Supreme Court Judgments

Supreme Court of Canada

Powell v. Cockburn, [1977] 2 S.C.R. 218

Date: 1976-04-01

George Hubert Powell (Plaintiff) Appellant;

and

Viola M. Cockburn (Defendant) Respondent.

1975: May 7; 1976: April 1.

Present: Laskin C.J. and Judson, Spence, Dickson and Beetz JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Conflict of laws—Divorce—Recognition of foreign decrees—Jurisdiction—Fraud in obtaining divorce—Fraud going to the merits—Fraud going to the jurisdiction.

Evidence—Presumptions—Burden of proof—Successive presumptions—Alternating duty to adduce evidence—Effect of evidence on presumptions—Probative force of presumptions.

In response to an action taken by appellant for a declaration that the marriage was void by reason of a subsisting marriage of the wife to Cockburn, the wife pleaded that the earlier marriage had been dissolved by decree of divorce in Michigan on April 24, 1947. The trial judge found that Cockburn was at the date of his filing for divorce domiciled in Ontario not in Michigan, that he had not satisfied the Michigan residence requirement of one year bona fide residence prior to filing and that his case in the Michigan Court was wholly fraudulent. On the basis of these findings, the trial judge refused recognition of the U.S. decree, declared Powell free of the marriage and set aside a maintenance order in favour of the wife. The Court of Appeal was not convinced that the evidence justified the inferences that Cockburn had not abandoned his domicile of origin in Ontario acquiring a domicile of choice in Michigan or that he had not resided in Michigan for the statutory period of one year.

Held (Judson J. dissenting): The appeal should be allowed.

Per Laskin C.J. and Spence, Dickson and Beetz JJ: Three presumptions operate. They are in favour of: (i) the validity of marriage, (ii) the validity of a foreign divorce decree and (iii) the domicile of origin. They do not cancel nor conflict; the effect is to impose a duty on the party against whom they operate to adduce some evidence on the issue. Accordingly, as that had been

[Page 219]

done, the presumptions were exhausted. The ultimate onus of proving his case is on the plaintiff throughout.

Where a foreign court is fraudulently led into believing the jurisdictional facts are such as to give it jurisdiction when they are not, this will be a ground for refusal of the domestic court to recognize the decree. Although not at issue here, for reasons of comity and practical difficulties the courts in the past have refused to inquire into fraud going to the merits. Even as to jurisdictional fraud there should be great reluctance to make such a finding. However, where, as here, the trial judge made a positive finding of jurisdictional fraud and there was evidence upon which he could make that finding, an appellate court should not interfere.

In an action for maintenance pursuant to s.1 of the Matrimonial Causes Act, R.S.O. 1970, c.265 no distinction is to be drawn between void and voidable marriages. The text of the Act suggests no such distinction, nor does the policy which extends recognition to the de facto marriage resulting from years of co-habitation following an apparently regular form of marriage.

Per Judson J., dissenting: For the reasons given in the Court of Appeal the appeal should be dismissed.

[Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.); Armitage v. Attorney General, [1906] P. 135, Travers v. Holley, [1953] P. 246 followed: Le Mesurier v. Le Mesurier, [1895] A.C. 517 not followed; Eater v. Bater, [1906] P. 209; Crowe v. Crowe, [1937] 2 All E.R. 723; Bonaparte v. Bonaparte, [1892] P. 402; Shaw v. Gould (1868), L.R. 3 E. & I. App. 55; Pemberton v. Hughes, [1899] 1 Ch. 781; Harvey v. Farnie (1880), 5 P.D. 153; Salvesen v. Administrator of Austrian Property, [1927] A.C. 641; MacAlpine v. MacAlpine, [1958] P. 35; Middleton v. Middleton, [1967] P. 62; Williams v. North Carolina (1944), 325 U.S. 226; Ramsay v. Ramsay (1913), 108 L.T. 382 (Prob. D.); Barnet v. Barnet, [1934] O.R. 347 (C.A.) referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] reversing a decision of Cromarty J. at trial[2], declaring null and void the marriage of the parties. Appeal allowed, Judson J. dissenting.

[Page 220]

The judgment of Laskin C.J. and Spence, Dickson and Beetz J.J. was delivered by

DICKSON J.—The issue in these proceedings is whether the marriage between the appellant, George Hubert Powell, and the respondent, Viola M. Cockburn, (whom I shall refer to as the “wife”) solemnized at the City of Guelph, Ontario on April 5, 1951, is void because of a valid and subsisting marriage of the wife to James Collier Cockburn.

I

In response to an action brought by Powell for a declaration that his marriage to the wife was void by reason of a subsisting marriage to Cockburn, the wife pleaded that her marriage to Cockburn was dissolved by decree of divorce in the State of Michigan on April 24, 1947. She pleaded further that at the time of the divorce Cockburn was domiciled in the State of Michigan and that he had been a resident of that State for a period in excess of two years prior to the divorce decree. In a reserved judgment in which the evidence and the authorities were thoroughly canvassed, the trial judge, Cromarty J., made three very significant findings: (i) that at the date of filing his Bill of Complaint for Divorce in the Michigan Court on November 22, 1946, Cockburn was domiciled in Ontario and not in Michigan; (ii) that Cockburn had not satisfied the residence requirements for divorce in the State of Michigan, not having been a bona fide resident of the State for one year prior to the filing of his petition; (iii) that Cockburn’s case in the Michigan Court was wholly fraudulent. On these findings the trial judge refused recognition of the foreign divorce decree, declaring Powell free from the bond of marriage between himself and the wife. He also set aside an order for maintenance in favour of the wife. On appeal the Court of Appeal reversed. Schroeder J.A. delivered an oral judgment for the Court in which he said:

The evidence has been exhaustively reviewed by both counsel and, upon a careful consideration of all the testimony, we are far from convinced that viewed in its entirety it justified the learned trial Judge in drawing the inference that (a) the said Collier [sic] had not

[Page 221]

abandoned his domicile of origin in Ontario and acquired a domicile of choice in Michigan or (b) that he had not resided in the State of Michigan for the statutory period of one year prior to the commencement of the said divorce proceedings.

He continued with these observations:

It must be borne in mind that the evidence required to overcome the presumption as to the validity of the marriage between the parties to this action must be of a cogent and convincing character, since the judgment has such a significant bearing on the status of these parties with all the consequences which flow from it. It was quite possible, for all that the evidence revealed to the contrary, that James Collier Cockburn might have been resident in two jurisdictions throughout the statutory period as required under the Michigan Divorce Law.

and concluded:

The evidence leaves too many gaps both on the issue of domicile and on the issue as to whether the appellant had fulfilled the condition as to the required period of residence in Michigan. This vital question might have been resolved by the evidence of James Collier Cockburn adduced either before the Court in this action, or taken on commission and read into the record at the trial. The decision turns essentially upon the proper inferences to be drawn from all the facts disclosed on the record, and we are not prepared to say that the inferences drawn by the learned trial Judge and upon which his judgment is founded, are adequately supported by the evidence adduced.

The disparate views concerning the appropriate inferences to be drawn from the evidence compel narration of the evidence at trial before the legal issues to which the case gives rise can be considered.

II

Cockburn was born in Ottawa on January 26, 1916. He lived in Ontario until joining the Canadian army in 1939 and two years later, proceeded overseas. In 1943, he was discharged from the army and returned to Canada, residing in Toronto until October 1944. In that month he and the wife were married in New York City and immediately thereafter travelled to Vancouver. Cockburn represented that he was the editor of a newspaper in that city. Three days later he left the hotel in which the parties had been staying, taking with

[Page 222]

him the wife’s purse containing her savings, and did not return. In December, 1944 he enlisted in the United States army; six months later he became a citizen of that country. Following discharge from the army in November, 1945, he went to Detroit, Michigan, and stayed with an aunt resident in that City. His brother, Robert Cockburn, met him at the Central Station in Detroit, in November or December, 1945, and stayed with him in Detroit for a few days. Robert Cockburn never saw his brother in Detroit again. During his military service in the United States, Cockburn was in communication with the wife by letter from time to time; after discharge from the army, he wrote to her from Detroit and offered to resume cohabitation. She declined.

The next development in the unfolding story comes from the evidence of Robert Cockburn who told the Court that at the end of January, 1946, he had joined his parents in Lima, Ohio, to celebrate his brother’s birthday. James Cockburn was then occupying a small apartment and operating a business in Lima by the name of Marburn Beauty Supply. This evidence, which the trial judge accepted without reservation, was strongly supported by one of the exhibits, consisting of three pages from the Lima telephone directory of July, 1946, containing a residential listing for a James C. Cockburn at 216½ East Market Street and a commercial listing: “Beauty Shop Equipment & Supplies. Marburn Beauty Supplies Co., 216 East Market St.”

There was thus evidence of residence in, and strong ties with, the State of Ohio. On the other hand, Marvin K. Rosen, a Detroit attorney, told the trial judge that he had been retained in April, 1946 to represent Cockburn on a criminal charge, later dismissed. At that time Cockburn enquired about the possibility of obtaining a divorce and Rosen advised him that the laws of Michigan required one year of residence prior to instituting proceedings. Rosen said that Cockburn returned in November, 1946 and divorce proceedings were then instituted. This evidence of a Michigan connection was reinforced by evidence from the records of a company called International Milling Co. which showed that Cockburn commenced

[Page 223]

employment on May 3, 1946 as a junior salesman and terminated employment October 8, 1946. His address, according to the records of the company, was “803 Seward, Detroit”. The trial judge found that during his period of employment with International Milling Co. Cockburn was living in Lima, Ohio and not in Michigan, even though he gave his aunt’s home as his place of residence.

The next piece of evidence placed Cockburn outside the State of Michigan. Mr. Mike Bige testified that in May or June, 1946 he rented a house located at 3730 Belleview Road in Toledo, Ohio to Cockburn and a woman, known as Ruth Mary, with whom Cockburn was then living and whom he later married. Bige swore that Cockburn was in the house from June, 1946 until evicted in May, 1948. Cockburn was President of Saner Supply Co., distributor of beauty supply products, and was formerly of Lima, Ohio.

Such is the state of the record at the date when Cockburn’s divorce petition against the wife was filed in the City of Detroit. Evidence of events thereafter is not of great consequence, for the determinant twelve months were those immediately preceding the date of initiation of divorce proceedings. Between that date and the date of granting the decree, Rosen saw Cockburn four or five times. Rosen communicated with his client through an address and phone number in Detroit, leaving a message, which Cockburn would answer by return call or a visit to Rosen’s office. The trial judge found that Cockburn was simply using this address for the purpose of receiving mail and telephone calls and that at the time he was living in Lima, Ohio and running a business there, probably from as early as December, 1945. Rosen’s further evidence was to the effect that after the Bill of Complaint was filed Cockburn told him that his, Cockburn’s, company was sending him to Lima, Ohio to work. When the date of the divorce hearing was known, Rosen wrote to Cockburn at an address in Lima.

On April 27, 1947 Cockburn, the peregrinating petitioner, was granted a decree for divorce by the Circuit Court for the County of Wayne, State of Michigan on grounds of extreme repeated cruelty

[Page 224]

and desertion on the part of the wife. The wife was advised by mail of the Bill of Complaint in the divorce proceedings. She retained counsel but did not contest the allegations of Cockburn and she was taken by the Michigan Court as having confessed for failure to appear after due service. In July or August, 1947, Cockburn’s brother visited Cockburn and Ruth Mary on several occasions at 3730 Belleview Road, Toledo.

Four years later the wife married Powell. They separated in the latter part of 1958 after seven years of marriage. In August, 1959 the wife issued a writ, seeking alimony and on July 4, 1959 Ferguson J. gave judgment in her favour based on minutes of settlement which provided for $600 arrears of alimony and $40 per week from December 3, 1959. In September, 1969 she made an application to increase the weekly allowance and in December, 1969 Powell commenced the present proceedings to have the purported marriage between himself and the wife declared void. On May 29, 1970 while these proceedings were pending, Lacourcière J. made an order increasing the alimony payment to $60 per week from May 29, 1970.

In May, 1971, Powell moved in the State of Michigan to set aside the 1946 divorce on the ground that Cockburn had never been a resident of Michigan and that the Michigan Court lacked jurisdiction. The motion was denied on the ground that Powell had no standing to challenge the validity of a divorce action in which he was not a party. At the time of the trial of the present action it appeared that Cockburn had been divorced in California from Ruth Mary and was living in the State of New Jersey.

The foregoing, I believe, fairly summarizes the evidence upon which Mr. Justice Cromarty concluded that Cockburn was not resident in Michigan for the twelve month period preceding the institution of his divorce proceedings in Detroit in November, 1946.

[Page 225]

III

The factums in this case make frequent reference to “presumptions”, each side seeking to throw the burden of adducing evidence upon the other. There would seem to be some confusion as to the legal effect of presumptions. In the case before us, there are three presumptions which may be relevant: (i) the presumption of validity of marriage (Powell and the wife; Cockburn and the wife); (ii) the presumption of validity of a foreign divorce decree (Cockburn and the wife); and (iii) the presumption in favour of the domicile of origin (Cockburn). Strictly speaking, they do not conflict nor cancel each other out, nor do they give added probative value. Their only effect is to impose a duty on the party against whom they operate to adduce some evidence (See 9 Wigmore on Evidence, S. 2487, p. 281). They may, as in the present case, impose an alternating duty to produce evidence which shifts from one party to the other, a process which Wigmore describes as “successive presumptions” (S. 2493, p. 292). At the outset the appellant Powell faced a presumption of validity with regard to his marriage to the wife. He satisfied this presumption by leading evidence to show the existence of her prior marriage. With regard to this marriage, too, there was a presumption of validity, but the two presumptions did not conflict. Rather, the wife had to lead evidence to show that the previous marriage had been terminated. This she did by evidence of the foreign divorce. Evidence having been led on each issue the presumptions disappeared. It fell then to the trier of fact to decide the issues upon all of the evidence adduced. In this case if the trier of fact was not satisfied on a balance of probabilities that Powell had proved his case (that the Powell-Cockburn marriage was a nullity), then Powell must fail. The ultimate burden of proof, the risk of non-persuasion of the trier of fact, rested on Powell throughout.

On the evidence, the judge at trial held that Powell had satisfied the burden which rested upon him. As I have intimated, the Court of Appeal held that there was too much doubt on the issues of Cockburn’s domicile and residence to say that Powell had overcome the presumption of validity

[Page 226]

of the parties’ marriage. In reaching that conclusion, Schroeder J.A. speaks of “the evidence required to overcome the presumption as to the validity of the marriage of the parties to this action”, seeming to treat the presumption as having an artificial probative force, giving Powell an added burden to displace. If I am correct in my understanding of what Mr. Justice Schroeder is saying then in my opinion, with respect, he erred. When Powell came forward with evidence, the presumption of validity with respect to his marriage disappeared, and it was then for the judge to give force as he saw fit to the totality of probative matter. On each issue before the Court there was some evidence; hence presumptions were dispelled.

IV

Counsel for the wife submitted that domicile is not the sole test for recognition of foreign divorce decrees (LeMesurier v. LeMesurier[3] and that our courts will recognize foreign decrees granted by a jurisdiction with which the petitioner or respondent has a “real and substantial connection” (Indyka v. Indyka[4]). Counsel maintained that Cockburn had a real and substantial connection with the State of Michigan or, in the alternative, with the State of Ohio. If the connection was with Ohio then, following Armitage v. Attorney General[5], our courts should give recognition to the Michigan decree because Ohio would do so under the Full Faith and Credit Clause of the United States Constitution.

In Indyka’s case the Law Lords discussed at length the various grounds upon which foreign divorce decrees may be accorded recognition in English courts. In that case, a Czechoslovakian divorce decree granted to a wife resident in Czechoslovakia was given recognition in England. The husband, a Czech national, at the time of the divorce had acquired an English domicile. Subsequently, he married his second wife in England. When she petitioned for divorce, he cross-peti-

[Page 227]

tioned for nullity, arguing that the Czech divorce would not be recognized in England, the domicile of the parties. It is difficult to extract a ratio decidendi from the judgments in Indyka; their Lordships held for a variety of reasons that the foreign decree had dissolved the first marriage for the purposes of English law. Various alternative grounds for extending recognition to foreign divorce decrees were considered, including, domicile, the place of the matrimonial home, the residence of one or both parties, the country of nationality, “domicile” defined in a less exacting manner, the predominant country with regard to the spouses, the place of celebration of the marriage, and a place with which there is a real and substantial connection. The decision might have rested on the application of the reciprocity rule in Travers v. Holley[6], but the Court, in discussing the multifarious grounds for recognition, chose to make the scope and effect of the decision much broader. The judgment has been interpreted, in my view correctly, as deciding (i) LeMesurier is no longer good law insofar as it holds that recognition will be extended only to divorce decrees granted in the domicile, for that is only one of several bases for jurisdiction; (ii) an English court should recognize a foreign decree “whenever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction” (Cheshire, Private International Law, 8th ed. (1970), at p. 363).

Before deciding whether a real and substantial connection test should be adopted as the basis for the exercise of divorce jurisdiction in Canada, it would seem well to settle the issue of fraud. If the divorce decree can be successfully attacked on that ground, further consideration of a real and substantial connection test becomes unnecessary it will also be apparent of course that if the sole test for recognition of foreign decrees is domicile, there would be no need even to enter into a discussion of fraud. The trial judge’s finding that Cockburn was domiciled in Ontario would conclude the matter against the wife.

[Page 228]

V

A general statement as to the effect of fraud in procuring a foreign judgment will be found in Castel, Canadian Conflict of Laws (1975), at p. 448:

It is well established that fraus omnia corrumpit. This was emphasized by Chief Justice de Grey in the Duchess of Kingston’s Case in the following words:

“Fraud is an extrinsic collateral attack which vitiates the most solemn proceedings of courts of justice.”

and at p. 498:

Fraud in obtaining jurisdiction over the defendant is a good ground of defence against the enforcement of the foreign judgment. The courts believe that facts which relate to jurisdiction are so important that they should always be open to attack on the ground of their falsity. This rule applies even if the foreign court has declared itself competent upon trial of this issue. This attitude has been influenced by the theory that the validity of a foreign judgment can always be questioned for lack of jurisdiction in the foreign court. Biggar v. Biggar, [1930] 2 D.L.R. 940.

The foregoing statement of law is subject to some qualification in relation to recognition of foreign divorce decrees. If the fraud in obtaining the foreign decree goes to the merits of the petition, domestic courts will not pay heed to it, as the substantive grounds upon which the decree is granted have never been of concern to the recognizing court. (Bater v. Bater[7], Crowe v. Crowe[8] at p. 558). Fraud going to the jurisdiction of the foreign court is another matter. (Bonaparte v. Bonaparte[9]). If the foreign court is fraudulently misled into believing the jurisdictional facts are such as to give it jurisdiction, when in truth they are not, this will be a ground for refusal of the domestic court to recognize the decree. (Cheshire’s Private International Law (8th ed.) at p. 372.) The distinction so made has not been free of criticism. (See Dicey & Morris, The Conflict of Laws, 7th ed. (1958), at p. 306, but see also the 8th ed. (1967), at p. 318 and the 9th ed. (1973), at

[Page 229]

p. 326.) Notwithstanding the doubts expressed, there would seem to be authority supporting such a distinction. Thus in Shaw v. Gould[10], where a Scottish divorce was in question, Lord Westbury said, at p. 81:

The first essential for the validity of a foreign decree is, that it should be pronounced by a Court of competent jurisdiction between parties bona fide subject to that jurisprudence…

In Bonaparte v. Bonaparte (supra) a fraud was perpetrated on the Scottish court by allowing it to act on the assumption that the pursuer was domiciled in Scotland and that there had been no collusion. It was held that the Scottish Court was without jurisdiction to pronounce a decree in this collusive suit and the decree pronounced was held to be null and void. The issue was one of want of jurisdiction but it was treated as one of fraud on the Court. It should be noted that “jurisdiction” in Bonaparte v. Bonaparte was used in a private international law sense rather than in what might be termed a “domestic competence” sense, but I do not think that serves to make the case inapplicable.

Another case frequently cited is Pemberton v. Hughes[11], in which Lindley M.R. said, at p. 790:

If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with which it is competent to deal, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against English views of substantial justice. Where no substantial justice, according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent—namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the Court had jurisdiction in this sense and to this extent, the Courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed.

There is no doubt that the Courts of this country will not enforce the decisions of foreign Courts which have no jurisdiction in the sense above explained, i.e., over the

[Page 230]

subject-matter or over the persons brought before them: Schibsby v. Westenholz, L.R. 6 Q.B. 155; Rousillon v. Rousillon, (1880), 14 Ch. D. 351; Price v. Dewhurst, (1838), 4 My. & Cr. 76; Buchanon v. Rucker, 9 East 192; Sirdar Gurdyal Singh v. Rajah of Faridkote (1894) A.C 670. But the jurisdiction which alone is important in these matters is the competence of the Court in an international sense, i.e., its territorial competence over the subject-matter and over the defendant, [emphasis added].

The decision in Bater v. Bater, supra, is sometimes cited as authority for the proposition that where a divorce has been granted by a foreign court a person who was not a party to the proceedings cannot have it declared inoperative by the Court of the forum even on the ground of fraud: Johnson, Conflicts of Laws, 2nd ed. (1962) at p. 400. The facts of the case, from the headnote were as follows. In 1880 a marriage was celebrated in England between two persons. In 1886 the husband commenced divorce proceedings against the wife for adultery with B, which failed upon proof of the husband’s adultery, and in 1889 he sailed for New York where he lived in adultery with another woman and acquired a domicile. The wife and B continued to live in adultery, and in 1890, the wife went to New York where she obtained a divorce on the ground of her husband’s adultery without disclosing her matrimonial misconduct in England. In 1893 she went through a marriage ceremony with B in New York. In 1903 B presented to the English Courts a petition for a declaration of nullity of the New York marriage on the ground that the wife, in withholding information which if disclosed would have barred her action, had obtained her divorce by fraud on the New York Court. The petition was dismissed. The English Court held that according to the law of the State of New York and of England, the New York Court had jurisdiction to decree a divorce, as the husband had acquired a domicile in New York, the adultery complained of by the wife was committed in that state; and the wife had elected to make the domicile of her husband her own for the purpose of the divorce proceedings and had acquired a “residence” there according to the law of New York. At trial, the President, Sir Gorell Barnes, whose judgment was confirmed on appeal, quoted from

[Page 231]

Harvey v. Farnie[12]:

The English Courts will recognize as valid the decision of a competent foreign Christian tribunal dissolving the marriage between a domiciled native in the country where such a tribunal has jurisdiction and an Englishwoman, when the decree of divorce is not impeached by any species of collusion or fraud.

and added “I think myself that that has become at the present time almost certain clear law…” On the question of fraud, the President said, at p. 218:

…Mr. Duke argued that in many of the judgments it has been said that the Courts will not recognize the decree of a foreign tribunal where it has been obtained by the collusion or fraud of the parties. But I think when those cases are examined that the collusion or fraud being referred to was in every case, so far as I have had time to examine the matter, collusion or fraud relating to that which went to the root of the matter, namely, the jurisdiction of the Court. In other words, as an illustration, case where the parties have gone to the foreign country and were not truly domiciled there, and represented that they were domiciled there and so had induced the Court to grant a decree. The collusion or fraud in those cases goes to the root of the jurisdiction. There is no jurisdiction if there is no domicile, and therefore collusion and fraud entered into many of those cases in a way that went to fortify the view that where there is no domicile there is no jurisdiction. But supposing that what was kept back was something that would have made the Court come to a different conclusion than it would otherwise have done, I can see no valid reason in the judgments in cases affecting status for treating the decree as a nullity, unless it is set aside. In this Court, there are many cases where facts are kept back. [emphasis added].

On appeal Collins M.R. spoke in these terms, at p. 228:

Upon that Mr. Duke was met by what the President considered afforded a complete answer, namely, that that is a judgment which, if not technically in rem, stands on the same footing as a judgment in rem. There is a good deal of authority to show that it is really indistinguishable from a judgment in rem. Some of the judges seem to have considered that for some reason it is not an absolute judgment in rem, but for all purposes it is on the same footing, that is to say, it is a judgment affecting the status of the parties. If it is a judgment in rem, or stands on the same footing, as I think it

[Page 232]

undoubtedly does, can it be impeached in proceedings taken in this country by a person not a party to that judgment at all? Can proceedings effectually be taken in this country while that judgment stands unimpeached in the country where it was made? There is clear authority in our Courts that that cannot be done, and I think it is the authority on which the President acted.

It seems tolerably clear from the quoted passage of the President’s judgment that he was drawing a distinction between collusion or fraud going to the root of the jurisdiction and collusion or fraud not going to jurisdiction. The case before him was one in the latter category and his remarks were directed to a situation other than that before us. Equally, the observations of Collins M.R. respecting the right of a third party to impeach a decree of divorce were concerned with a case in which the only fraud suggested was said to arise from the fact that the wife herself had been guilty of adultery which, Romer L.J. noted at p. 236, could not be said to go to the question of jurisdiction.

The next case which might be mentioned is the House of Lords decision in Salvesen v. Administrator of Austrian Property[13], where the contest between a Miss Salvesen and the Administrator of Austrian Property concerned the validity of a decree of nullity of marriage. The headnote reads in part:

Where therefore the parties are domiciled in a foreign country a decree of nullity of marriage pronounced by a competent Court of that country will, in the absence of fraud or collusion, be recognized as binding and conclusive by the Courts of England and Scotland, unless it offends against British notions of substantial justice.

I should like to quote a short passage from the judgment of Sachs J., as he then was, in the case of MacAlpine v. MacAlpine[14], which draws a distinction between those cases in which fraudulent evidence is adduced at trial and the other type of case in which “the fraud leads the foreign court to assume jurisdiction over the subject-matter of the

[Page 233]

suit, when but for that fraud it had none”. The passage is found at p. 42 of the report and reads as follows:

It has been clear ever since Bater v. Bater (orse. Lowe) (1906) P. 209 that where the foreign decree has been procured by fraudulent evidence at trial before a court of competent jurisdiction, the courts here will none the less treat the decree as valid as long as it subsists in that foreign country. It is equally clear that where the fraud leads the foreign court to assume jurisdiction over the subject-matter of the suit, when but for that fraud it had none, then the courts in this country will treat any resulting decree as a nullity: see Bonaparte v. Bonaparte (1892) P. 402; 8 T.L.R. 759, where all possible steps were taken by the petitioner to mislead the court in Scotland into holding that he was domiciled in that country.

The final English authority to which I would make reference is Middleton v. Middleton[15]. The facts bear more than a superficial resemblance to those in the case at bar. By his complaint in the Circuit Court of Illinois, and by the evidence he gave at the hearing, the husband alleged that he had been a resident in Illinois for over a year before the making of the complaint and that his wife had deserted him. Both of these allegations were false. The wife took no part in the proceedings but solicitors wrote on her behalf protesting against the husband’s allegations. The husband was granted a decree of divorce. The English trial judge, Cairns J., reviewed the relevant authorities and concluded that the Illinois decree was invalid for fraud going to the point of jurisdiction.

American authorities also make it clear that the State of domiciliary origin should not be bound by an unfounded recital of a jurisdictional fact in the record of another State exerting judicial authority. Mr. Justice Frankfurter in the Supreme Court of the United States made a finding to this effect in Williams v. North Carolina[16], where he confirmed the right, notwithstanding the Full Faith and Credit Clause of the Constitution, collaterally to impeach a decree of divorce made in another State, by proof that the Court had no jurisdiction, even when the record purported to show jurisdic-

[Page 234]

tion. Fraud was not an issue in the proceedings. In that case a man and a woman, domiciled in North Carolina, left their spouses in North Carolina, obtained a divorce in Nevada after six months residence in that State, married, and returned to North Carolina to live. They pleaded the Nevada divorce decree in defence to a charge of bigamy, but were convicted. It was held that the decree of divorce was conclusive adjudication of everything except the jurisdictional facts upon which it was founded. The domiciliary State had the right to ascertain the truth of that crucial fact when called into question.

The aim of the Courts, in refusing recognition because of fraud, is to prevent abuse of the judicial process. I will not deal with the courts’ competence to look into fraud going to the merits, as that is not an issue here. In inquiring into fraud which touches the domestic jurisdiction of the decree-granting Court, the courts are enforcing the public policy of the forum.

The grounds upon which a decree of divorce granted by one State can be impeached in another state are, properly, few in number. The weight of authority seems to recognize, however, that if the granting state takes jurisdiction on the basis of facts which, if the truth were known, would not give it jurisdiction the decree may be set aside. Fraud going to the merits may be just as distasteful as fraud going to jurisdiction, but for reasons of comity and practical difficulties, in the past we have refused to inquire into the former. Even within the limited area of what might be termed jurisdictional fraud there should be great reluctance to make a finding of fraud for obvious reasons. In the case at bar the trial judge made a positive finding and undoubtedly there was evidence upon which he could make that finding. The judge came to a clear conclusion. The Court of Appeal, in reversing him, spoke in terms of proper inferences but did not question the factual underpinning of the trial judgment. I do not think this Court should assume the role of a trier of fact. In

[Page 235]

the absence of support for the view that the trial judge misapprehended the evidence or misapplied applicable legal principles, I think this Court should respect his findings. I would accordingly allow the appeal with costs.

VI

The respondent sought leave in the event of the appeal being allowed, to deliver a counterclaim, pursuant to s. 1 of the Matrimonial Causes Act, R.S.O. 1970, c. 265, asking for maintenance in the sum of $60 per week or in an amount set by this Court. It is the appellant’s contention that the respondent cannot claim such corollary relief, as s. 1 applies only to divorce actions and actions to declare the nullity of voidable marriages. The marriage here, invalid on the grounds of bigamy and void rather than voidable, is, in the submission of the appellant, beyond the scope of the legislation.

Section 1 of the Matrimonial Causes Act reads as follows:

1. In any action for divorce or to declare the nullity of any marriage, the court may order that the husband shall secure to the wife, unless she has been guilty of adultery, such gross sum of money or annual sum of money for any term, not exceeding her life, as, having regard to her fortune, if any, and to the ability of the husband and to the conduct of the parties, may be considered reasonable and may suspend the pronouncement of the judgment absolute until all necessary deeds and instruments have been executed.

The appellant argues that a void marriage, being a nullity ab initio, need not be the subject of an action to declare the nullity of the marriage. Furthermore, words such as “marriage”, “husband”, and “wife” in the statute imply that a marriage existed at some time, yet in void marriages there is no status of “husband” or “wife” created. I cannot agree with these contentions, for they are contrary to both the language and the spirit of the Act. The section speaks of “any” action to declare a marriage a nullity, with no restriction to voidable marriages. The use of the words “husband” and

[Page 236]

“wife” is reasonable, for the parties to a non-existent marriage appear de facto to be a husband and wife despite their de jure status. Nor can I see reason to accord different financial relief in voidable, as opposed to void, marriages. Although a party to a voidable marriage is a husband or wife in law until the marriage is declared to be a nullity, after such a declaration he or she ceases to have that marital status retroactively and assumes the same status as the participant in a void marriage.

The legislative policy underlying the Act reinforces the wording of the statute. At common law the courts could not order maintenance to the “wife” in voidable or void marriages. This was changed in England by the Matrimonial Causes Act, 1907, which is phrased in terms similar to the Ontario legislation and which grounded an action for maintenance in a void marriage (See Ramsay v. Ramsay[17]). At common law, interim alimony could be ordered in a nullity action. The underlying policy was well expressed by MacDonnell, J.A. in Barnet v. Barnet[18], at p. 353.

Whatever may be de jure the position of the plaintiff, she admittedly had de facto the status of the wife, resulting not from some frivolous association nor from what is popularly called “common law marriage” but from years of cohabitation following an apparently regular form of marriage.

The Matrimonial Causes Act gives extended recognition to this de facto status. Whether or not it is fully consistent with the partnership concept of marriage evolving today that imports equal duties of maintenance on both spouses, the legislation is consistent with traditional maintenance principles. A husband was expected to provide financial support to a wife in return for companionship and service. It is not unreasonable to extend this principle to a marriage that is a nullity. The putative wife has normally provided services and companionship over a period of time and the “husband” is being asked, in an appropriate case, to contribute to the economic support of the

[Page 237]

woman after the relationship ends to compensate her for economic opportunities foregone.

While s. 1 of the Act allows the respondent to seek maintenance, I would not deal with her application on the merits. The respondent, in claiming maintenance, seeks to adduce facts that were not produced in evidence at trial and do not form part of the record. Although this Court has the power to hear new evidence pursuant to s. 67 of the Supreme Court Act, the respondent did not seek leave to adduce new evidence nor did she demonstrate special grounds for doing so, as required by s. 67. Therefore, I would refer the matter back to the Ontario Supreme Court for a decision on the merits.

VII

In the result I would allow the appeal, set aside the judgment of the Court of Appeal for Ontario, and reinstate the judgment at trial with costs in all courts. I would also allow the respondent to deliver a counterclaim for maintenance and refer that matter to the Supreme Court of Ontario for a decision on the merits.

JUDSON J. (dissenting)—I would dismiss this appeal and adopt the reasons delivered by the Court of Appeal[19] for its reversal of the judgment at trial.

Appeal allowed, judgment at trial reinstated with costs in all courts, JUDSON J. dissenting.

Solicitors for the appellant: Gent & Park, London.

Solicitors for the respondent: Lerner & Associates, London.