T-3749-73
Carmel Edwina Winmill (Plaintiff)
v.
William L. Winmill (Defendant)
Trial Division, Collier J.—Vancouver, February
12; Ottawa, March 28, 1974.
Jurisdiction of Court—Divorce—Neither party resident in
any province for one year prior to action—Plaintiff invoking
original jurisdiction of Trial Division—Federal Court Act, s.
25—Jurisdiction restricted to provincial courts except in
special defined circumstance—Divorce Act, R.S.C. 1970, c.
D-8, secs. 2-5.
The plaintiff brought an action for divorce on the ground
of cruelty by virtue of section 3(d) of the Divorce Act.
Neither party had been resident in any province of Canada
for one year prior to the date of action, as required by
section 5(1)(b) of the Act. The plaintiff contended that this
brought into operation section 25 of the Federal Court Act
conferring original jurisdiction on the Trial Division "if no
other court ... has jurisdiction."
Held, the action is dismissed. Section 25 of the Federal
Court Act does not clothe this Court with jurisdiction in this
case. The Divorce Act clearly bestows jurisdiction upon
certain designated courts of the provinces or territories
except in the peculiar circumstance of paragraph 5(2)(b)
where two concurrent petitions for divorce were presented
on the same day and neither of them was discontinued
within 30 days after that day, then the Trial Division of the
Federal Court has exclusive jurisdiction to grant relief.
Jurisdiction has, therefore, been conferred by law and the
persons seeking the remedy or relief of divorce must meet
the required prerequisites or qualifications. Section 25 of
the Federal Court Act comes into play only when jurisdic
tion over a subject-matter or over persons has not been
conferred upon any other court by legislation, inherent
powers, or by some other recognized means by which those
other courts entertain causes or matters.
ACTION.
COUNSEL:
W. O'Malley Forbes for plaintiff.
Lorne A. Montaine for defendant.
SOLICITORS:
Owen, Bird, Vancouver, for plaintiff.
Montaine, Black & Davies, Vancouver, for
defendant.
COLLIER J.—This is an action for divorce.
The parties describe themselves in the style of
cause as plaintiff and defendant rather than
petitioner and respondent.' The wife is the
plaintiff and brings action based on paragraph
3(d) of the Divorce Act, R.S.C. 1970, c. D-8
(and amendments)—cruelty.
The plaintiff, who was eighteen at the time,
and the defendant, who was seventeen, were
married in Vancouver in the spring of 1969.
There are two children of the marriage, both
born in Vancouver, one on October 1, 1969 and
the other on April 26, 1972. The plaintiff asks
this Court to grant her relief by way of divorce
but the parties have agreed the corollary claims
for custody and maintenance will not be
advanced in this Court: "... these matters .. .
are ... to be dealt with by provincial courts".
From August, 1969 to October, 1972 the par
ties resided in Vancouver. It is alleged the first
act of cruelty on the part of the defendant
occurred in 1970. Following it, the plaintiff left
the defendant but subsequently husband and
wife cohabited.
The next act of cruelty is alleged to have
taken place in February, 1972. Again there was
a reconciliation. The same thing occurred in
July of 1972 with a further reconciliation.
In October 1972 the parties moved to Edmon-
ton, where the defendant had arranged for
employment. They became ordinarily resident
there. Further acts of cruelty are alleged to have
occurred in July of 1973. I think it fair to say
the evidence before me indicates the most seri
ous act of physical cruelty to the plaintiff
occurred in the latter part of July, 1973. Follow
ing that, the plaintiff secretly left for Vancouver
with the two children. She has resided there
since July 30, 1973.
The defendant returned to Vancouver shortly
thereafter. He, too, has resided there since early
August of 1973.
1 This form was adopted, I was told, to comply with the
usual procedure followed in this Court in describing the
parties to an action.
The statement of claim was filed in this Court
on September 21, 1973. Neither at that time nor
at the date of the hearing had either husband or
wife been ordinarily resident in any province of
Canada for one year prior thereto. Counsel for
both parties agreed this was the factual situa
tion. It is not contested that the plaintiff is
domiciled in Canada.
The question arises: Does this Court have
jurisdiction to entertain this action and grant the
relief requested? I refer to subsection 5(1) of
the Divorce Act which is as follows:
5. (1) The court for any province has jurisdiction to
entertain a petition for divorce and to grant relief in respect
thereof if,
(a) the petition is presented by a person domiciled in
Canada; and
(b) either the petitioner or the respondent has been ordi
narily resident in that province for a period of at least one
year immediately preceding the presentation of the peti
tion and has actually resided in that province for at least
ten months of that period.
The plaintiff says that neither the Trial Divi
sion of the Supreme Court of Alberta nor the
Supreme Court of British Columbia had juris
diction, on September 21, 1973, to entertain this
suit for divorce and relies on section 25 of the
Federal Court Act, R.S.C. 1970, c. 10 (2nd
Supp.). That section reads as follows:
25. The Trial Division has original jurisdiction as well
between subject and subject as otherwise, in any case in
which a claim for relief is made or a remedy is sought under
or by virtue of the laws of Canada if no other court
constituted, established or continued under any of the Brit-
ish North America Acts, 1867 to 1965 has jurisdiction in
respect of such claim or remedy.
The plaintiff asserts this Court therefore has
jurisdiction in the circumstances here. The
defendant disagrees.
Despite Mr. Forbes' able argument on behalf
of the plaintiff, I have concluded that section 25
does not clothe this Court with jurisdiction in
respect of the relief sought by the plaintiff in
this case.
A petition for divorce is, of course, a claim
for relief made or a remedy sought under or by
virtue of one of the laws of Canada.' The
Divorce Act has given a designated court in
each of the provinces and territories' jurisdic
tion to grant a divorce and, if necessary, corol
lary relief. There are certain prerequisites
before a designated court can entertain the suit
and grant relief, or to put it another way, the
petitioner must meet certain qualifications
before a designated court may proceed. These
prerequisites or qualifications are:
(a) Canadian domicile by the person present
ing the petition.
(b) Either the petitioner or the respondent
must have been ordinarily resident in the
province where the petition is presented for at
least one year immediately preceding the date
of suit. 4
Assuming prerequisite (a), a would-be peti
tioner may conceivably have two choices of
forum, depending on his or her place of ordi
nary residence (my phrase), or that of the poten
tial respondent. Subsection 5(2) deals with the
situations where there are concurrent petitions
in the courts of two provinces. In the unusual
situation set out in paragraph (b) of that subsec
tion, jurisdiction is given to the Trial Division of
this Court.
It is, I think, clear from the Divorce Act that
jurisdiction in divorce was bestowed only upon
certain designated courts of the provinces or
territories, except in the peculiar circumstances
of paragraph 5(2)(b).
Those courts, and they alone, in my opinion
have jurisdiction in respect of the subject-
matter of divorce. The jurisdiction in respect of
that subject-matter cannot, however, be invoked
unless and until the persons seeking the remedy
or relief of divorce meet the prerequisites or
qualifications I have earlier set out. In my view,
2 See the British North America Act, s. 91(26).
3 The particular courts having jurisdiction are set out or
defined in s. 2 of the Divorce Act.
I have not referred to the "10 month" provision of
paragraph 5(1)(b) of the Act. In this particular case, it is of
no real relevance.
those prerequisites are not somehow to be trans
lated into matters going to "jurisdiction", as that
term is used in section 25 of the Federal Court
Act. What I have called the designated courts
have jurisdiction in respect of the claim for or
remedy of divorce. This is not a situation where
no "other court"' has jurisdiction, and section
25 would apply.
For several reasons which I think are obvious
and not necessary to detail, it was thought desir
able, in the divorce legislation, to confine the
parties to a potential divorce suit to a choice of
one of two provincial or territorial forums,
rather than allow a suit to be brought in any one
of the twelve designated courts, perhaps merely
at the whim of the petitioner and without any
consideration for the circumstances of the
respondent or the children of the marriage.
Restricting to some extent the choice of forum
by imposing the prerequisites or qualifications I
have stated is not, to me, removing divorce
jurisdiction from a designated court, or denying
it jurisdiction.
To my mind section 25 comes into play only
when jurisdiction, in the sense of jurisdiction
over a subject matter (or in some cases, over
persons), has not been conferred upon any `oth-
er court" by legislation, inherent powers, or by
some other recognized means by which those
other courts ordinarily entertain causes or mat
ters. Where there is that hiatus, and where the
remedy claimed or relief sought arises from a
law or the laws of Canada, then the Trial Divi
sion of this Court has jurisdiction.
The plaintiff's action is therefore dismissed.
By agreement of counsel, and with my con
currence, I heard all the evidence for both par
ties not only in respect of residence and domi
cile but as to the allegations of cruelty. If I am
correct in my conclusion that this Court has no
jurisdiction, and that decision is affirmed if
appeals are taken, then presumably another
action will be brought in the appropriate court in
the appropriate province. Because some of the
5 As described in section 25.
same evidence which I heard may then be
adduced and because questions of credibility
may be involved in subsequent litigation, I do
not propose to express any opinion now upon
the merits of this case, or in respect of the
evidence I heard. If it is ultimately decided this
Court does have jurisdiction in this case, then I
shall be prepared to give a decision upon the
merits.
In the circumstances, and at this stage at
least, I make no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.