Judgments

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Decision Content

76-T-601
Katherine Reinhold Williamson (Applicant)
v.
Hugh Anthony Williamson (Respondent)
Trial Division, Mahoney J.—Toronto, March 22; Ottawa, March 24, 1976.
Practice—Divorce—Simultaneous petitions for divorce in different courts—Motion to remove actions into this Court— Parties most clearly associated with Province of Newfound- land—Application of Newfoundland Divorce Rules—Divorce Act, R.S.C. 1970, c. D-8, s. 5(1),(2)(b) as am. by Federal Court Act, Sch. 11—Federal Court Rules 438, 1086—Newfoundland Divorce Rules, 1969, ss. 3(2), 14.
Applicant and respondent filed simultaneous divorce peti tions in Ontario and Newfoundland respectively. A motion was brought to remove the actions into this Court.
Held, the motion is granted. Applicant has filed, under section 5(2)(b) of the Divorce Act, an affidavit exhibiting copies of both petitions. Neither has been discontinued, and both establish that each court would otherwise have jurisdic tion. As required by Rule 1086, it is specified that Newfound- land is the province with which the parties are or have been most clearly associated. Thus, the Divorce Rules, 1969, of the Supreme Court of Newfoundland will apply. It is a necessary modification to Rule 14 of the Divorce Rules that Federal Court Rule 483 applies to the arrangement for the hearing. As Rule 12 of the Divorce Rules provides for the filing and service of the answer to the petition within a time that could not have been met, the petition filed in the Newfoundland court is deemed the originating document; applicant must file and serve her answer on or before April 5, 1976. Since the Divorce Rules do not make provision for discovery and the clear intention of Federal Court Rule 1086(2) is to make applicable only the Divorce Rules of the provincial court, not its general rules, it follows that recourse should be to the Rules of this Court. Thus, discovery by written interrogatories will not follow by virtue of incorporation in the Divorce Rules of the Rules of the Supreme Court of Newfoundland, if that is their effect. An order will be required under Rule 466A.
MOTION. COUNSEL:
T. G. Bastedo for applicant.
W. A. D. Miller for respondent.
SOLICITORS:
Bastedo, Copper, Kluwak, Caroe & Shos-
tack, Toronto, for applicant.
Weir & Foulds, Toronto, for respondent.
The following are the reasons for order ren dered in English by
MAHONEY J.: The applicant and respondent are wife and husband. The applicant filed a petition for divorce in the Supreme Court of Ontario on February 2, 1976. The respondent filed a petition for divorce in the Supreme Court of Newfound- land the same day.
The Divorce Act' provides:
5. (1) The court for any province has jurisdiction to enter tain 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 ordinar ily resident in that province for a period of at least one year immediately preceding the presentation of the petition and has actually resided in that province for at least ten months of that period.
(2) Where petitions for divorce are pending between a hus band 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,
(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 juris diction 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 applicant has filed, in support of her motion for directions under section 5(2)(b), an affidavit exhibiting copies of the petitions filed in both provincial supreme courts. Neither has been dis continued and both establish that each of those courts would otherwise have jurisdiction. Accord ingly, the motion to remove the actions into this Court is to be granted.
The Rules of this Court provide:
' R.S.C. 1970, c. D-8 as amended by Schedule II of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
Rule 1086. (1) When the Trial Division makes a direction under section 5(2) of the Divorce Act that petitions pending before other courts be removed into the Trial Division, it shall, by the direction, specify the province with which the husband and wife are or have been most closely associated according to the facts appearing upon the petitions as contemplated by section 20 of the Divorce Act.
(2) Subject to paragraph (3), the rules made under the Divorce Act by the Court for the province specified under paragraph (1) by an order removing petitions into the Trial Division, shall be applicable, with necessary modifications, to the future conduct of the proceedings in the Trial Division.
(3) Either at the time when the application is made for a direction under subsection (2) of section 5 of the Divorce Act, or at any subsequent time, an application may be made by any of the parties to the proceedings for a direction providing for a variation in, or addition to, the Rules as determined by para graph (2) for the future conduct of the proceedings in the Trial Division.
The applicant and respondent took up residence in Newfoundland late in 1967. The respondent still lives there. The applicant moved to Ontario in August, 1974. There is no indication that the respondent has ever lived in Ontario. As required by Rule 1086, I specify that Newfoundland is the province with which they are or have been most closely associated. By virtue of that finding, the Divorce Rules, 1969 of the Supreme Court of Newfoundland will apply to future proceedings. They are hereafter referred to as "the Divorce Rules".
Rule 14 of the Divorce Rules provides for the hearing of divorce petitions in terms suitable to a court holding regular scheduled sittings in the province. Clearly, it is a necessary modification to the Divorce Rules that Rule 483 of the General Rules and Orders of this Court apply to the arrangement for the hearing in these proceedings rather than paragraphs (1),(2) and (3) of Rule 14. Paragraph (4) of Rule 14 should be observed when application is made under Rule 483.
Rule 12 of the Divorce Rules provides for the filing and service of the answer to the petition within a time that could not, in the peculiar cir cumstances that pertain, have practically been met. While what is alleged in both petitions indi cates of a great deal of common factual ground, it is preferable that the pleadings proceed in a way
that undisputed facts are clearly and unequivocally defined by admissions. Accordingly, I will order that the petition filed in the Supreme Court of Newfoundland be deemed to be the originating document for purposes of future proceedings and that the applicant file and serve her answer on or before April 5, 1976. Service may be effected on the Toronto agents of the respondent's St. John's solicitors, said agents having appeared at the hear ing of this application.
Counsel say, and the two petitions appear to confirm, that the only real issue at the hearing will be custody of the parties' children. As a result it was submitted that, if at all possible, the proceed ings should be scheduled so that final judgment may be rendered before the start of the next school year. They were not, however, in agreement on the manner discovery should be conducted. I reserved this matter and have now concluded that, in the absence of agreement, I should not now deal with it.
Rule 3(2) of the Divorce Rules provides:
Subject to these rules and to any enactment dealing with matrimonial causes, in all matters, other than those dealt with in these rules, the practice and procedure in matrimonial causes shall be governed by the Rules of the Supreme Court of Newfoundland relating to civil proceedings insofar as they, with the necessary modifications, can be made applicable.
Since the Divorce Rules do not, themselves, make provision for discovery, I take it that the assump tion of counsel, at the hearing of this application, that discovery would be conducted by written interrogatories, rather than viva voce, stems from the Rules of the Supreme Court of Newfoundland thus incorporated in the Divorce Rules. It seems to me that the clear intention of Rule 1086(2) of this Court is to make applicable only the divorce rules of the court of the province with which the parties are found to have been most closely associated, not its general rules. It follows that when recourse is to be had to general rules, it should be to the general rules of this Court rather than of the provincial supreme court. That being so, discovery by way of interrogatories requires an order under Rule 466A of this Court; it will not follow as a matter of course by virtue of incorporation in the Divorce
Rules of the Rules of the Supreme Court of New- foundland if, indeed, that is their effect.
Finally, future proceedings in this Court are the result of the removal here of proceedings properly commenced in other jurisdictions; they are not proceedings initiated here. Accordingly, I direct that the title of the future proceedings in this Court be as follows:
IN THE MATTER OF the Divorce Act
and
IN THE MATTER OF an action in the Supreme Court of Ontario
between Katherine Marsh Reinhold Williamson, Petitioner,
and Hugh Anthony Williamson, Respondent;
, and
IN THE MATTER OF an action in the Supreme Court of New- foundland between Hugh Anthony Williamson, Petitioner, and Katherine Reinhold Williamson, Respondent.
The costs of and incidental to this application are reserved to be disposed of by the trial judge.
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