Lapointe v. Klint

Divorce—Maintenance—Question raised before decree nisi—Power to rule on this question after decree absolute—Decrees nisi and absolute granted with other rights reserved—Divorce Act, R.S.C. 1970, c. D-8, ss. 11(1)(a) and 13(3).

A few months after her marriage to appellant, respondent commenced action seeking judicial separation and obtained an order for interim alimony. Her husband, the appellant, also petitioned for divorce, and respondent applied for maintenance. This application was continued on two occasions to later dates, after which it was struck out because of the wife’s absence. The husband obtained a decree nisi. The wife was in Tokyo at the time, but was represented by counsel. This decree provided: “Autres droits réservés” (other rights reserved). A decree absolute was obtained by the husband, which, after declaring that the parties were divorced, stated that “LA COUR RÉSERVE tous autres recours” (THE COURT RESERVES all other remedies). Respondent subsequently presented a request for maintenance, which was opposed by a motion to dismiss presented by appellant on a preliminary question of law. This motion was dismissed in the Superior Court and the dismissal was affirmed by the Court of Appeal. Hence the appeal to this Court.

Held: The appeal should be dismissed.

This is not a case in which the matter of maintenance had not been raised at all at the time the decree nisi was granted, nor one in which an application for maintenance had been refused. The issue as to the granting of maintenance, although incidental to and dependent upon the granting of a decree of divorce, may be dealt with by the Court separately from the issue as to the granting of such decree. If the Court decides that a party to the divorce proceedings is entitled to maintenance, or is entitled to have that

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issue determined, its right to determine such entitlement does not preclude it from dissolving the marriage, but such dissolution does not prevent it from dealing with the corollary relief aspect thereafter. It is because the marriage is being dissolved that the power and the necessity to determine the right of a party to the marriage to maintenance arises. The Court having derived jurisdiction to deal with that matter when the decree nisi is granted, in the absence of some express provision in the Act to the contrary, is not deprived of the power to deal with the issue which has come before it because the decree is made absolute, if that issue is still undetermined.

Zacks v. Zacks, [1973] S.C.R. 891, referred to. McKay v. McKay (1972), 23 D.L.R. (3d) 126, overruled.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], dismissing an appeal from a judgment of the Superior Court. Appeal dismissed with costs.

J. Richard, for the appellant.

J.M. Gagné and R. Barakett, for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—This is an appeal from the unanimous judgment of the Court of Appeal of the Province of Quebec, which dismissed the appellant’s appeal from a judgment of the Superior Court refusing the appellant’s motion, on a preliminary question of law, to dismiss the respondent’s petition for maintenance.

The parties to this appeal were married on October 28, 1968, and took up residence in Montreal. On August 18, 1969, the respondent, wife, commenced action seeking judicial separation. On September 23 of that year she obtained an order for interim alimony in the amount of $40 per week.

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On March 18, 1970, the appellant, husband, petitioned for divorce. On June 16, 1970, the wife applied for maintenance from her husband. This application was returnable on June 17, was continued to June 25 and again to July 6, when it was struck out because of the wife’s absence. The husband obtained a decree nisi in the divorce proceedings on November 6, 1970. The wife was then in Tokyo, but was represented by counsel. The decree nisi provided: “Autres droits réservés.”

The decree absolute was obtained by the husband on February 8, 1971. It stated, after declaring that the parties were divorced, that: “LA COUR RÉSERVE tous autres recours.” On March 23 the wife presented a request for maintenance dated March 9. This was supported by her affidavit, paragraphs 4 to 7 of which read as follows:

[TRANSLATION] 4. Petitioner was unable to submit a petition for maintenance in the case at bar due to the fact that when the petition for divorce was argued, petitioner was in Tokyo and it was impossible for her to come to Montreal;

5. Petitioner needs alimony of $100.00 weekly to live on;

6. Respondent has the means to pay petitioner alimony of $100.00 weekly;

7. The petition is well-founded in fact and in law.

The husband then raised the question of law, in issue on this appeal, as to the wife’s right to obtain a maintenance order after the dissolution of the marriage, there having been no provision in the divorce decree ordering corollary relief in favour of the wife.

The power of the Court to grant corollary relief in connection with divorce proceedings is defined in s. 11(1) of the Divorce Act, c. D-8, R.S.C. 1970, hereinafter referred to as “the Act”, the relevant portions of which provide as follows:

11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition,

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means and other circumstances of each of them, make one or more of the following orders, namely;

(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the wife,

…

The application of this subsection was considered by this Court in Zacks v. Zacks[2]. The contention of the husband, in that case, that an order for maintenance under s. 11(1) would have to be made at the same time that the decree nisi was granted, was rejected. It was held that the words “Upon granting a decree nisi of divorce” referred to the time at which the Court acquired jurisdiction to grant corollary relief. In that case the Court had declared the wife’s entitlement to maintenance when the decree nisi was granted, but had referred to the Registrar, for his recommendation, the matter of the proper allowance to be made. The amount had not been determined at the time the decree absolute was granted.

In the penultimate paragraph of the reasons in that case the following statement appears, at p. 914:

Counsel for the Attorney General of Canada invited us, in interpreting the meaning of the word “Upon” in s. 11(1), to hold that in every case, where a decree nisi of divorce has once been granted, the court may, at any time thereafter, make an order as to alimony, maintenance and the custody of children. It was submitted that the lapse of time after the granting of a decree nisi, or the intervening grant of a decree absolute, before such an order was sought would be only factors to be considered by the court to which the application was made. It is not necessary in this case, nor do I think it would be desirable, to endorse such a broad statement. In the present appeal, it is true that a decree absolute has been granted, but the right to maintenance had been declared at the time of the decree nisi, and the procedure to fix the amount

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had been launched before the decree absolute was made. What the position would be if no claim for alimony, maintenance or custody was made until after a decree absolute had been granted, or if an application therefor had been refused when the decree nisi was granted, is not in issue in this case, and I express no view thereon.

In the present case no declaration of entitlement to maintenance was made in the decree nisi or in the decree absolute, but there did appear, respectively, in those decrees the words “Autres droits réservés” and “LA COUR RÉSERVE tous autres recours”. The reason for including those reservations in the decrees is suggested by Rinfret J.A. in his reasons in the Court of Appeal:

[TRANSLATION] I do not know exactly why the two judges made that reservation, but I can assume that it may be because of the existence of a petition for maintenance submitted by respondent on June 16, 1970 for presentation on June 17, continued to June 25 and again to July 6, when it was struck out on account of the absence of respondent, and on which accordingly no ruling was made.

In the petition for maintenance now before the Court respondent alleges that she was unable to present her first petition due to the fact that when the divorce petition was argued she was in Tokyo, and it was impossible for her to come to Montreal.

She submits her affidavit in support of this allegation.

In view of the reservation of all her other rights contained in the decree nisi and decree absolute, it is my opinion that petitioner, the respondent in this Court, is not barred from presenting her petition, even after those decrees have been made.

It may be noted that the wife’s application for maintenance was made very promptly after the decree absolute had been granted.

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This is not a case in which the matter of maintenance had not been raised at all at the time the decree nisi was granted, nor one in which an application for maintenance had been refused. The wife had filed an application for maintenance before the decree nisi was granted, but it had been struck out, not for lack of merit, but owing to her absence. The Court, at the time the decree nisi was granted, was unable to make an order because of her absence in Tokyo, but, because of representations by her counsel, that issue was reserved, as it was also in the decree absolute. The question then is as to whether, in these circumstances, the Court was, in law, prevented from dealing with the matter of maintenance once the marriage was finally dissolved.

On this issue, counsel for the husband places reliance upon s. 13(3) of the Act, which provides as follows:

(3) Where a decree nisi of divorce has been granted but not made absolute, any person may show cause to the court why the decree should not be made absolute, by reason of its having been obtained by collusion, by reason of the reconciliation of the parties or by reason of any other material facts, and in any such case the court may by order,

(a) rescind the decree nisi;

(b) require further inquiry to be made; or

(c) make such further order as the court thinks fit.

Referring to this subsection, Verchere J., in Re McKay and McKay[3], said, at p. 128, that:

I cannot disregard the apparent intention of s. 13(3) not to permit further order or inquiry after the decree nisi has been made absolute.

With respect, I am not in agreement with this interpretation of s. 13(3). That subsection is concerned only with the provisions of the decree nisi granting the divorce, as is shown by

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its opening words. I do not construe it as intending to limit the jurisdiction of the Court to grant corollary relief to the period between the decree nisi and the decree absolute. Such an interpretation would be contrary to the decision in the Zacks case, which recognized the power of the Court to make an order fixing maintenance after the decree absolute had been made. I find nothing in the Act which precludes the Court from deciding to defer its consideration of the matter of maintenance, as it did in this case.

In my opinion the issue as to the granting of maintenance, although incidental to and dependent upon the granting of a decree of divorce, may be dealt with by the Court separately from the issue as to the granting of such decree. If the Court decides that a party to the divorce proceedings is entitled to maintenance, or is entitled to have that issue determined, its right to determine such entitlement does not preclude it from dissolving the marriage, but such dissolution does not prevent it from dealing with the corollary relief aspect thereafter. It is because the marriage is being dissolved that the power and the necessity to determine the right of a party to the marriage to maintenance arises. The Court having derived jurisdiction to deal with that matter when the decree nisi is granted, in the absence of some express provision in the Act to the contrary, is not deprived of the power to deal with the issue which has come before it because the decree is made absolute, if that issue is still undetermined.

I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitor for the appellant: Jacques Richard, Ville St-Laurent.

[1] [1973] C.A. 452.

[2] [1973] S.C.R. 891.

[3] (1972), 23 D.L.R. (3d) 126.