T-2002-86
Robert David Michael Edward Young (Plaintiff)
v.
Wilma Melrose Hubbert (A.K.A. Wilma Melrose
Topp) (Defendant)
INDEXED AS: YOUNG V. HUBBERT
Trial Division, Strayer J.—Edmonton, June 23;
Ottawa, July 2, 1987.
Federal Court jurisdiction — Trial Division — Divorce —
Court without jurisdiction to enforce custody order — Order,
issued by provincial superior court before repeal of former
Divorce Act, filed in Federal Court after coming into force of
new Divorce Act in 1986 — Registration sought not proceed
ings commenced ... and not finally disposed of before repeal
within meaning of s. 34 of new Act — Registration new
proceeding for enforcement — Terms "in any court in a
province" in s. 20 excluding Federal Court — Latter neither
listed in s. 2 nor designated by Lieutenant Governor in Council
"as court for purposes of Act".
Matrimonial causes — Application for enforcement of cus
tody order — Decree nisi and decree absolute granted by
Alberta Court of Queen's Bench — Custody order made by
Supreme Court of Ontario under former Divorce Act — Filed
in Federal Court after coming into force of new Divorce Act in
1986 — Jurisdiction of Federal Court under former Act to
register and enforce custody orders — Scheme of new Act not
contemplating registration in Federal Court — Terms "in any
court in a province" in s. 20 excluding Federal Court —
Registration sought new proceeding for enforcement
Supreme Court of Ontario exercising parens patriae jurisdic
tion in granting order.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Divorce Act, R.S.C. 1970, c. D-8 (rep. by S.C. 1986, c.
4), ss. 2, 5, 11, 15.
Divorce Act, 1985, S.C. 1986, c. 4, ss. 2, 20, 34, 35.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 3.
Federal Court Rules, C.R.C., c. 663, R. 1087.
Interpretation Act, R.S.C. 1970, c. I-23, s. 28.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Hegg v. Hegg and Plautz (1973), 12 R.F.L. 385
(B.C.S.C.); O'Neill v. O'Neill (1971), 19 D.L.R. (3d)
731 (N.S.S.C.); Papp v. Papp, [1976] 5 W.W.R. 673
(Sask. Q.B.); Eccles v. Van Duin (1978), 84 D.L.R. (3d)
406 (Ont. H.C.); Bourgeois v. Bourgeois (1984), 43
R.F.L. (2d) 399 (Man. Q.B.).
APPEARANCE:
R. D. M. E. Young on his own behalf.
COUNSEL:
Wayne S. Alford for defendant.
SOLICITORS:
M`Lennan Ross, Edmonton, for defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is in effect an application for
enforcement of a custody order issued by the
Supreme Court of Ontario on June 13, 1984 in
respect of the children of the parties to the present
proceeding. Counsel for the respondent (described
in the style of cause as the "defendant") obtained
leave through an order of Martin J. on January 27,
1987 to file a conditional appearance in order that
he could contest the jurisdiction of this Court to
enforce such an order of the Supreme Court of
Ontario.
One of the grounds put forward by the respon
dent (the "defendant") as to the lack of jurisdic
tion in this Court is that the former Divorce Act,
R.S.C. 1970, c. D-8 never contemplated enforce
ment through the Federal Court of custody orders
made under that Act. I do not accept this conten
tion. Section 11 of that Act provides for the
making of a custody order upon the granting of a
decree nisi, by the court which is granting the
divorce, normally a provincial superior court
(although section 5 of the Act makes specific
provision for the granting of divorces by the Feder
al Court in certain limited circumstances). Section
15 of that Act provides that an order made under
section 11 "may be registered in any other superior
court in Canada". I am satisfied that the reference
to a "superior court" in that section included the
Federal Court. In the former Divorce Act, the
term "court" with respect to "any province" is
defined in section 2 by referring by name to the
specific superior courts of the various provinces.
There is no definition of "superior court" in that
Act and it must be assumed that when the term
"superior court" is used there it is intended to have
a meaning that may be different from the term
"court" as defined in section 2. As there is no
definition in the Act of the term "superior court",
one must look elsewhere for the meaning of that
expression. Section 28 of the Interpretation Act,
R.S.C. 1970, c. I-23 defines "superior court" to
mean, inter alia, the Federal Court of Canada.
Further, section 3 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c.10 provides that the
Federal Court "shall continue to be a superior
court of record". The net effect of these provisions
was that a custody order made by a provincial
superior court as ancillary to a decree nisi could be
registered in the Federal Court of Canada and
enforced throughout the country by that means.
Rule 1087 of the Federal Court Rules [C.R.C., c.
663] has made specific provision for the registra
tion of such orders.
Counsel for the respondent argued that the
order sought to be enforced here is not an order
within the contemplation of section 11 of the old
Act. I agree with this submission. According to the
affidavit of the applicant, the decree nisi in the
divorce was granted by the Alberta Court of
Queen's Bench on May 25, 1981 and the decree
absolute was granted by that Court. The degree
nisi included custody provisions. The order granted
by the Supreme Court of Ontario in 1984 was
based on Minutes of Settlement signed by the
parties and it appears that those Minutes, as con
firmed by the order, altered the custody arrange
ments laid down originally in the decree nisi.
However, the order does not on its face purport to
amend the decree nisi and in fact it confirms the
undertaking of the parties that they will obtain
"orders from courts of competent jurisdiction in
both Alberta and British Columbia", an apparent
reference in respect of Alberta to the continuing
jurisdiction of the Court there to vary its own
decree nisi. The applicant in his affidavit says that
the Ontario Court exercised "its parens patriae
jurisdiction" in granting this order. I am satisfied
that that is what happened. Indeed, the Ontario
Court had no other jurisdiction in the matter apart
from that flowing from provincial statutes and
from its inherent parens patriae role. The former
Divorce Act, under which the original custody
order was made, provided in subsection 11(2) that
such custody orders "may be varied from time to
time . .. by the court that made the order". It
appears well settled that the court of another
province could not vary such an order, although it
could, if the child or children were otherwise
within its geographical jurisdiction, make new
orders with respect to custody which would have
the same effect as a variation of the previous
custody order made under section 11 of the
Divorce Act.' Thus the order of the Supreme
Court of Ontario here did not purport to be, nor
could it legally have been, a variation of the
original order of custody of the Court of Queen's
Bench of Alberta. It was therefore not an order
within the contemplation of section 11 of the old
Divorce Act and consequently could not be an
order contemplated by section 15 of that Act as
registerable in other superior courts such as the
Federal Court of Canada.
In any event it appears to me that at the date on
which this order was filed in the Federal Court,
namely August 28, 1986 the procedure under sec
tion 15 of the former Divorce Act was no longer
available. The Divorce Act, 1985, S.C. 1986, c. 4,
which came into effect on June 1, 1986, repealed
the whole of the former Divorce Act. Section 34 of
the new Act provides as follows:
34. Proceedings commenced under the Divorce Act before
the day on which this Act comes into force and not finally
disposed of before that day shall be dealt with and disposed of
' See, e.g., Hegg v. Hegg and Plautz (1973), 12 R.F.L. 385
(B.C.S.C.); O'Neill v. O'Neill (1971), 19 D.L.R. (3d) 731
(N.S.S.C.); Papp v. Papp, [1976] 5 W.W.R. 673 (Sask. Q.B.);
Eccles v. Van Duin (1978), 84 D.L.R. (3d) 406 (Ont. H.C.);
and Bourgeois v. Bourgeois (1984), 43 R.F.L. (2d) 399 (Man.
Q.B.).
in accordance with that Act as it read immediately before that
day, as though it had not been repealed.
The matter is not free from doubt but the registra
tion of this order would not appear to be a "pro-
ceeding[s] commenced .. . and not finally disposed
of" before repeal. The attempted registration in
August 1986 of an order made in June 1984 would
appear to be a new proceeding for enforcement.
This would be consistent with section 35 of the
new Act which permits enforcement under the
procedures of the new Act of custody orders made
under the old Act. Further, I do not believe it
could be registered here under the new Act. The
only counterpart to old section 15 is section 20 of
the new Act which allows custody orders to be
registered "in any court in a province". I am of the
opinion that this phrase does not include the Fed
eral Court. While it is a "court" and exercises
powers in every province, the scheme of the new
Act for enforcement of orders would not seem to
contemplate their registration in this Court. Sec
tion 2 of the new Act defines "`court' in respect of
a province" to mean the various provincial superior
courts but also goes on to say that it includes
"such other court in the province" (emphasis
added), the judges of which are federally appoint
ed, as may be designated by the Lieutenant Gover
nor "as a court for the purposes of this Act".
Section 20, which deals with enforcement through
out Canada of maintenance and custody order
made in divorce proceedings, has for its own pur
poses a definition of "court" which adopts the
definition of "`court' in respect of a province"
found in section 2 and adds to it any other court so
designated by the Lieutenant Governor in Council.
It then goes on in subsection 20(3) to say as noted
above that such orders may be "registered in any
court in a province". I think this must be taken to
exclude any courts that are neither listed in section
2 nor otherwise designated by the Lieutenant Gov
ernor in Council. There is nothing to suggest that
this Court has been so designated.
Counsel for the respondent also made some
arguments to the effect that the matter of enforce
ment of the order of the Ontario Court has already
been dealt with by the Court of Queen's Bench of
Alberta and that for reasons of comity the Federal
Court should not take jurisdiction in the matter. I
can make no ruling on that proposition as counsel
did not provide me with certified copies of the
orders, or evidence by affidavit or otherwise, as to
the nature of the proceedings in the Court of
Queen's Bench of Alberta. Under the circum
stances I need consider that no further.
I therefore find that this Court has no jurisdic
tion to register or enforce the order of June 13,
1984 of the Supreme. Court of Ontario with
respect to the custody of the children of the par
ties. The application and other proceedings in this
matter brought by the applicant (described by
himself as the plaintiff) in this Court are therefore
dismissed with costs throughout.
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.