
out,80 this is not a problem of comparing the grounds of jurisdiction of each
court. The law of both places does not have to correspond. One must look to
the facts of the case to see if the local court would have given a decree in those
circumstances. The court “will not compare laws but will merely ascertain
whether in roughly comparable circumstances it would have acted . . .The
comparison is between the facts of the individual case applied to the law of the
two countries involved and not the laws generally. ‘ ‘
Except for the special case provided for in the 1930 Act, whether both
parties must have been domiciled where the decree was rendered or whether
82[1895] A.C. 517.
83Atty.-Gen. for Alberta v. ook, supra footnote 76.
8 4R. v. Woods (1903), 6 O.L.R. 41 (Mich. div.); Potratz v. Potratz, [1926] 1
D.L.R. 147 (Sask.) (South Dakota Div.); Thomson v. Crawford, [1932] O.R. 281,
[1932] 2 D.L.R. 466, affd. [1932] 4 D.L.R. 206 (CA.)
(Nevada div.) Cassavallo v.
Cassavallo, [1911] 1 W.W.R. 212 (Alta.)
(Washington Div.); Cox v. Cox, [1918] 2
(Minnesota Div.); Drummond v. Higgins [1944] K.B. 413 (Que.)
W.W.R. 422 (Alta.)
(Spanish Div.); Drake v: MacLaren, [1929] 2 W.W.R. 87 (Alta.). (Nev. Div.);
MacDonald v. Nash, [1929] 2 W.W.R. 84 (Man.) (Nev. Div.); Magurn v. Magurx
(1885), 11 O.A.R. 178 (Missouri Div.); Kon v. Woodward and the Atty.-Gen. of the
Prov. of Que., [1956] S.C. 202 (Mass. Div.); L. v. M., [1951] S.C. 275
(Que.)
(Florida Div.); Lofthouse v. Lofthouse (1908), 12. O.W.R. 140 (South Dak Div.);
Cromarty v. Cromarty (1917), 39 O.L.R. 481 affd. 39 O.L.R. 571
(Illinois Div.);
Nusselman v. Novik and Stromberg, [1949] S.C. 431 (Que.)
(Ohio Div.); Yates v.
Yates (1924), 34 Man R. 638 (Washington Div.); Gauvin v. Rancourt, supra, footnote
21; Douglass v. Hodgins (1957), 7 D.L.R. 2d. 57 (Ont.)
(Mich. Div.); White v.
White, [1958] O.W.N. 15 (Ont.)
(Man. Div.); Omelganow v. Omelganow, [1958]
O.W.N. 13 (Ont.) (Sask. Div.).
85[1953] P. 246, [1953] 2 All. E.R. 794 (C.A.).
800p. cit., at p. 638.
8 ‘Ibid., at p. 643. In the province of Quebec one could argue that since separation
from bed and board (mensa et thoro) is the matrimonial remedy which takes the place
of divorce (a vinculo), by analogy to article 96 of the Code of Civil Procedure, foreign
divorces rendered by the courts of the last common domicile, if the husband has left it,
should be recognised.
No. I1]
PRIVATE INTERNATIOAAL LAW
the domicile of one is sufficient arises only in Quebec where the principle of
unity of domicile does not exist in certain circumstances. In that province a wife
is allowed to acquire a forensic domicile separate from that of her husband in
two cases. The first one involves Stevens v. Fisk.8 where the parties domiciled
in the State of New York were married there in 1871. The defendant husband
then moved to Montreal where he established his domicile. The plaintiff-wife lived
with him in Montreal until 1876 when she returned to New York, where, in
1880, she obtained a divorce. She later brought an action in Quebec for an
accounting of her husband’s administration of her property and the question
arose whether she was entitled to sue without first obtaining his authorization
as required by the Quebec Civil Code. The Supreme Court of Canada upheld
the validity of the divorce. The Chief Justice rested his decision mainly on the
ground that the husband had submitted to the jurisdiction of the New York
court by having been personally served and appearing, although he did” not
the husband’s
contest the suit. Some of the other judges held that besides
submission to the jurisdiction, the New York court had jurisdiction because the
marriage was celebrated in New York, and, according to the law of that state,
for the purpose of divorce the wife may establish her own domicile. The
decision has often been criticized in Quebec on the ground that, in the absence
of a separation from bed and board, a wife cannot acquire a domicile separate
from her husband,8 9 and in the common-law provinces as a result of the
decision of the Privy Council in Attorney-Gen. for Alberta v. Cook.
The other situation arises where the unity of domicile is broken by a
separation from bed and board. Thus in Monette v. Larivire,90 the parties
were married while domiciled in Quebec in 1908. In 1916 the wife was granted
a decree of separation from bed and board. Her husband then removed his
domicile to Massachusetts and sent her no support. Thereupon she sued her
father-in-law in Quebec for maintenance, which was granted. In 1924 the
husband secured a decree of divorce in Massachusetts and his father-in-law,
believing he was freed from his obligation under the decree for maintenance,
brought an action to set it aside. The action failed as the foreign divorce was
not properly proved, but the Court of Appeal reasoned obiter. It adopted the
view that since the wife was still domiciled in Quebec she had never ceased to be
subject to the laws of that province as regards her status. Only the courts of
her domicile had authority to modify it. On the other hand, the status of the
husband could properly be changed by the courts of his domicile. The husband
was validly divorced and one must assume could remarry in Quebec, while his
first wife was still married to him. Presumably the same rule would apply if
88(1882), 5 L.N. 79, (1883), 6 L.N. 329, 27 L.C.J. 228, (1885), 8 L.N. 42 (S. Ct
Can.)
61 D.L.R. 409 (Alta.).
89 See for instance Carter v. Lemoine (1926), 26 P.R. 56 (Que.).
9o(19 26), 40 K.B. 350 (Que.). Cf. Campbell v. Campbell, [1921] 2 W.W.R., 849,
McGILL LAW JOURNAL
[Vol. 5
the wife leaves the province and the husband remains behind. The case is also
interesting from the point of view of the jurisdictional rules which Quebec
courts are prepared to recognize. One of the judges stated that for a foreign
court to be internationally competent, the domicile of the defendant must be
within the territorial jurisdiction of the court adjudicating, or the cause of action
must have arisen and the defendant been personally served there, or the defend-
ant must have property there. Should this view be followed by other Quebec
decisions it would constitute a radical departure from the established practice.
Recognition of foreign decrees would be allowed on a much broader basis than
in any common-law jurisdiction. 91 The practice followed in Quebec is to a
certain extent similar to that which prevails in the United States; there, where
the husband and wife have separate domiciles, a divorce may be secured at the
domicile of either spouse and will be recognized elsewhere. 92 Does this mean that
the decree is binding on both spouses? The authorities are not clear. One possi-
bility is to follow the Monette v. Larivi~re view and hold that it is binding on
one spouse only, yet one cannot ignore the merit of Goodrich’s argument when
he states :93
If Michigan can free the wife from the husband, the necessary consequence is
also to free the husband from her. The logically difficult problem was answered
when our courts said that the wife could have a separate domicile and sue for
divorce there. This was done because of the hardship wrought by the rigid” rule
that the wife’s domicile followed that of her husband. Having taken this step, it is
illogical in principle and unjust to the parties not to recognize its necessary conse-
quences. The conception of a husband without a wife or a wife without a husband
may be a metaphysical possibility, but it is a reproach to the common law whose
courts and lawyers have always prided themselves upon freedom from mere theore-
tical speculation and boasted of practical contact with hard fact. The only tenable
doctrine, it is submitted is to recognize the effects of a divorce to liberate both
parties when granted at the actual domicile of either. It is better to insist upon
the unyielding doctrine that husband and wife must always have the same domicile
than to adopt the rule allowing the wife to sue for divorce at a separate domicile
and then refuse to recognize the necessary consequences of such a step.
Where the husband was not domiciled in any of the Canadian provinces
at the time of the commencement of the action, a decree granted abroad in a
state where the wife has acquired a separate domicile or residence or in the
state of the husband’s residence may be recognized in Canada on the basis of
Armnitage v. Atty.-Gen.,9 if it is proved that the decree would be recognized
O1Note that the judge relied on Stacey v. Beaudin (1886), 9 LN. 363 (Que.), a
money judgment and articles 210-211-212 of the Code of Civil Procedure. No distinc-
tion was made by the judge between money judgments and divorce judgments. Note
also that the grounds for jurisdiction are most of those found in article 94 of the Code
of Civil Procedure which deals with matters purely personal. Quaere: Is divorce a
purely personal matter? Can also article 94 be applied by analogy to foreign divorce
cases when divorce is unknown in Quebec? For a criticism of this decision see Johnson,
op. cit., vol. II, p. 167 et. seq.
9 2 Williams v. North Carolina (1942),
93Handbook of the Conflict of Laws (3d. ed. 1949), p. 412.
94[1906] P. 135.
“17 U.S. 287.
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PRIVATE INTERNATIONAL LAW
as valid by the courts of the domicile of the husband. This decision enables
Canadian courts not only to diminish the harshness of the rule of unity of
domicile, but also allows a wider recognition of foreign decrees in Canada.95
A foreign decree rendered by the court of the husband’s domicile will not
be recognized if it was obtained by one party without notice to the other,
or by fraud as to the jurisdiction.9 6 A false pretence to a foreign court that
the bona fide domicile is within the jurisdiction will invalidate the decree.
On the other hand, the deliberate acquisition of a bona fide domicile for
the purpose of obtaining a divorce which could not be obtained in the
former domicile will be effective and give the foreign court jurisdiction to
decree a divorce, as motive in acquiring domicile is immaterial. In Quebec,
howeer, where the parties were formerly domiciled in the province, a foreign
decree rendered in such circumstances may not be recognized on the ground that
they have gone abroad with the intent of evading Quebec law, which prohibits
divorce.9 7 Fraud upon the law operates here in the same manner as public
policy.
Where the foreign court had no jurisdiction, the fact that the plaintiff has
invoked the jurisdiction and the defendant submitted to it, does not estop
anyone, including the parties to the suit, from attacking the decree as it relates
to their status. Consent or submission of one or both parties cannot cure a
defect of jurisdiction. 98 On the other hand, in Re Plummer9 and in- Carter v.
95Walker v. Walker, supra, footnote 81. Wyllie v. Martin, [1931] 3 W.W.R. 465;
44 B.C.R. 486, at p. 488. Burnfiel v. Burnfiel, [1926] 1 W.W.R. 657, 20 Sask. L.R. 407,
[1926] 2 D.L.R. 129; Holmes v. Holmes, [1927] 2 W.W.R. 253, [1927] 2 D.L.R. 979
(Alta). For instance husband and wife are married, domiciled in New York. The wife
establishes a domicile in Michigan and gets a divorce there which will be recognized
by virtue of the full faith and credit clause in New York. The decree will be recognized
in Canada; see also Morris, Recognition of Divorces Granted Outside the Domicile
(1946), 24 Can. Bar Rev. 73.
98Rothwell v. Rothwell, [1942] 3 W.W.R. 442- 50 Man. R. 249, [1942] 4 D.L.R.
767; Bavin v. Bavin, [1939] O.R. 385, [1939] 3 D.L.R. 328; Delaporte v. Delaporte
(1927), 61 O.L.R. 302, [1927] 4 D.L.R. 933, noted
(1927), 5 Can. Bar Rev. 166.
Biggar v. Biggar, [1930] 2 D.L.R. 940, at p. 945, 42 B.C.R. 329; Tetrault v. Baby, supra
footnote 21, but see Fields v. Fields, 58 N.S.R. 65, [1925] 2 D.L.R. 256. The objection
that a defendant did not receive due notice of the action can be taken only where at the
commencement of the action he was not domiciled or resident in the country where it
was brought.
97Johnson, op. cit. vol. II, p. 152.
98McGuigan v. McGuigan, [1954] O.R. 318, [1954] 3 D.L.R. 127; Foggo v. Foggo,
[1952] 5 W.W.R. (N.S.) 40, [1952] 2 D.L.R. 701 (B.C.); Smith v. Smith (1957), 40
M.P.R. 51 (N.S.); Cody v. Cody, [1927] 1 W.W.R. 603, 21 Sask. L.R. 391, [1927] 3
D.L.R. 349; Chatenay v. Chatenay, [1938] 1 W.W.R. 885, 53 B.C.R. 13, [1938] 3 D.L.R.
379. Cf .Stevens v. Fisk, supra, footnote 88, where as noted earlier the Supreme court
of Canada held that appearance of the defendant in the suit absolutely and without
protesting against the jurisdiction estopped him from invoking anew the want of juris-
diction.
“[1942] 1 D.L.R. 34, [1941] 3 W.W.R. 788 (Alta.).
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[Vol. 5
Patrick,0 0 it was held that one spouse who obtains an invalid divorce is pre-
cluded from attacldng the jurisdiction of the court in order to claim a share in
the estate of the other spouse. 10 The foreign decree is not validated; it is
recognized only to the extent of preventing the spouse who obtained the divorce
from taking advantage of his own wrong.
A marriage which has been legally dissolved according to the law of the
domicile will be recognized in Canada, whether this was done by legislative
action or by ecclesiastical tribunals.102
Today in all Canadian provinces domicile still remains the basis for juris-
diction in divorce cases, but while the unity of domicile has been retained in
the common-law provinces this has not been done in Quebec in all cases. As
in nullity actions, the jurisdictional bases for divorce should be extended and
it should be required that the court seized with the action apply the law of the
domicile of the spouses or of one of them. It is an error to believe that the courts
of the domicile should have exclusive jurisdiction in matters of divorce on the
ground that domicile governs matters of status just as it is an error to maintain
that in the case of immovables the courts of the situs have exclusive jurisdiction.
There is no reason for not recognizing foreign divorces rendered by the court
of the ‘residence of the parties, or of one of them, so long as the law of their
common domicile, if the unity rule is followed, has been applied and the pkrties
had notice and an opportunity to defend. This would 6ertainly remove divorce
mills. The Armitage rule has been most beneficial in many instances and should
be retained. As to Travers v. Holley, except in factual situations similar to those
which call for the application of the Act of 1930, there is little opportunity for
extending the jurisdictional grounds of recognition of foreign divorces unless
our domestic rules are changed by Parliament.
VII–CUSTODY DECREES
In Canada the custody of children is dealt with by the provincial legisla-
tion. 0 3
(a) Junsnxcrio
The general principle is that jurisdiction to award the .custody of children
is based primarily on domicile, that is, the domicile of the father at the time of
the application, 0 4 although there is great confusion in this area of the law. Where
100[1935] 2 D.L.R. 811, 49 B.C.R. 411, [19351 1 W.W.R. 383.
101s re Williams and A.O.U.W. (1907), 14 O.L.R. 482; Burpee v. Burpee, supra,
footnote 80; Cf. Burnfiel v. Burnfiel, [1926] 2 D.LR. 129, per Lamont J. (Sask. C.A.);
C. v. C. (1917), 39 O.L.R. 571, per Meredith C.J.C.P.; for a special situation see
Buehler v. Buehler (1956), 18 W.WR. (N.S.) 97, 4 D.L.R. 2d. 326 (Sask.) ; See also
Swairic v. Swaizic (1899), 31 O.R. 324 (alimony case).
0 2 Goldenberg v. Triffon, [1955] S.C. 341 (Que.).
10SPower, op. cit., p. 457 et seq. In ge-ieral see Johnson, op. cit. vol. II, p. 280
et seq.
10 4Frew v. Frew (1956), 18 W.W.R.
(N.S.) 384 (B.C.) although the child is
resident elsewhere. Cody v. Cody, supra, footnote 98. No order can be made where the
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PRIVATE INTERNATIONAL LAW
the wife sues for divorce at the last domicile of her husband under the Act of
1930 there is no reason for denying the right of the court to make an order for
the custody of the children issued from the marriage especially if they reside
with her. It has also been held that the presence of the child within the province
is sufficient to give the court jurisdiction to make an order respecting his
custody, although his dornicile is in another jurisdiction. 05 Thus many Canadian
courts will refrain from adjudicating upon the custody of a child if he is not
present within the territory over which the court has jurisdiction, unless the
person having the control and authority over the child is within that territory.10 6
Of course no order will be made if the child is neither domiciled nor physically
present within the province.
(b) FOREIGN DECkiEES
In this area of private international law the welfare and happiness of the
child has been the paramount consideration. Thus, Canadian courts will not
consider themselves necessarily bound by foreign orders as to custody.10 7 If a
child is living with his father in a foreign country or in another province in which the
father is domiciled. See for instance In re Equal Guardianship of Infants Act; In re
Heater (an infant) (1951), 1 W.W.R. (N.S.) 229, [1951] 1 D.L.R. 795 (B.C.).
1051n other words both the court of the infant’s domicile and that within whose
jurisdiction he is present have jurisdiction. Masterson v. Masterson, [1948] 1 W.W.R.
642, [1948] 2 D.L.R. 696 (Sask. C.A.) overruling Cody v. Cody, Ibid. and explaining
in Re McGibbon (an infant), [1918] 1 W.W.R. 579, 13 Alta. L.R. 196; 39 D.L.R. 177.
819,
See also In re C., [1922] 1 W.W.R. 1196 (Man.) and in re McKee [1947] O.Rt
affd. [1948] O.R- 658, [19481 4 D.L.R. 579 rev. [1950] S.C.R. 700, [1950] 3 D.L.R. 577
rev. (1951) 2 W.W.R. (N.S.) 181 (P.C.) sub nom McKee v. McKee, noted (1948),
26 Can.’Bar Rev. 1368, 1372, (1949), 27 Can. Bar Rev. 99, (1951),.29 Can. Bar Rev.
536. See also Loasby v. Home Circle (1893), Tru. 533 (N.B.).
10 6Hannon v. Eisler (No. 2)
(1954), 13 W.W.R. (N.S.) 565, 62 Man 440, [1955]
1 D.L.R. 183; in re McGibbon, Ibid. The question whether there is jurisdiction to
award custody where the child is living outside the province is not yet definitely settled;
Goforth v. Goforth, [19281 3 W.W.R. 483, [1929] 1 D.L.R. 58 (Alta.) where the court
issued an order for custody only on proof that the courts of the State of Washington
where the children resided would recognise it; Munroe v. Munroe, [1942] 3 W.W.R.
656 (B.C.); Kilpatrick v. Kilpatrick, [1929] 3 W.W.R. 463, 42 B.C.R. 88, [1930] 1
D.L.R. 288; Gelasco v. Gelasco, [1948] 2 W.W.R. 537 (Alta.); Clifton v. Clifton,
(B.C.); Re Sutherland, [1950] O.W.N. 404; Re Harding
[1949] 1 W.W.R. 125
(1929), 63 O.L.R. 518 overruling Re Shand (1928), 62 O.L.R. 145; but see Dickson v.
Dickson, [1944] 1 W.W.R. 561, [1944] 2 D.L.R. 396 (Sask.); Cleaver v. Cleaver,
[1949] O.W.N. 640, [1949] 4 D.L.R. 36; Ginter v. Ginter, [1953] O.R. 688 affd. [1953]
O.W.N. 917; Keel v. Keel and Jamieson (1952-3), 7 W.W.R. (N.S.) 518 (Sask. C.B.),
(no jurisdiction
and Re Tokarchuk Infants (1952),
although father domiciled in the province). Also Kochan v. Kochan, [1955] O.W.N.
949.
5 W.W.R. (N.S.) 19 (Alta.)
1071n re McKee, supra footnote 105; Ryser v. Ryser (1915), 7 W.W.R. 1275
(Alta.); Re C., [1922] 1 W.W.R. 1196 (Man.); 67 D.L.R. 630; Re Davis (1894), 25
O.R. 579; Re E. (1921), 19 O.W.N. 534, affd. (1921), 20 O.W.N. 92; Re Gay, [1926],
3 D.L.R. 349 (1926), 59 O.L.R. 40 (Michigan decree) ; Re Shand, supra, footnote 119;
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[Vol. 5
foreign divorce decree is invalid for having been rendered without jurisdiction,
its provisions dealing with the custody of the children will be of no effect in
Canada.10 8 However, where the foreign decree has been given by a competent
court and the custody has been properly placed, it will be taken into considera-
tion.109
As the Privy Council stated in McKee v. McKee,110 the distinction between
a foreign decree and an ordinary foreign judgment rests on the peculiar character
of the jurisdiction and on the fact that an order providing for the custody of a
child cannot in its’ nature be final. The court which has physical control over
the child, even in the presence of a valid foreign decree, will examine the
conduct and capacity to support of either parent claiming custody and all matters
which might affect his or her suitability as a guardian.””
VIII-ALIMONY AND MAINTENANCE
(a) JURISDICTION
Canadian courts have the power to order the payment of interim or -per-
manent alimony or maintenance to the wife as an incidental remedy in an action
for divorce, nullity of marriage or of separation from bed and board.e’ In
certain specified cases provincial legislation’ 1 3 also enables’ the wife and children
Iteslop v. Heslop (1958), 12 D.L.R. (2d.) 591 [1958] O.W.N. 137; [1958] O.L.L 183
(Michigan decree granting temporary custody). A decree of a foreign
(Ont. C.A.)
court is not binding in Ontario but does establish a prima facie right to custody. See also
Re Snyder, [1927] 2 W.W.R. 240, 38 B.C.R. 336, [1927] 3 D.LR. 151 (Ohio decree);
Re Molt, [1912] 1 W.W.R. 833, 20 W.L.R. 396, 5 D.L.R. 406 (Alta.)
(California
decree); In re Chisholm (1913), 47 N.S.R. 250, 13 D.L.R. 811, 13 E.L.R. 182; Re
Bickley, [1957] S.C.R. 329 (Appeal
(Nevada decree); R. v. Hamilton
(1910), 22 O.L.R. 484 (Indiana decree), Re Ayers, [1921] 2 W.W.R. 171 affd. [1921]
773 (Penna. decree). See also In re
2 W.W.R. 625, 16 Alta. L.R. 433, 65 D.LR.I
Kinney (1875), 6 P.R. 245 (Ont)
(Michigan decree).
from B.C.)
lO8bid.
109Lorenz v. Lorenz (1905), 7 P.R. 186, 11 R.L. (ns.) 527 (Que.); See also cases
cited supra footnote 107; no weight will be given to a foreign decree where it was
rendered in a jurisdiction where the child was neither domiciled nor physically present
“OSee supra, footnote 105. In this case a valid order of a California court gave
custody of the child to its mother and the father removed the child into Ontario. The
mother obtained a writ of habeas corpus. The trial judge was held justified in forming
the opinion that he ought not to follow the foreign order.
“11Thus, if the circumstances of the case or the welfare of the child require it,
his custody may be awarded to someone other than the person appointed by the com-
petent foreign court.
112Powet, op. cit., p. 388 et seq. Note that in the case of interim alimony in a
divorce action, the fact that the husband pleads that he is not domiciled within the
jurisdiction does not prevent the court from making an order for such alimony, at p. 419.
113Ibid., p. 192 ef seq.
PRIVATE INTERNATIONAL LAW
No. 1]
to obtain alimony as an independent remedy. 114 In both cases the court must
have personal jurisdiction over the defendant husband. 115 Maintenance legis-
lation does not generally confer jurisdiction to the local courts where the husband
is not a resident of the province at the time of the action, or at the time the
matrimonial offences were committed and the cohabitation ceased even though
his wife has become resident therein, or he has assets there.1” On the other
hand residence of the child seems sufficient to confer jurisdiction. 1 17
In Hamilton v. Church,118 the Quebec Court of Appeal held that the right
to alimony is not governed by the law of the domicile of the parties at the time
of the marriage or at the time of the commission of an offence for which they
have obtained a decree of separation from bed and board. The law of the matri-
monial domicile determines the effect of the marriage as regards the property
rights of the consorts inter se. The right to alimony is not a property right but a
personal obligation in Quebec, and can be obtained if the defendant was domi-
ciled in the province or the action was personally served upon him there, or
the cause of actions arose there, or he had property in Quebec or the agreement
as to alimony was made in that province.”l 9
It has been held that a wife who has obtained a judicial separation abroad
and whose husband has become domiciled in one of the Canadian provinces, may
demand alimony apart from that granted by the foreign judgment.120
It is doubtful whether ownership of property alone is a sufficient ground
for jurisdiction,’ 2 ‘ although in some provinces rules of court provide for service
“14See for instance The Deserted Wives and Cbildrens Maintenance Act, R.S.B.C.,
1948, c. 93, am. 1949, c. 17, 1950, c. 16, 1951, c. 21, 1954, c. 6, 1955, c. 17, 1956, c. 51,
1957, c. 67, 1958, c. 65; Ibid Ontario, R.S.O., 1950, c. 102 and 1951, c. 20, 1953, c. 28,
1954, c. 22, 1955, c. 16, 1957, c. 27, 1958, c. 23. Similar statutes exist in other provinces.
Note that an action for alimony may also be brought independently from divorce or
judicial separation proceedings. Lee v. Lee (1920), 54 D.L.R. 608, 18 Alta. L.R. 83.
1 5sLawrence v. Lawrence, [1953] O.W.N. 124; Nelson v. Nelson, [1925] 2 W.W.R.
1, at p. 13, 3 D.L.R. 22 at p. 33 (Alta.); Hill v. Hill, [1951] O.W.N. 347, 99 C.C.C. 384
affd. [1951] O.W.N. 507, 100 C.C.C. 176. As to service out of the jurisdiction see:
Cheeseborough v. Cheeseborough, [1958] O.W.N. 150.
“18 Smith v .Smith (1952), 7 W.W.R. (N.S.) 163 affd. 9 W.W.R. (N.S.) 144, 61
[1953] 3 D.L.R. 682, where it was held that the provisions of The
Man. R 105,
Wives’ & Children’s Maintenance Act do not apply to residents in another province
where both spouses were residing and cohabitating outside the province at the time
that cohabitation ceased. See also Meyers v. Meyers, [1953] 2 D.L.R. 255
(Ont.)
(Manitoba order). Cf. Gagen v. Gagen, [1934] 3 W.W.R. 84, 48 B.C.R. 481, 62 C.C.C.
286, [1924] 4 D.L.R. 409 (desertion within the province and wife resident therein. B.C.
statutory definition of “magistrate” supra, footnote 114, s. 2). Leave to appeal to
Supreme Court of Canada refused, 49 B.C.R. 102; see also Holland v. Holland, [1950]
1 W.W.R. 286, 96 C.C.C. 138 (B.C.)
(Manitoba order).
21Ontario Act, supra footnote 114, s. 2.
118(1915), 24 K.B. 26 (Que. C.A.).
1″9 Playe v. Vaesen (1933-4), 36 P.R. 402 (Que.). Cf. Pothier v. Lapierre (1938),
120Detro v. Detro (1922), 70 D.L.R. 61 (Alta.).
l21Nelson V. Nelson, supra, footnote 115. Smith v. Smith, supra, footnote 116.
42 P.R. 408 (Que.).
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[Vol. 5
out of the jurisdiction in such a case.1 22 Proof of a foreign divorce obtained by
the defendant husband does not necessarily bar recovery,’ sa especially where it
has been rendered by fraud and without notice.’2 4 On the other hand in
Rosszuron v. Rosswron,125 where the wife had voluntarily left her husband and
had obtained a divorce from him abroad, and subsequently brought an action
for alimony in Ontario, the court in dismissing the action stated: “Without
being taken as passing on the validity of the divorce or holding the proceedings
to be valid or binding even in the country in which it was obtained, otherwise
than for the purpose I now state, I am of opinion that, having chosen thei
tribunal to which she made her appeal for relief, she is to be bound thereby,
in so far as to disentitle her to make the present claim.”‘1 26
(b) FoREIGN JUDGMENTS FOR ALIMONY OR MAINTENANCE
Final judgments for alimony or maintenance to be paid at regular intervals
in all Canadian
rendered by a competent foreign court’ 27 are enforceable
provinces. 128
Where a foreign divorce decree is invalid for lack of jurisdiction, an award
of permanent alimony which depends upon the divorce cannot be enforced.’ 29
On the other hand it has been held that an order for maintenance which is
ancillary to a divorce decree is binding on a husband even though the court
making the order did not have personal jurisdiction over’him if the court has
jurisdiction to grant the divorce on the ground that the judgment in personam
is ancillary to a judgment in rem. 3 0
122Lawrence v. Lawrence, supra, footnote 115.
l2 3 McCully v. McCully (1908), 14 O.W.R. 788, 1 0.W.N. 95, affd. 14 O.W.R-
1012, 1 O.W.N. 187; Switzer v. Switzer (1907), 10 O.W.R. 406; but see Guest v.
Guest (1882), 3 O.R. 344.
12 4Maday v. Maday (1911), 16 W.L.R. 701, 4 Sask. L.R. 18.
125(1914), 7 O.W.N. 583.
126Note that in an almost similar case, the wife was allowed to recover for the
period between the date of the desertion and the date of the invalid divorce. Ackerman
v. Ackerman, [1918] 2 W.W.R. 759 (Alta.).
12 7Curtis v. Curtis, [1943] O.W.N. 382; Meyers v. Meyers, [1935] O.W.N. 547.
12 8Ellenberger v. Robins (1940), 78 S.C. 1 (Que.) ; Archambault v. Riopelle (1934),
72 S.C. 176 (Que.). Ashley v. Gladden, [1954] 4 D.L.R. 848, [1954] O.W.N. 558;
Meyers v. Meyers, ibid; McDowell v. McDowell, [1954] S.C. 319 (Que.); Robertson
170; Hadden v. Hadden (1899), 6 B.C.R. 340 (C.A.) ;
v. Robertson (1908), 16 O.L.
Swaizie v. Swaizie (1899), 31 O.R. 324; Burpee v. Burpee, [1929] 2 W.W.R. 128, 41
B.C.R. 201, 31 D.L.R. 765; Curtis v. Curtis, ibid.; In Burchell v. Burchell (1926), 58
O.L.R. 515 a foreign judgment awarding alimony to a husband was held to be enforceable
in Ontario although the law of that province does not recognize a husband’s right to
alimony, because the judgment was pronounced by the court of the matrimonial domicile.
Note that in Ryan v. Pardo, supra, footnote 32, it was held that a wife cannot recover
arrears accunmulated after the institution of her action in divorce.
1 29 Cassavallo v. Cassavallo, supra, footnote 84;
1nOSummers v. Summers (1958), 13 D.L.R. (2d.) 454, [1958]O.W.N. 73.
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PRIVATE INTERNATIONAL LAW
The chief difficulty is in determining whether the order for alimony is
final or provisional and subject to modification. The finality of the judgment
is determined according to the law of the province or country in which it was
rendered. It is generally held that an order for alimony with provision for
periodic revision is not a final judgment.’31 However, if no power to modify
the decree is reserved or if only future instalments may be modified, the decree
is final to the extent that it will support an action for the amount accrued and
unpaid.132 Thus, a judgment awarding future alimony which may not be final
when rendered becomes final for each instalment when it falls due in the absence
of a contrary intent on the part of the court which rendered the judgment.’3 3
As the arrears accumulate they become a judgment debt which can be enforced
by ordinary process, even though future payments may be modified.’ 3 4 In
Bedell v. Hartnann,a3 5 it was held that part of a foreign judgment of divorce
ordering payment of an alimentary pension which is subject to revision and
modification by the court which rendered it, is not final and conclusive as to
future instalments and cannot be declared executory in Quebec. 136 In other
words, the judgment must finally and forever establish the existence of the
debt so as to make it res judicata between the parties.137
The Uniform Reciprocal Enforcement of Maintenance Orders Act,13as
which has been adopted with -slight modifications by most common-law pro-
vinces,13 9 is designed to facilitate the enforcement of the obligations of parents
and husbands where the dependent and the person under obligation to maintain
13’McIntosh v. McIntosh, [1942] O.R. 574, [1942] 4 D.L.R. 70; Maguire v. 1faguire
(1921), 50 O.L.R. 100, 64 D.L.R. 180; Perry v. Perry (1923), 53 O.L.R. 502, rev. 54
O.L.R. 613; Ashley v. Gladden, supra, footnote 128.
132See Sistare v. Sistare (1909), 218 U.S. 1, an American decision which has had
a great influence in common-law jurisdictions.
’33 As in the case where the court retained a discretionary power to modify overdue
instalments. Smith v. Smith, [1953] 1 D.L.R. 271, 13 W.W.R. 207, (B.C.); Maguire
v. Maguire, supra, footnote 131; McIntosh v. McIntosh, Swaizie v. Swaizie, Ellenberger
v. Robins, Ashley v. Gladden, McDowell v. McDowell, supra, footnote 128; Ryan v.
Pardo, supra, footnote 32.
134Ellenberger v. Robins, Hadden v. Hadden, Archambault v. Riopelle, Wood v.
Wood. Swaizie v. Swaizie, supra, footnote 128. As to security for costs in the case of a
non-resident wife suing for arrears for alimony see Gamble v. Gamble, [1952] O.W.N.
173, [1952] 4 D.L.R. 525 reversing [1951] O.W.N. 866.
“35[1956] Q.B. 157 (Que.).
1361n re Reciprocal Enforcement of Judgments Act, Mackowey v. Mackowey (1955)
14 W.W.R. 190 it was held that alimony payable in futuro is not enforceable in British
Columbia.
13″1Wood v. Wood, Ashley v. Gladden, supra, footnote 128.
1381n 1946 a Reciprocal Enforcement of Maintenance Orders was approved by the
Conference of Commissioners on Uniformity of Legislation in Canada. It was revised
in 1953 and 1956, 1946 Proceedings, p. 69; 1953 Proceedings, p. 96, 1956 Proceedings,
p. 89.
13QAlta., B.C., Man., N.B., Nfld., N.S., Ont., P.E.I., Sask., N.W.T., Yukon;
See for instance R.S.O., 1950, c. 334 which will be analysed here.
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him are not resident in the same state. The Act provides the machinery for
registering maintenance orders which are binding upon persons resident and
subject to the jurisdiction of a reciprocating state without the necessity of
initiating proceedings anew there. It also provides a means whereby proceedings
may be initiated for the purpose of taking evidence which may be raised in
support of an application for maintenance against a person who is subject to
the jurisdiction of a reciprocating state and not within the jurisdiction of the
court in which such proceedings are taken.140 For instance, maintenance orders
for the periodical payment of a sum of money towards the maintenance of a
wife or other dependant made against any person by a court in a reciprocating
state141 will be enforced in Ontario. The certified copy of the order must be
transmitted by the proper officer of the reciprocating state to the Attorney
General or other officer of the province who will forward it to the appropriate
officer of the competent court in Ontario for registration. Once registered pro-
ceedings may be taken under it as if it had been originally obtained in
Ontario.1’4
The Act, while silent on the point, dearly contemplates that the order for
maintenance so registered must have been made by a court having jurisdiction
over the person against whom the award is made.14 If the order makes payable
sums of money expressed in a foreign currency it cannot be registered. until
the court has determined the equivalent of such sums in the currency of Canada
on the basis of the rate of exchange prevailing at the date of the order by the
court of the reciprocating state.144
Where an application is made to a court in one of the provinces which
have such an Act in force, against any person who is resident in a recipro-
cating state, the court may, in the absence of that person and without service
upon him, make any such order as it might have made if a summons had been
served on him and he had failed to appear at the hearing. In such a case the
order is provisional only and has no effect unless and until it is confirmed by a
14ORe Scott, [1956] S.C.R. 137, 114, C.C.C. 224, 1 D.LR. (2d.) 433, rev. [1954]
O.R. 246, 108 C.C.C. 393, [1954] 2 D.L.R. 465 rev. [1954] O.R. 676, 109 C.C.C. 235,
4 D.L.R. 546.
141S. 10 Ont. Act. Are reciprocating states: the ten Canadian provinces and two
territories as well as: Capital Territory of Australia, England, Guernsey, Alderney &
Sark, Isle of Man, New South Wales, New Zealand, Cook Islands, Northern Ireland,
Northern Territory of Australia, Papua, New Guinea, Queensland, South Australia,
Southern Rhodesia, Jersey, Tasmania, Union of South Africa, Victoria and Western
Australia. Reg. Ont. Nov. 10/1956, 0. 203/56 p. 369.
142S. 2 (1).
14sRe Kenny, [1950] O.W.N. 339, [1950] 3 D.L.R. 858 rev. [1951] O.R. 153, 100
C.C.C. 70, [1951] 2 D.L.R. 98; See also Summers v. Summers, supra, footnote 130. S.
2 applies to orders made by a court having jurisdiction to make an effective award;
Meyers v. Meyers, supyra, footnote 116 Cf. Burak v. Burak, [1949] 1 W.W.R. 300
(Saslc).
144S. 2 (3) S.O., 1956, c. 77.
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PRIVATE INTERNATIONAL LAW
competent court in the reciprocating state.145 The court must send to the
Attorney-General or other officer a certified copy of the order for transmission
to the proper officer of the reciprocating state. It must also prepare a statement
showing the grounds on which the making of the order might have been opposed
if the person against whom the order is made had been duly served with a
summons and had appeared at the hearing and the depositions or a certified
copy of the transcript of the evidence. 146 Section 4 of the Ontario Act con-
templates proceedings when, owing to the husband being resident in a recipro-
cating state, and thus not within the territorial jurisdiction of the court to which
the application is made, an order which might be registered under the term of
sectioh 2 cannot be made. The court in a reciprocating state where any such
provisional order has come for confirmation may remit it to the original court
for the purpose of taking further evidence.’ 47 If upon the hearing of such
evidence it appears to the original court that the order ought not to have been
made it must rescind it.’ 48
The confirmation of an order by the reciprocating state does not affect
any power of the original court to rescind or vary it, provided that a certified
copy of the order, together with the depositions or a certified copy of the
transcript of any new evidence adduced before the court, is sent to the proper
officer of the reciprocating state in which the original order was confirmed.1 49
No rights are conferred and ho issues settled by a provisional order made under
that section. Such order is merely a preliminary step taken in the province
with a view to obtaining a maintenance order against the husband of a deserted
wife or father of deserted children who reside in the province. On the other
hand, where a maintenance order has been made by a court in a reciprocat-
ing state against a person resident within the province and the order is
the court of the residence
provisional only and subject to confirmation,
shall call him to show cause why the order should not be confirmed.’6 0
That person may raise any defence that he might have raised in the original
proceedings had he been a party thereto, but no other defence. The statement
from the court that made the provisional order showing the grounds on which
the making of the order might have been opposed if the person against whom
the order was made had been a party to the proceedings is conclusive evidence
that those are the grounds on which objection may be taken. The court to
whom the application is made may confirm the order, with such modifications
145S. 4 of the Ontario Act. Note that the applicant has the same right of appeal,
if any, against a refusal to make a provisional order as he would have had against
a refusal to make the order had a summons been duly served on the person against
whom the order is sought to be made. S. 4 (10).
146S. 4(5).
147S. 4(7).
148S. 4(8).
149S. 4(9).
150S. 5(1). A-G for Ontario v. Scott, supra, footnote 140.
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as might be considered just, meaning that it may make such order as it thinks
proper upon the evidence, or it may remit the case to the court that made the
provisional order for the taking of any further evidence. The provisional order
once confirmed may be varied or rescinded by the confirming court.”” In other
words, the purpose of section 4 of the Ontario Act is to enable a deserted wife
or child in Ontario to take preliminary steps within the province to obtain
maintenance from her husband or the father residing outside the province. The
provisional order for maintenance made for the wife and chIldren will be an
indication of what the court in Ontario considers appropriate in their circum-
stances. Conversely, section 5 is aimed at providing means of enforcement
against a husband residing in the province of an obligation to maintain a wife
and children resident elsewhere. The foreign order will derive its legal force
and effect entirely from the applicable Ontario statute.152 A court in which an
order has been registered under the Act or by which an order has been con-
firmed under it and the officer of that court must take all proper steps for
enforcing the order in a like manner as if it had been a judgment of the court
in which it is so registered or by which it is so confirmed.153
It is interesting to note that in Ontario if the Lieutenant-Governor
in
Council is satisfied that reciprocal provisions have been made by any foreign
state for the enforcement therein of maintenance orders made in Ontario, he
may declare it to be a reciprocating state for the purposes of the Act.’- The
Act is not restricted to orders made in other provinces of Canada or parts of
the British Commonwealth of Nations.
In the province of Quebec special legislation of a substantially similar
character 55 has also been passed to provide for the execution in that province
of a judgment rendered in another ordering the payment of maintenance. The
Attorney-General, when he receives from an authorized official source a certified
true copy of such judgment, will transmit it to the prothonotary of the Superior
Court of the district where the defendant has his domicile or residence for deposit
151S. 5(2), Shaw v. Shaw, 11948] 1 W.W.R. 395 (Alta.); Stevenson v. Stevenson,
[1947] 2 W.W.R. 962 (Sask.); Storms v. Storms (1953), 8 W.W.R. (N.S.) 458
(Alta.). S. 5(5). Note that according to s. 5(6), once confirmed, the person bound
thereby shall have the same right of appeal, if any, against the confirmation of the
order as he would have had against the making thereof had the order been one made
by the court confirming it. In Re Scott, supra footnote 140, Locke J. stated the use
of the word confirmed is unfortunate as one cannot speak of a confirming order which
of itself has no binding effect.
‘5 2 The order with the certified copy of the depositions of the witnesses heard by
the court abroad affords evidence upon which it may make an order against the
husband and nothing more. Any award must depend entirely for its validity upon the
order made by the confirming court. Re Scott, ibid. per Locke J.
153S. 6:
154S. 9.
155An Act Respecting
Maintenance, Stats. of Quebec, 1951-52, c. 56.
the Execution of Certain
Judgments
in Matters of
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PRIVATE INTERNATIONAL LAW
in the archives of his office. The judgment will then produce the same effects
as if it had been rendered by a Quebec court. This liberal approach is some-
what mitigated by the provision that the defendant may oppose the execution
by way of summary procedure on the ground that the judgment is not in
conformity with the laws and rules of public order of the province, especially
those relating to marriage. According to section 6 of this Act where an extra-
provincial judgment has been submitted for decision to the courts of the pro-
vince, the creditor cannot execute it until he has obtained, upon petition, a
confirmation of the judgment with or without modification. The Act also pro-
vides for the transmission of copies of judgments ordering the payment of
maintenance rendered in Quebec against a person neither domiciled nor resident
there. In such a case Quebec courts may also render a provisional judgment
subject to the final judgment of the competent court of the place where the
defendant resides or is domiciled.
IX-LEGITIMACY
(a) LEGITIMACY AT BIRTH
In Canada legitimacy is considered as a personal status which is determined
-by the law of the domicile of the parent whose relationship to the child is in
question.’ 56 In the usual situation, a child legitimate according to the law of his
father’s domicile at the time of birth is legitimate everywhere.1 57 Children of
foreign polygamous or putative marriages have been recognized as legitimate
if such status is given to them by the lex domiciii at the time of their birth.158
The child’s status as legitimate or illegitimate at the time of birth is not affected
by a subsequent change of domicile.Y39 However, the incidents which flow from
this status may vary as they depend upon the law of the country where they are
sought to be enjoyed. Thus a child who is legitimate by the law of the domicile
of his father at birth may have this status recognized in one of the provinces
although he may not be entitled to claim under the succession law of that pro-
vince. In general, however, a foreign status of legitimacy will be given the
same effect in the province of the forum as is given by that province to the
status when created by its own local law.
(b) LEGITIMACY AFTER BIRTH
Statutes in most Canadian common-law provinces provide that if the
parents of any child heretofore or hereafter born out of lawful wedlock inter-
156Note that mention of the child’s domicile in legitimacy at birth cases involves
the danger of circular reasoning since his domicile will be with the father if he is
legitimate, but with the mother if he is illegitimate.
157Lefebvre v. Dignian (1894), 3 R. de J. 194 (Que.) ; Hunt v. -Trusts & Guar-
antce Co. (1905), 10 O.L.R. 147.
158Re Leong Ba Chai, supra footnote 13; In re Immigration Act in re Dedar
Singh Bains, ibid; Falconbridge, op. cit., p. 774 et scq.
159Re Leong Ba Chai, ibid.
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married or hereafter intermarry, such child shall for all purposes160 be deemed
to be and to have been legitimated from the time of birth without regard to the
law of the domicile of any of the parties involved at the time of birth or at the
time of marriage or the place of the legitimating act.161 This solution constitutes
a departure from the common law that a foreign legitimation of an illegitimate
child by the subsequent marriage of his parents will be recognized if this is the
effect given by the law of the domicile of the child’s father at the time of birth
and at the time of the marriage.162
In Quebec, legitimation by subsequent marriage is recognized by the Civil
Code.ses It depends upon the law of the domicile of the father at the time of the.
marriage without regard to the law of his domicile at the time of the child’s
birth.’ 64 Once legitimated a child has the same rights as if he were born of such
marriage,165 but from the date of the marriage only.
(a) STATUTORY ENACTMENTS AND JURIsDICTION OF CANADIAN COURTs
X-ADOPTION
Adoption is unknown to the common law and the civil law of Canada and
exists exclusively by virtue of statutory enactment It is usually effected by
judicial proceedings and it is thus first necessary to determine on what basis
the courts of a particular province have jurisdiction to grant an order for adop-
tion. The statutes in most Canadian provinces differ widely in their details as
to the circumstances in which a provincial court has jurisdiction. In Ontario
160For instance the child may inherit real and personal property as though born
in lawful wedlock.
161Proceedings of the Conference of Commissioners on Uniformity of Legislation
in Canada (1919), p. 50-53, (1920) p. 18. In general, see Falconbridge, op. cit., p. 789
et seq.; and Taintor, Legitimation, Legitimacy and Recognition
in the Conflict of
Laws (1940), 18 Can. Bar Rev. 589, 691; In re W., [1925] 2 D.L.R. 1177, 56 O.L.R.
611, the child was deemed legitimated in Ontario by application of the statute although
he was born out of wedlock in England and his parents were domiciled there at the
time of his birth and at the time of subsequent marriage and English law at all
material times did not legitimate the child. See Ontario Legitimation Act., R.S.O.,
1950, c. 203, s. 1. One could argue that under the statutes in existence in the com-
mon-law. provinces, a foreign legitimation which
is a matter of status, should be
governed by the law of the child’s domicile and that the statutes apply only to persons
domiciled in these provinces when the act took place. The effect of the marriage must
be to legitimate the child by virtue of the law of the domicile of the father at the
time it took place.
16 2Note that the Canadian statutes also provide that “Nothing in this Act shall
affect any right, title or interest in or to the property if such right, title or interest
has vested in any person a) prior to the passing of this Act in the case of any such
intermarriage which has heretofore taken place, or b) prior to such intermarriage in
the case of any such intermarriage which hereafter takes place.”
C63 .C. 237-239.
’64.ack v. Jack (1927), 65 S.C. 10 (Que.).
‘6 C.C. 239.
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PRIVATE INTERNATIONAL LAW
the jurisdiction of the court is based on the domicile of the applicant anywhere
in Canada and residence of both the child and new parent within the pro-
vince. 166 In Saskatchewan and in the Yukon and North West Territories, it is
based on residence of the applicant parent within the province of application
for a period of one year immediately preceding the date of application. 167
British Columbia,168 Manitoba, 6 9 Newfoundland 170 and Prince Edward
Island17 1 do not require residence or domicile of any person. In New Bruns-
wick172 and Nova Scotia73 jurisdiction is based on the residence of either
applicant or child, while in Alberta”74 in addition to these two parties, it may be
based on the residence of the guardian. In Quebec on the other hand the appli-
cant parent or the child must be domiciled within the province.175
In practice, most orders are made in Canada by courts which are not that
of the child’s domicile. As Dr. Kennedy wisely remarks the requirement, apart
from statute, that the domiciliary law of both the child and new parent must be
satisfied would be an unworkable rule, especially in federal states. He says :17
So long as people may move about as freely as they do in this modem world, some
new criterion for jurisdiction is required. May we not say that the court, assuming
it is satisfied about the child’s welfare, has adoption jurisdiction when there
is
some appropriate connection with the territory by at least one of the parties? …
Preferably the order should be made by a court where the new parents reside –
parents with whom the child will in most cases be residing. That court can more
easily judge the child’s welfare. But that court should not be the exclusive court.
There may be causes where for one reason or another, the court of the natural
parents’ residence, child’s domicile or child’s present whereabouts might be a proper
court. No one court will have, or should necessarily have, exclusive jurisdiction.
In other words, any court -which has some connection with the child through
the presence, residence or domicile of the natural parents, child or new
parents should have jurisdiction to make a decree, provided the paramount
consideration is the welfare of the child 7
16Child Welfare Act, S.O., 1954, c. 8, s. 67.
16 7R.S.S., 1953, c. 239, s. 63, re-enacted S.S. 1955, c. 55, s. 68(1) am. 1956 c. 50,
1958 c. 37; Ordinances of the Yukon Territory, 1954, 3d. session, c. 13, s. 5(1) (f);
Revised Ordinances of North West Territories, 1956, c. 1, s. 4 (1) (f).
l68Adoption Act, S.B.C., 1957, c. 1, am. 1958 c. 3.
16SChild Welfare Act, R.S.M., 1954, c. 35, am. 1955, c. 6, 69, 1956 c. 7.
17OThe Welfare of Children Act, R.S. Nfld., 1952, c. 60. Cf. s. 148 (1).
171Adoption Act, R.S.P.E., 1951, c. 3 as amended. Re Davis (1944), 17 M.P.R. 305
(P.E.L) ; Re M., [1944] 4 D.L.R. 258 (P.E.I.).
1″2 Adoption Act, R.S. N.B., 1952, c. 3, s. 7.
’37 Adoption Act, R.S. N.S., 1954, c. 4, am. 195Y, c. 12, s. 3.
174Child Welfare Act, R.S.A., 1955, c. 39, s. 72 (b).
175R.S.Q., 1941, c. 325, s. 5; Johnson, The Quebec Adoption Act and Domicile
(1956), 16 R. de B. 5; Roch, L’Adoption dans la Province de Quebec (1951) p. 98-100.
‘7 6 Kennedy, Adoption in the Conflict of Laws (1956), 34 Can. Bar Rev. 507 at p.
514.
1770ne could object especially in Quebec that only the court of the domicile should
have jurisdiction over matters of status. To this it could be replied that where the
court has taken jurisdiction let us say on the basis of residence, it could always apply
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(b) FoREIGN DECREES
The next question is to determine the effect which will be given to an adop-
tion order rendered abroad. Foreign adoptions may be
recognized under
common-law rules or by virtue of statutes. Of course the foreign order must
be rendered by a court which was internationally competent in the eyes of the
forum. Should the validity of the order depend on the law of the domicile of
each party to the adoption, or only on that of the country, state, or province
in which both parent and child are domiciled at the time of the order?178
Although the first approach is more realistic, there is no reason why Canadian
courts should not recognize foreign orders made in the absence of domicile if
made upon a basis comparable to that used in Canada. International jurisdiction
will depend upon domestic jurisdiction. “If we exercise jurisdiction upon the
basis of some reasonable connection of the parties with the territory where the
order is made, we should recognize orders similarly made abroad,”17h unless
the order is contrary to the public policy of the forum.
The most difficult problem is to determine the effects of a foreign adop-
tion.160 In the absence of any specific statutory provision to the contrary it is
generally held “that persons whose relationship to another is the result of a
recognized foreign adoption receive locally the incidents applicable either to
local legitimate status or to a local adoption.””1
in general in all Canadian provinces special statutory provisions exist,’x
some dealing only with one or more of the incidents arising from an adoption,
while others deal with the effects to be given to a foreign order generally. In
the law of the domicile of both the child and new parent, subject to the paramount
consideration of the welfare of the child. It seems difficult to apply any other law than
that of the forum.
178See for instance Burnfiel v. Burnfiel supra, footnote 95, per Haultains C.J.S.;
Culver v. Culver, [1933] 1 W.W.R. 435, 2 D.L.R. 535 (Sask.) ; In general, see O’Connell,
Recognition and Effects of Foreign Adoption Orders (1955), 33 Can. Bar Rev. 635.
1t 0Kcnnedy, op. cit., supra, footnote 176, p. 526.
180 For decisions dealing with the effect of foreign adoptions see: In re Donald
Estates, [1929] S.C.R. 306, [1929] 2 D.LR. 244 and annotation (Sask.) ; Re Milestone
Estate (1958), 25 W.W.R. 514 (Sask. C.A.); Burnfiel v. Burnflel, supra, footnote 101;
Re McGillivray, [1925] 3 D.L.R. 854 (B.C.); Re Throssel (1910), 12 W.L.R. 683
(Alta.) ; Robertson v. Ives (1913), 15 D.L.R. 122 affd. sub nom Forbes v. Bailey (1914),
14 E.L.R. 514; Re Ramsay, [1935] 2 W.W.R. 506, 50 B.C.R. 83; Re McAdam, [19251
4 D.L.R. 138 (B.C.); Re Niven [1942] 4 D.LR. 285 (B.C.); Re Skinner, [19291 4
D.L.R. 427 further proceedings (1930), 38 O.W.N. 201, Re McFadden, [1937] 46 O.W.N.
404; Swartz v. Swartz (1935), 38 P.R. 341 (Que.). Care should be exercised in relying
upon any of these decisions as legislation in the various provinces has been passed or
modified on many occasions.
l8lKennedy, op. cit., supra, footnote 176 p. 537.
182Except Newfoundland, where the common-law rules apply.
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PRIVATE INTERNATIONAL LAW
Manitoba for example foreign orders which are comparable to local adoptions
will be recognised and given the same effect in Manitoba as is given by that
province to a decree of adoption handed down by its own courts.8s3 There is no
attempt to restrict the effects of the foreign adoption. Outside of reciprocity,
this is certainly the best solution. In Nova Scotia an adoption made according
to the law of the then place of domicile or residence of either adopted child or
new parent will be recognized and the child will have for all purposes in Nova*
Scotia the same status, rights and duties as if the adoption had been in accordance
with the local law.184 The other Canadian statutory provisions are limited to
questions of succession. Thus, the Saskatchewan Act is concerned only with
the inheritance rights of the adopted child. Section 82 provides that:”‘-‘
A person who has been adopted in accordance with the laws of the jurisdiction. )n
or outside Canada wherein the adoption took place and his issue, shall, upon proof
of the adoption be entitled to the same rights of succession to property a
they
would have had if the person, adopted had been adopted in accordance with the
laws of this province.
In Quebec, on the other hand, the child has the same rights of succession
that he would have had in the foreign country in which he was adopted. 186
In Ontario, no adoption in another province is recognized unless the
person was domiciled in the province where the order was made both at that
time and when the succession rights arose. As in Quebec, the adopted child has
the same rights of succession as he would have had in the province where he
was adopted, except that these rights cannot exceed those he would have had if
adopted in Ontario.187
From this survey, it would seem that in many provinces it might be
advisable either to repeal or to amend the statutory provisions in existence on
a uniform basis. In that respect, Dr. Kennedy’s suggestion that: “An adoption
effected according to the law of any other jurisdiction shall have the same effect
as an adoption under this act,”‘ 88 should receive careful consideration as it is
socially desirable that children adopted abroad be considered on the same
general basis as children adopted locally.
lssSupra, footnote 169, s. 98. See also Alberta, supra, footnote 174, am. 1958 c. 8,
.88.
1s4Supra, footnote 174, s. 19.
185Supra, footnote 167, s. 82. See also N.W.T. s. 12 and Yukon s. 15, supra, footnote
limited to Canadian orders
(recognition
is
167. N.B., iupra footnote 172, s. 32,
only, save in P.E.I. supra, footnote 171, s. 15.)
186RS.Q., 1941, c. 324, s. 22 and Swartz v. SwarLz which recognized a foreign
adoption before the Quebec statute was passed, supra, footnote i80.
1S71954, c. 8, s. 78 recognition limited to Canadian orders see Re McFadden, supra,
footnote 180.
1880p. cit., supra, footnote 176, at p. 562 embodied in the New B.C. Adoption Act
jupra, footnote 168. The new Act reshapes R.S.B.C., 194$, c. 7 as amended.
McGILL LAW JOURNAL
[Vol. 5
XI-MINORITY –
INFANCY
The status and rights of minors or infants are determined by the law of
their domicile. 18 A tutor or guardian appointed to a minor by the court of
his foreign domicile may validly represent him in the province of Quebec as
those who have not the free exercise of their rights must be represented, assisted
or authorized in the manner prescribed by the laws which regulate their parti-
cular status or capacity.190 On the other hand, “Whenever an incapable person
domiciled outside of the province possesses property or has
to be
exercised in the province and the law of his domicile does not provide for
him to have a representative to his property or his rights, a curator to his
property may be appointed for him to represent him in all cases where a tutor
or a curator may represent a minor or an incapable person under the laws of
this province. The appointment shall be made in the district wherein the pro-
perty or rights of the incapable person is or are wholly or in part situated, with
the formalities and according to the rules prescribed for the appointment’ of
tutors or curators to minors or to incapable persons domiciled in the pro-
vince.” 91 Quebec courts cannot appoint a tutor to a minor domiciled in a foreign
country.192 Where a tutor has been appointed by the court of the foreign
domicile of a minor there is no necessity for an additional grant of local letters
of administration or local confirmation of the tutor’s prime facie authority under
the foreign law of the domicile.193
rights
Although at common law a foreign guardian claiming property of the
infant within the jurisdiction cannot do so by virtue of his appointment on the
ground that his powers are limited to the territory of the state or province from
which he derives his authority, Ontario courts have held that a guardian duly
19OQuebec C.C. 6. This is another area for circular reasoning. Re Gripton (1930),
38 O.W.N. 281; Lucas v. Coupal (1930), 66 O.L.R. 141; Kavanagh v. Lennon (1894),
16 P.R. 229 (Ont.).
190 C.P.C. 78-79; Schatz v. McEntyre, [1935] S.C.R. 238, [1935] 1 D.L.R. 608; The
capacity of a person to enter a legal relationship or to appear in court is considered
in Quebec as an aspect of the civil status of a person and is governed by the personal
law of that person, that is the law of his domicile, C.C. 6. Jones v. Dickinson (1875), 7
S.C. 313 (Que.)
In the common-law provinces, on the other hand, there is no such
general principle underlying the ascertainment of the capacity of persons to enter’ into
a legal relationship. Capacity is not a status but a quality of a transaction which is
governed by the law that applies to the whole transaction. But see Lucas v. Coupal, ibid.
For the appointment and removal of a guardian in the common-law provinces see Re
McGibbon (an infant) supra, footnote 105.
11CC. 348 (a).
92Coslett v. Germain, [1949] K.B. 521 (Que. CA.).
1D Johnson, op. cit., vol. III, p. 136, ef seq.
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PRIVATE INTERNATIONAL LAW
35
appointed by the court of the domicile of the infant is entitled to have paid
over to him money belonging to this infant in the province. 94
In view of the great diversity of laws and confusion in judicial thinking
which exists in this field of the law, it seems that the time has now come for
the Commissioners on Uniformity of Legislation in Canada to codify private
international law rules relating to domestic relations.
194Hanrahan v. Hanrahan (1890), 19 O.R. 396; Kelly v. O’Brien (1916), 37 O.LI.
326: Re Gripton, supra, footnote 189; but see Re Lloyd (1914), 31 O.L.1. 476 where
the refusal to recognize the right of the Texas guardian was based on the fact that it
was affirmatively shown that the guardian intended to use the money in a way which
was not deemed proper. As regards custody, a foreign guardian appointed by the
court of the domicile of the infant has no absolute right over his person as such in the
common-law provinces, but great weight will be given to the foreign order. Re Davis;
Re Guay, supra, footnote 107. In re Bergman & Waldron, [1923] 3 W.W.R. 70, 17
Sask. L.R. 497, [1923] 4 D.L.R. 56 (C.A.).
