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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.
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