A-83-74
Carmel Edwina Winmill (Appellant) (Plaintiff)
v.
William L. Winmill (Respondent) (Defendant)
Court of Appeal, Thurlow and Ryan JJ., Shep-
pard D.J.—Vancouver, June 28; August 6,
1974.
Jurisdiction of Court—Divorce—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, ss.
2-5.
The appellant (plaintiff) brought an action in the Trial
Division 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
date of action, as required by section 5(1x6) of the Act. The
appellant 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".
The trial judge dismissed the action for lack of jurisdiction.
The appellant appealed.
Held, dismissing the appeal, section 2 of the Divorce Act
defines "court" for each province and excludes the Federal
Court of Canada. Sections 3 and 4 of the Act grant the right
to present a petition for divorce on any of the grounds
mentioned, subject to section 5, which confers on particular
courts jurisdiction to entertain the petition and to grant
relief only if the conditions in section 5(1) (a) or (b) are met.
Where neither the petitioner nor her spouse has been
ordinarily resident in a province for at least one year, as
stipulated in section 5(1x6), no right to present a petition
has been conferred. Whenever there is such a right, there is
a provincial court having jurisdiction to entertain it. There is
no room for the application of section 25 of the Federal
Court Act. The Federal Court derives no jurisdiction as a
superior court of record. There is recourse to it only in
the special provisions of section 5(2)(b).
Board v. Board (1919) 48 D.L.R. 13; Mayor of London
v. Cox (1867) 2 E. and I. App. 239, distinguished.
Shuttleworth v. Seymour (1914) 28 W.L.R. 444; Mar-
gach v. The King [1933] Ex.C.R. 97, applied.
APPEAL.
COUNSEL:
W. O'Malley Forbes for appellant.
Lorne A. Montaine for respondent.
SOLICITORS:
Owen, Bird, Vancouver, for appellant.
Montaine, Black & Davies, Vancouver, for
respondent.
The following are the reasons for judgment
delivered in English by
THURLOW J.: This is an appeal from a judg
ment of the Trial Division which dismissed the
appellant's action for a divorce from the
respondent.
The parties were married at Vancouver in
April 1969 and lived there until October 1972
when they moved to Edmonton. On July 30th,
1973, the appellant left the respondent and
returned to Vancouver where she has since
resided. Early in August 1973 the respondent
also returned to Vancouver and has since resid
ed there. Both parties have at all material times
been domiciled in Canada. The appellant's
action for a divorce was commenced on Sep-
tember 21st, 1973, and was dismissed on March
28th, 1974, on the ground that the Court was
without jurisdiction to entertain it.
The basis of the appellant's claim that the
Trial Division of this Court had jurisdiction is
section 25 of the Federal Court Act, which
provides 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 appellant's position, as I understand it, is
that she has a substantive right under the law to
a divorce and that, since neither party had been
ordinarily resident in any province for a period
of one year immediately preceding the com
mencement of her action in this Court, no other
court referred to in section 25 had, or has had
since then, jurisdiction to grant the relief to
which she claims to be entitled.
The law relating to divorce a vinculo is statu
tory in origin and both in England and in this
country the statutes which have conferred a
right to such relief have done so by way of
conferring jurisdiction upon a particular court
or courts to entertain the proceedings and grant
the relief. The statutes in effect for that purpose
in Canada were repealed upon the coming into
force of the Divorce Act, S.C. 1967-68, c. 24
(see section 23), which replaced or displaced all
the former law on the subject and since then has
constituted a code relating to it. In my opinion,
it is in this context, or perhaps more accurately,
this lack of context, that the statute and its
provisions should be read and interpreted.
The material parts of sections 3, 4 and 5 of
the Act provide as follows:
GROUNDS FOR DIVORCE
3. Subject to section 5, a petition for a divorce may be
presented to a court by a husband or wife, on the ground
that the respondent, since the celebration of the marriage
(d) has treated the petitioner with physical or mental
cruelty of such a kind as to render intolerable the con
tinued cohabitation of the spouses.
4. (1) In addition to the grounds specified in section 3, and
subject to section 5, a petition for divorce may be presented
to a court by a husband or wife where the husband and wife
are living separate and apart, on the ground that there has
been a permanent breakdown of their marriage by reason of
one or more of the following circumstances as specified in
the petition, namely:
JURISDICTION OF COURT
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.
(2) Where petitions for divorce are pending between a
husband and wife before each of two courts that would
otherwise have jurisdiction under this Act respectively to
entertain them and to grant relief in respect thereof,
(a) if the petitions were presented on different days and
the petition that was presented first is not discontinued
within thirty days after the day it was presented, the court
to which a petition was first presented has exclusive
jurisdiction to grant relief between the parties and the
other petition shall be deemed to be discontinued; and
•
(b) if the petitions were presented on the same day and
neither of them is discontinued within thirty days after
that day, the Federal Court—Trial Division has exclusive
jurisdiction to grant relief between the parties and the
petition or petitions pending before the other court or
courts shall be removed, by direction of the Federal
Court—Trial Division, into that Court for adjudication.
The "court" for any province is defined in sec
tion 2 and does not include the Federal Court of
Canada.
It will be observed that the form of sections 3
and 4 is not such as to expressly confer on a
husband or wife a right to a divorce on any of
the grounds therein mentioned. Rather, what is
conferred is a right to present to a court a
petition for a divorce on any of the grounds
mentioned, and even this right is not conferred
in absolute terms. In the case of each of these
sections the right conferred is expressly made
subject to section 5, which in its turn confers on
particular courts jurisdiction to entertain the
petition and to grant relief in respect thereof,
but only when the conditions defined in para
graphs (a) and (b) of subsection (1) are met. No
other court is authorized to grant such relief. It
appears to me to follow from this that any right
a party may have to present a petition for
divorce is exercisable only subject to and under
the conditions therein mentioned, and that any
right the party may have to relief in respect of
the petition or the grounds therefor is enforce
able only under or subject to the same condi
tions. As I read the statute, the effect, therefore,
is that, unless the petitioner is domiciled in
Canada and he or his spouse has been ordinarily
resident in a province for at least one year
immediately preceding the presentation of a
petition to the court for that province, no right
to a divorce or to present a petition for a
divorce or to relief in respect of such a petition
in any court has been conferred.
The corollary of this is that, whenever there is
a right under the statute to present a petition,
there is a court of a province which has jurisdic
tion to entertain it and grant the appropriate
relief.
It follows in my opinion that there is no room
for the application of section 25 of the Federal
Court Act and that the learned Trial Judge was
right in dismissing the appellant's action.
The appellant put forward an alternative sub
mission based on Board v. Board (1919) 48
D.L.R. 13, to the effect that, as the Federal
Court is a superior court of record (see section
3 of the Federal Court Act), jurisdiction to
administer the substantive law, including the
substantive law of divorce, is presumed to be
vested in the Court under the principle stated by
Wiles J., in Mayor of London v. Cox (1867), 2
E. & I. App. 239 at 259, that nothing shall be
intended to be out of the jurisdiction of a supe
rior court but that which specially appears to be
so. To state the principle, however, in my opin
ion shows that it does not support the appel
lant's contention, for there is no substantive law
of divorce a vinculo except that enacted by the
Divorce Act, and the substantive right created
by that Act is expressly made subject to
section 5, which authorizes the presentation of a
petition only to particular provincial superior
courts and prescribes as conditions that the
petitioner or spouse be resident in the province
for a year immediately before the presentation
of the petition. In my opinion (assuming for this
purpose that divorce jurisdiction could other
wise be presumed to be vested in the Federal
Court, which is at best doubtful), it "specially
appears" from this that divorce was intended by
Parliament to be out of the jurisdiction of the
Federal Court, and this interpretation is, I think,
reinforced by the special provision of paragraph
5(2)(b) which confers jurisdiction on the Feder
al Court in the particular circumstances therein
defined.
I would dismiss the appeal without costs.
* * *
RYAN J.—I concur.
* * *
The following are the reasons for judgment
delivered in English by
SHEPPARD D.J.: The reasons of Mr. Justice
Thurlow are adopted down to the end of the
paragraph which reads:
The "court" for any province is defined in section 2 and
does not include the Federal Court of Canada.
The divorce is a creature of statute and being
a creature of statute it is like a mechanic's lien
and therefore the court assigned by the statute
creating the right to divorce is the exclusive
court.
In Shuttleworth v. Seymour (1914) 28 W.L.R.
444, Brown J. at p. 446 states:
Mechanics' liens were not recognised at common law, nor
were they allowed in equity. The lien is purely a creature of
statute, and, although recognised and provided for in
Canada and in all of the United States, there is no mechan
ics' lien law in England: 27 Cyc. 17. The right to the lien
being entirely statutory, not only the right itself but the
method of enforcing it must depend upon the statute, and
must be pursued in strict compliance with the terms of the
statute. If a particular Court is designated to administer the
remedy, resort must be had to that Court, and the jurisdic
tion of that Court is exclusive: 27 Cyc. 317.
Therefore the exclusive trial court under section
5 is designated by section 5(1) as a provincial
court or only under section 5(2) of the Divorce
Act, as the Federal Court of Canada.
The principle Expressio unius est exclusio
alterius excludes section 25 of the Federal
-Court Act. In Margach v. The King [1933]
Ex.C.R. 97, the Soldier Settlement Act provided
for the right of appeal to the Exchequer Court
in certain matters and it was held that such
express appeal in the Soldier Settlement Act
excluded the general provision under section
19(d) of the Exchequer Court Act. Angers J. at
p. 102 stated:
It was submitted on behalf of suppliant that the claim
herein is one of the class of claims defined in clause (d) of
section 19 of the Exchequer Court Act (R.S.C., 1927, chap.
34); this clause is as follows:
19. The Exchequer Court shall also have exclusive
original jurisdiction to hear and determine the following
matters:—
(d) Every claim against the Crown arising under any law
of Canada or any regulation made by the Governor in
Council.
This subsection is very broad. It lays down a general rule
applicable in all cases where there is no limit or exception,
either express or implicit.
The Soldier Settlement Act contains no general clause
conferring jurisdiction on the Exchequer Court. There are
however matters, under the Act, which are expressly
referred to the Court:
and at p. 103,
Had the legislators intended to empower a judge of this or
any other Court to deal with this question of credit, it seems
to me that they would have mentioned it, as they did in
other matters, for instance in connection with the rescission
of an agreement, as provided for in the immediately preced
ing section, namely section 69.
The legislators have deemed it expedient, notwithstanding
subsection (d) of section 19 of the Exchequer Court Act, to
specify in the Soldier Settlement Act the matters in which
they intended to give jurisdiction to the Court. In so doing it
seems to me that they restricted the powers of the Court to
the matters specifically indicated in the statute. The inten
tion of the legislators appears to me to have been to give to
the Board exclusive and final jurisdiction on all questions
which are not expressly referred to the Court or a judge
thereof for adjudication. This is a case, in my opinion, in
which the maxim Expressio unius est exclusio alterius would
apply.
As section 5(2) of the Divorce Act states
when the Federal Court of Canada has jurisdic
tion in divorce that excludes section 25 of the
Federal Court Act applying to divorce.
The learned Trial Judge was correct in dis
missing the action as beyond the jurisdiction of
the Federal Court and the appeal is therefore
dismissed but under the circumstances without
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.