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Recognition of Provincial Divorces in Canada
At present, the federal Parliament has exclusive jurisdiction over
divorce under section 91:26 of the British North America Act, 1867.1
However, the desirability of integrating divorce law with the aspects
of family and property law already within provincial jurisdiction2
has prompted the suggestion in recent years that the divorce ju-
irisdiction be transferred to the provincial legislatures. The im-
plementation of this suggestion would require modification of
sections 91 and 92 of the British North America Act, 1867 and
repeal of the 1968 Divorce Act.3 Each province would then be free
to adopt divorce legislation which would reflect the social and
ethical values of its residents and express its particular social phi-
losophy. However, such a transfer of jurisdiction would require
balancing uniform recognition throughout Canada of provincial
divorce decrees 4 and each province’s right to exercise control over
foreign decrees affecting its residents. Several approaches are
possible, none of which is free from criticism.
I. Provincial approaches
A. Application of common law rules of recognition
throughout Canada of
In the absence of a constitutional provision stipulating mandatory
recognition
all provincially-rendered
divorce decrees, each province could develop its own rules of re-
cognition. The common law rules may serve as a starting point: a
foreign decree of divorce will be recognized if it was rendered by
a court of competent jurisdiction; if it is not tainted with fraud
or lack of due process; and if it does not violate the public policy
of the jurisdiction in which recognition is sought
The ascertainment of the competency of the decree-rendering
courts, however, may present some problems. The common law
predicates jurisdictional competence upon the existence of a sub-
stantial connection (for example, domicile or residence) between
130-31 Vict., c.3 (U.K.).
2 This is by virtue of ss.92:13 and 92:16 of the British North America Act,
1867, ibid.
3 R.S.C. 1970, c.D-8.
4 Uniformity is a necessity if “limping marriages” are to be avoided.
5 Castel, Canadian Conflict of Laws (1977), vol.2, 117 et seq.
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COMMENTS – COMMENTAIRES
the court rendering the decree and at least one of the parties.,
Quebec, however, has not yet subscribed to the substantial con-
nection test. Moreover, even the common law provinces may differ
in their respective concepts of substantial connection. Finally, a
Canada-wide judicial consensus, even if achieved, would always be
liable to upset, as each provincial legislature would be capable of
modifying by statute the judge-made rules at its discretion.
B. Adoption of a uniform act
A uniform act might be drafted, based on the’ Convention on the
Recognition of Divorces and Legal Separations prepared by the
Hague Conference on Private International Law,7 which each pro-
vincial legislature could then enact. The difficulty with this ap-
proach is that not all provinces may be willing to adopt such an
act. Consequently, uniformity of recognition could not be achieved.
II. Constitutional approaches
A.
Inclusion of a recognition clause
A new constitution could include a clause (similar to section 14
of the Divorce Acts) to read as follows: “A final decree of divorce
granted in any of the provinces or territories of Canada has legal
effect throughout Canada.” The Supreme Court, in interpreting this
provision, may be called upon to determine whether each province
would be precluded from attacking the basis upon which courts
of the others exercise jurisdiction. This issue does not arise under
the present Divorce Act which sets out a jurisdictional standard ap-
plicable throughout Canada.
It is not certain that the provinces would accept an absolute
obligation to recognize one another’s divorces, as the American
OIlndyka v. Indyka [1969] 1 A.C. 33 (H.L.). For a recent Canadian case see
Kereztessy v. Kereztessy (1976) 14 O.R. (2d) 255 (H.C.).
7 Recueil des Conventions de la Haye (1951-1968), no. XVIII, 128 (June 1,
1970). This convention has been ratified and implemented by the U.K. in its
Recognition of Divorces and Legal Separations Act 1971, c.53 as am. (U.K.).
sR.S.C. 1970, c.D-8, s.14: “A decree of divorce granted under this Act or
an order made under section 10 or 11 has legal effect throughout Canada.”
See also s.15: “An order made under section 10 or 11 by -any court may be
registered in any other superior court in Canada and may be enforced in
like manner as an order of that superior court or in such other manner as
is provided for by any rules of court or regulations made under section 19.”
Ss.10 and 11 deal with corollary relief (e.g., alimony, maintenance, and
custody).
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experience tends to show.9 However, this approach might be render-
ed acceptable to the provinces if the constitution required that the
test be satisfied. This would effectively
substantial connection
impose the same jurisdictional standard on each province, elimin-
ating refusals to recognize divorce decrees rendered elsewhere in
Canada. Although difficulties might arise, should the original court
and the recognizing court take different views as to what constitutes
the substantial connection required by the constitution, this could
be solved by the Supreme Court of Canada. Moreover, in cases
where a divorce is obtained without this substantial connection,
any province’s refusal to recognize such a -divorce should itself be
recognized by all the provinces, including the one which originally
granted the decree.
This approach need not involve recognition of rights to property,
alimony, and custody of children which could continue
to be
governed by ordinary rules of recognition. Furthermore, a provin-
cial decree would still be subject to the, requirement of due process
under the Canadian Bill of Rights’ whenever a spouse has not been
notified of the proceedings.
B. Inclusion of a “Full Faith and Credit” clause
An alternative approach might be to follow the American exam-
ple by implementing a provision similar to the Full Faith and Credit
clause contained in article IV of the United States constitution.1
This clause makes the enforcement in one state of judgments of
another state a federal question. Thus the states are deprived of
their ordinary freedom to refuse recognition to foreign judgments.
The clause provides that: “Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial Proceedings of
every other State. And the Congress may by general Laws prescribe
the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.’ 2 The framers of the constitution in-
tended that the clause should compel recognition and coordination
yet still leave room for state originality.
Congressional legislation under the Full Faith and Credit clause
includes an Act of May 26th, 179013 which deals with the authen-
tication of records, judicial proceedings and acts of the state legis-
9 See infra, p. 650.
I’ S.C. 1960, c.44; R.S.C. 1970, App.III.
11 U.S. Const. art.IV, 1.
12 Ibid.
13 Ch.11, 1 Stat. 122.
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COMMENTS – COMMENTAIRES
latures and provides that these documents should have such faith
and credit given them in every state as they have by law or usage
in the courts of the state from which they issue. .On March 27th,
1804, Congress passed an Act extending the provisions of the 1790
statute to the territories of the United States and to countries sub-
ject to its jurisdiction. 14 Finally, in 1948, the present statute was
enacted which provides: “Such Acts, records and judicial proceed-
ings … shall have the same full faith and credit in every court with-
in the United States and its Territories and Possessions as they
have by law or usage in the courts of such State, Territory or
Possession from which they are taken.”-5
Judgments of federal courts must be given the same recognition
by state courts as judgments of another state would receive. Similar-
ly judgments of state courts must be given full faith and credit in
the federal courts. It should be noted further that the clause applies
to the public acts of other states. However, the decisions compelling
recognition of such statutes have been limited to relatively few
fields.
One question which has come before the courts is under what
circumstances recognition may be denied under the Full Faith and
Credit clause. The Supreme C6urt of the United States has held
that the clause and the legislation thereunder do not preclude an
inquiry into the jurisdiction of the first court to render the judg-
ment sought to be enforced in the second state.16 If the court had
no jurisdiction, the judgment is not entitled to full faith and credit.
The sister state judgment may also be attacked for fraud in its pro-
curement, provided it could be so attacked in the state where it
was rendered. In other words, the measure of credit is that which
the judgment would receive in the state where it was rendered.
It should also be emphasized that under the Full Faith and Credit
clause, a sister state judgment cannot be denied local recognition
on the ground that it conflicts with the notions of public policy or
good morals of the forum in which recognition is sought. This ap-
proach is quite desirable from the point of view of the needs of a
federal system.
14 Ch.56, 2, 2 Stat. 298.
1528 U.S.C. 1738 (1976).
16See Hanson v. Denckia 357 U.S. 235 (1958); May v. Anderson 345 U.S.
528 (1953); Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 (1950);
Griffin v. Griffin 327 U.S. 220 (1946); Williams v. North Carolina, infra, note
19.
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With respect to the recognition of sister state -divorce decrees,
the courts have had to determine the jurisdictional tests required
by the constitution. The test they have applied is a very narrow one:
the bona fide domicile of either spouse. This is not a progressive
approach, especially in view of the fact that in recent years, in
Canada and other British jurisdictions, a substantial connection test
has been adopted which includes, inter alia, domicile, residence and
nationality.’7 Nevertheless, until the United States Supreme Court
extends recognition to other jurisdictional bases, domicile remains
the only test.
It is well established that a divorce rendered in a state where
neither spouse was domiciled is not entitled to recognition in an-
other state under the Full Faith and Credit clause. At the other
extreme, a divorce decree rendered in a state where both spouses
were domiciled is certainly entitled to recognition under that clause.
In Williams v. North Carolina [11,18 the United States Supreme
Court held that the petitioner’s domicile alone is a sufficient cons-
titutional basis for divorce jurisdiction even though the other spouse
does not appear in the action. However, in order to accord with due
process, the absent spouse must be given reasonable notice of the
proceedings and an opportunity to be heard.
The Supreme Court also held that in the case of an ex parte
divorce neither the non-participating spouse nor the court of the
marital domicile is bound by the jurisdictional finding of domicile.
This spouse may therefore collaterally attack the validity of the
divorce in another state by showing that in fact the purported
domicile did not exist.’ 9 The court stated that “the [ex parte]
decree of divorce is a conclusive adjudication of everything except
the jurisdictional facts upon which it is founded, and domicil [sic]
is a jurisdictional fact. ’20 However, in the event that a collateral
attack is made upon the divorcing court’s jurisdictional finding
of domicile, the Full Faith and Credit clause requires that such a
finding be treated with respect. The recitation of a bona fide domi-
cile in the sister state decree is prima facie evidence sufficient to
warrant a finding of domicile in that state. The recognizing court
is not compelled to infer domicile from this, but must give ap-
propriate weight to the finding.
17 Supra, note 6.
18 317 U.S. 287 (1942).
19 Williams v. North Carolina [IT] 325 U.S. 226 (1945); Esenwein v. Penn-
sylvania 325 U.S. 279 (1945).
20 Williams v. North Carolina [II], ibid., 232.
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COMMENTS – COMMENTAIRES
If the collateral attack has been successful, it is not clear
whether the original state must give full faith and credit to the
decision of the second state denying full faith and credit.21 If there
is a single constitutional definition of domicile, the decision of the
second state should be given full faith and credit in the original
state. However, one could argue that the divorce decree is still
valid where rendered although not entitled to full faith and credit
elsewhere. There is also the possibility that a state might, without
having recourse to the Full Faith and Credit clause, recognize a
divorce decree based on a different jurisdictional ground. In such
a case, a collateral attack might still be possible under the clause.
If both spouses appear in the divorce proceedings, neither spouse
can thereafter, in another state, make a collateral attack on the
divorce court’s jurisdictional finding of domicile, unless the state
in which the divorce was granted would itself permit this kind of
collateral attack. Anyone whom the divorce forum would bar from
collaterally attacking in its courts the jurisdictional finding of fact
is barred by the Full Faith and Credit clause from collateral attack
in a sister state. 3 However, the clause will not allow a state to give a
divorce decree of a sister state a greater effect than it had in the
state where it was rendered.
At the present time, no cases involving statutes which require
residence only (as opposed to domicile) have reached the United
States Supreme Court. However, this is no reason for domicile to
be considered the only constitutional basis for divorce jurisdiction.
Thus, if a Full Faith and Credit clause were to be inserted in the
Canadian constitution, there would be no compelling reason for
the Supreme Court of Canada to adopt as a test of jurisdiction one
similar to that now prevailing in the United States.
The American case law, while it has illustrated that divorce
can be effectively adjudicated by “the separate sovereignties”, has
not demonstrated that this can be done with optimal efficiency.
Williams I1 4 clearly indicates the consequential possibilities of
bigamous marriages and illegitimate children. It has been pointed
out:
21 See Colby v. Colby 78 Nev. 150, 369 P. 2d 1019 (1962), cert. denied 371
U.S. 888 (1962).
22 Sherrer v. Sherrer 334 U.S. 343 (1948).
23Cook v. Cook 342 U.S. 126 (1951). See also Johnson v. Muelberger 340
U.S. 581 (1951); Davis v. Davis 305 U.S. 32 (1938).
24 Supra, note 19.
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The field of divorce is a fertile ground for conflict between the various
states; indeed, a mobile population, widely conflicting views of many
questions of domestic relations, and the frequency of litigation have
the most persistent and per-
combined
plexing of the full faith and credit problems.2 5
to make interstate divorce
For these reasons a number of American authors, in spite of the
constitutional prohibitions, have suggested federal legislation in
the area of divorce as a possible method of achieving uniformity.26
In the absence of compelling reasons for transferring competence
over divorce from the federal Parliament to the provincial legisla-
tures, it might be preferable to leave things as they stand. Provincial
competence could give rise to the very real perils of added litigation,
inconsistent judgments regarding marital status, and general con-
fusion.
If it does become imperative to transfer legislative jurisdiction
over divorce to the provinces in conjunction with a Full Faith and
Credit clause, the following measures are suggested:
(1) Care should be taken to ensure that the clause adopted pre-
cludes a collateral attack on an adjudicated matter that could
not be entertained in the courts of the rendering province.
(2) Domicile as the sole basis for jurisdiction should be rejected
in favour of connecting factors that could not be impeached
on collateral grounds.
(3) A decision to nullify a decree granted in one province should
including the one which
void the decree in every province –
rendered it –
to avoid the situation of “limping marriages”.
(4) A central registry system could also be used to record marital
proceedings.
If divorce is to be subject to provincial control, Canada should
learn from the American experience.
III. Conclusion
In light of the difficulties encountered in the United States
under the Full Faith and Credit clause, a better solution would
seem to be the adoption of a constitutional text providing for the
recognition of provincial divorces throughout Canada where at
least one of the spouses has a substantial connection with the
25 Rodgers & Rodgers, The Disparity Between Due Process and Full Faith
and Credit: The Problem of the Somewhere Wife (1967) 67 Colum. L. Rev.
1363, 1378.
26 Ibid., 1400-1, n.219.
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COMMENTS – COMMENTAIRES
province of the rendering court. Control by the recognizing court
would be limited to challenging the validity of the divorce decree
in accordance with the law of the rendering province and the
constitutional requirement of a substantial connection.”7
It should further be mentioned that a problem of lis pendens
may arise in a situation in which both spouses bring petitions of
divorce in two different provinces. At the present time this is
covered by section 5(2) of the Divorce Act 28 which contains special
rules dealing with concurrent proceedings. If divorce were a pro-
vincial matter this problem might be difficult to solve, especially in
circumstances where a decree is granted by one court and refused
by another. In such a situation a province might be compelled to
recognize a divorce granted in a second province which conflicts
with a local decree or with one granted in a third province.
It must therefore be admitted that, apart from sociological
and cultural considerations, leaving exclusive jurisdiction in matters
of divorce to the federal Parliament is by far the simplest and
most effective way to deal with the question of recognition of
divorces throughout Canada.
J.-G. Castel*
27 This solution
is proposed
in Committee on
the Constitution of the
Canadian Bar Association, Towards a new Canada (1978), 135, Recommend-
ation 2.
28R.S.C. 1970, c.D-8.
* Professor of Law, Osgoode Hall Law School, York University, Toronto.
This short article is based on a paper prepared in 1978 for the Committee on
the Constitution of the Canadian Bar Association.
