Supreme Court Judgments

Supreme Court of Canada

Downton v. Royal Trust Co. et al., [1973] S.C.R. 437

Date: 1972-12-22

Marion Downton (Plaintiff) Appellant;

and

The Royal Trust Company, Executor of the Last Will and Testament of Raymond A. Downton, Deceased, and Lorraine Nada Downton (Defendants) Respondents.

1972: November 17, 21; 1972: December 22.

Present: Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE SUPREME COURT OF NEWFOUNDLAND ON APPEAL

Conflict of laws—Invalid foreign divorce—Preclusion doctrine—Appellant wife submitting to foreign Court to protect existing benefits under separation agreement—Whether appellant precluded from asserting status as lawful widow to claim statutory relief, in modification of husband’s will, out of estate—The Family Relief Act, 1962 (Nfld.), No. 56.

The appellant and the deceased were married, each for the first time, on January 24, 1948, in St. John’s, Newfoundland. They separated in the early part of 1960, and a separation agreement was executed by them under date of May 28, 1960, under which they agreed to live apart and the deceased agreed to pay his wife monthly the sum of $350 for the support of herself and their two daughters.

In April 1965, the deceased went to Nevada to obtain a divorce. His Nevada lawyer wrote to the wife to advise her of her husband’s intention to seek a divorce on the ground of more than three years’ separation and asked her to sign an enclosed power of attorney to authorize an appearance on her behalf in the divorce action. The power of attorney specified that the terms of the separation agreement were to be incorporated in the divorce decree on the approval of the Court. The wife signed the power of attorney but conditioned it further on the incorporation into the divorce decree of the husband’s obligation to pay the wife $2,800 (in addition to the monthly maintenance) as being a sum owing to her under a note which he signed in her favour of even date with the separation agreement.

The divorce, granted on May 27, 1965, recited the appearance of the appellant through a named attorney who adduced no evidence, and the decree confirmed the separation agreement and directed compliance

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with the terms of the $2,800 note. On the very day of the divorce, the deceased married his second wife in Nevada, and they returned to Newfoundland.

Under the terms of his will, the deceased left his net estate to the second wife, save as to two legacies of $6,000 each, one to each of his two daughters by his lawful wife. Upon the deceased’s death, the appellant applied to the Supreme Court of Newfoundland on behalf of herself and her daughters for relief pursuant to the provisions of The Family Relief Act, 1962 (Nfld.), No. 56.

The trial judge ordered that the appellant receive the sum of $20,000 from the estate. This order was set aside by the Supreme Court of Newfoundland on Appeal and the appellant then appealed to this Court.

Held: The appeal should be allowed and the order of the trial judge restored.

The controlling issue in this case was not the status of the applicant as the deceased’s lawful widow but whether she was precluded from asserting that status. In typical cases in Canada a preclusion doctrine has been applied against a spouse who, having obtained a decree of divorce or nullity from a foreign court incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary advantage, on a relationship which that person has previously deliberately sought to terminate. The ethical basis is lost, however, where there has been both invocation and submission to the foreign jurisdiction by the respective spouses; and if there is to be a modification or rejection of the preclusion doctrine in respect of one or both of the spouses, other considerations must be brought into account; there may be, for example, an alleviating explanation for the submission to the jurisdiction of an incompetent foreign court.

In the present case, the lawful wife submitted to the foreign court to protect her existing benefits which were given as a result of her separation from her husband in Newfoundland. Her submission was, accordingly, a special one and could have no effect against her in Newfoundland in enforcing the separation terms, since she would not have to rely there

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upon the foreign decree in order to enforce them. This was not a case where the appellant’s maintenance benefits rested on the foreign divorce decree alone and where she had taken those benefits until the deceased’s death, and then sought to assert that she was the lawful wife in order to gain additional benefits.

Re Capon, [1965] 2 O.R. 83; In re Graham Estate, [1937] 3 W.W.R. 413; Re Plummer Estate, [1941] 3 W.W.R. 788; Re Jones (1960), 25 D.L.R. (2d) 595; Re Tucker (1953), 8 W.W.R. (N.S.) 184; Burnfield v. Burnfield, [1926] 1 W.W.R. 657; Stevens v. Fisk (1885), Cameron Sup. Ct. Cas. 392; Re Lesser and Lesser, [1968] 1 O.R. 388, reversed [1968] 1 O.R. 693n; Le Mesurier v. Le Mesurier, [1895] A.C. 517; Fife v. Fife (1964), 50 W.W.R. 591; Swaizie v. Swaizie (1899), 31 O.R. 324; Burpee v. Burpee. [1929] 2 W.W.R. 128; In re Williams and Ancient Order of United Workmen (1907), 14 D.L.R. 482; Schwebel v. Schwebel, [1970] 2 O.R. 354, referred to; Stephens v. Falchi, [1938] S.C.R. 354, distinguished.

APPEAL from a judgment of the Supreme Court of Newfoundland on Appeal, allowing an appeal from a judgment of Furlong C.J. Appeal allowed.

W.G. Burke-Robertson, Q.C., for the plaintiff, appellant.

B.A. Crane, for the defendant, respondent, L.N. Downton.

The judgment of the Court was delivered by

LASKIN J.—This case originated in an application by the lawful widow of the deceased, Raymond A. Downton, for an order under The Family Relief Act, 1962 (Nfld.), No. 56, for adequate provision out of his estate for proper maintenance and support for her and her two children. The defendants to the application were the corporate executor under the deceased’s will and a lady to whom, for convenience, I shall refer as the second wife. This was the designation used by the deceased in his will, dated September 10, 1968, under which he left his net estate to the second wife, save as to two legacies of $6,000 each, one to each of his two daughters by his lawful wife. The corporate

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executor has maintained a neutral position in this litigation and was not represented in this Court.

The deceased’s estate of some $166,000 included insurance policies of some $81,000 of which the second wife was the beneficiary, and these were charged with liabilities of some $17,000. In net terms, it appears that the second wife was entitled, upon the deceased’s death, to about $64,000 under policies of insurance on his life and to some $60,000 under his will. Furlong C.J., who heard the application under The Family Relief Act, made an order for payment of $20,000 to the applicant. His order referred only to the applicant and did not embrace her two children. I note here that the second wife had a child by the deceased and this child survived him but was not included in the benefits under his will, save in an event (the death of her mother within 30 days after the deceased’s death) which did not occur.

The Supreme Court of Newfoundland on Appeal set aside the order of Furlong C.J. and dismissed the application for reasons to which I will refer later, and, of course, dismissed a cross-appeal by which the applicant sought to have the deceased’s entire estate (apart from the proceeds of the insurance policies). In her appeal to this Court, the applicant appellant renewed her claim to the entire estate. Counsel for the respondent second wife submitted that if the appeal should be allowed, the proper order would be restoration of the award of the trial judge.

The controlling issue in this case is not the status of the applicant as the deceased’s lawful widow but rather whether, on the facts to be narrated, she is precluded from asserting that status to claim statutory relief, in modification of the deceased’s will, out of his estate. The relevant provisions of The Family Relief Act are the following:

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2. In this Act

(c) “dependant” means the widow, widower or child of the deceased.

3. (1) Where a person

(a) dies testate without having made in his will adequate provision for the proper maintenance and support of his dependants or any of them, or

(b) dies intestate and the share under The Intestate Succession Act of the intestate’s dependants or any of them in the estate is inadequate for their or his proper maintenance and support

a judge, on application by or on behalf of those dependants or any of them, may in his discretion and taking into consideration all relevant circumstances of the case, notwithstanding the provisions of the will or The Intestate Succession Act, order that such provision as he deems adequate shall be made out of the estate of the deceased for the proper maintenance and support of the dependants or any of them.

5. (1) Upon the hearing of an application made by or on behalf of a dependant under subsection (1) of Section 3, the judge shall inquire into and consider all matters that should be fairly taken into account in deciding upon the application, including without limiting the generality of the foregoing

(a) whether the character or conduct of the dependant is such as should disentitle him to the benefit of an order under this Act;

(b) whether the dependant is likely to become possessed of or entitled to any other provision for his maintenance and support;

(c) the relations of the dependant and the deceased;

(d) the financial circumstances of the dependant;

(e) the claims which any other dependant has upon the estate;

(f) any provision which the deceased while living has made for the dependant and for any other dependant;

(g) any services rendered by the dependant to the deceased;

(h) any sum of money or any property provided by the dependant for the deceased for the purpose of providing a home or assisting in any business or

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occupation or for maintenance or medical or hospital expenses.

The appellant and the deceased were married, each for the first time, on January 24, 1948, in St. John’s, Newfoundland and the husband carried on the practice of dentistry there. They separated in the early part of 1960, and a separation agreement was executed by them under date of May 28, 1960, under which they agreed to live apart and the deceased agreed to pay his wife monthly the sum of $350 for the support of herself and their two daughters. The agreement did not purport to bind the deceased’s estate nor did it specify any terminal date for the monthly payments. Save for a reduction in the monthly payments by $100 for the fourteen months preceding his death on November 21, 1969, the deceased honoured the separation agreement.

In April 1965, the deceased went to Nevada in order to obtain a divorce from his wife, and he resided there for the qualifying period prescribed by state law. His Nevada lawyer wrote to the wife to advise her of her husband’s intention to seek a divorce on the ground of more than three years’ separation and asked her to sign an enclosed power of attorney to authorize an appearance on her behalf in the divorce action. The power of attorney specified that the terms of the separation agreement were to be incorporated in the divorce decree on the approval of the Court. On advice of a local solicitor, the wife signed the power of attorney but conditioned it further on the incorporation into the divorce decree of the husband’s obligation to pay the wife $2,800 (in addition to the monthly maintenance) as being a sum owing to her under a note which he signed in her favour of even date with the separation agreement.

The divorce, granted on May 27, 1965, recited the appearance of the appellant through a named attorney who adduced no evidence, and the decree confirmed the separation agreement and directed compliance with the terms of the $2,800 note, which called for payment five years after its date of execution, that is the day

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following the decree. It was not indicated to this Court that the obligation was not satisfied. On the very day of the divorce, the deceased married his second wife in Nevada, and they returned to Newfoundland where he resumed his professional practice. The second wife had been previously married, but her first husband obtained a divorce from a court of competent jurisdiction about a year and a half before she married the deceased.

Following receipt of a copy of the divorce decree by the appellant, her solicitor sought the opinion of the deceased’s Nevada lawyer as to whether the divorce would be recognized in Newfoundland. The latter replied that since an appearance was entered, the divorce would be recognized in other States of the United States and he added “I would expect in Canada and other countries as well”. It is not disputed that in law the divorce decree was without effect in Newfoundland where the spouses were domiciled at the time it was sought and granted and where the deceased remained domiciled until his death.

Although agreeing with counsel for the second wife that the applicant appellant was bound, equally with her husband at the time, by the Nevada decree because of her submission to the Court and the benefits which she sought therefrom and that, accordingly, she could not impugn the jurisdiction of the Nevada Court to decree the divorce, the trial judge was of the opinion that since he was seized of a statutory application and invested with the wide powers conferred by s. 5 of the The Family Relief Act, he was entitled to raise and to determine himself the validity of the Nevada divorce and the consequent right of the appellant to dependant status under the Act. In the result, he concluded that the Nevada divorce was without force and that, accordingly, the appellant was within the Act. The Newfoundland Supreme Court on Appeal rejected this approach and founded itself on the view that the appellant, by accepting the jurisdiction of the Nevada Court and having her separation agreement rights and the

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obligation on the note incorporated in the decree, was precluded from denying the effect of the decree. Hence, not being able to assert that she was the deceased’s widow, she could not qualify as a dependant under the Act. This is a conclusion which I do not share.

The Court on Appeal relied heavily on the reasons of Schroeder J.A. for the Ontario Court of Appeal in Re Capon[1]. That was a case where a woman, who had obtained a foreign decree of nullity of her marriage to an incompetent and married another man, sought a distributive share in his estate as on an intestacy by alleging that a will which he had made before the marriage was revoked by the marriage. Although the learned judge concluded that the foreign decree was entitled to recognition in Ontario and that, accordingly, the claimant had no status as widow, he went on to consider her position on the supposition that the foreign decree was without force in the Province. There is an extensive canvass of the authorities, in recognition of the divided decisions that have appeared in this branch of the law, followed by a determination that a person who has invoked the jurisdiction of a foreign court to alter his or her marital status cannot be heard to say that the status has remained unaltered because of the invalidity of the foreign decree, where he or she seeks to rely on it in order to claim benefits out of the estate of a deceased spouse. It would be “a parody of justice”, according to Schroeder J.A., if this were permitted.

The situation dealt with in Re Capon is the most obvious of those in which courts have been moved to refuse to permit an invalid divorce or nullity decree to be challenged by the very person who obtained it. Other such cases are In re Graham Estate[2], where the wife who

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had obtained the invalid divorce decree had also remarried and where the Court also denied the claim of a second wife to a distributive share of a deceased’s estate on intestacy, not because the deceased had divorced her but because of the invalidity of the first wife’s divorce decree; Re Plummer Estate[3], where, however, there was a dissent on the simple ground that a wife by obtaining an invalid divorce decree did not, without more, lose her status as wife and her statutory right to share in her husband’s estate on an intestacy; Re Jones[4], where the wife who had obtained the invalid divorce decree did so at the instance of her husband who entered an appearance in the proceeding but where she remarried thereafter.

The foregoing are all cases in which status as wife or husband was a condition of asserting a statutory claim against the estate of the other; and the position of the Newfoundland Supreme Court on Appeal was that there is no difference in respect of such claims between a spouse who invokes the foreign jurisdiction and one who submits to it. I do not think the matter is so easily resolved in the present case.

The frame of the proceeding and, indeed, the parties thereto, where marriage status must be established, are important elements in the application of the preclusion doctrine. For example, in a prosecution for bigamy, the status of the spouses according to the applicable law is what must concern the Court: see Re Tucker[5]. Again, in Burnfiel v. Burnfiel[6], the Saskatchewan Court of Appeal, albeit for differing reasons, refused (reversing the trial judge who had acted on the preclusion doctrine) to revoke letters of administration of a deceased’s estate issued to his wife who had obtained an invalid foreign divorce. The revocation had been sought by a person adopted by the deceased under an unrecognized foreign order and hence he had no interest. Burnfiel v. Burnfiel has been often cited

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for the opinion therein of Lamont J.A. who appeared to reject the preclusion doctrine in stating that the invalid foreign divorce decree did not destroy the married status of the spouses. But it is clear that he was only concerned with whether the wife was entitled to administer her deceased husband’s estate notwithstanding that she had procured the foreign divorce. It appeared, moreover, that no one else had any claim to administration. The ultimate disposition of the estate was not determined in the particular proceedings.

This Court touched the matter under discussion in two decisions. In Stevens v. Fisk[7] the litigation was between parties who were natural-born American citizens who had married in New York where they were then domiciled and who subsequently came to Quebec. The wife had turned her considerable estate over to her husband to manage on her behalf. She left him and returned to New York where she obtained a divorce in proceedings in which her husband appeared by attorney after being served with process in Montreal. On being sued in Quebec for an accounting of his wife’s property the defendant husband contended that the divorce was invalid in Quebec and that the plaintiff, being his lawful wife there, could not sue without judicial authorization as provided by Quebec law. Although a majority of the Court expressed the view that the defendant, having submitted to the jurisdiction of the New York Court, could not question the validity of the decree, a differently constituted majority was of opinion that the foreign divorce was valid, and that the erstwhile wife had in Quebec the capacity of a feme sole which she had in New York. Indeed, Fournier J. took the point that apart from the issue of the divorce, the plaintiff as a foreign national could sue in Quebec without authorization when she had that capacity in her own country. The overriding consideration in this case, in my opinion, is the fact that the plaintiff was seeking an accounting of her own

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property and not any benefit or advantage based upon the validity of the foreign divorce decree.

A similar question arose in the recent Ontario case of Re Lesser and Lesser[8], reversed on consent[9]. There, a husband who had obtained an invalid foreign divorce and had remarried sought to invoke the Ontario Married Women’s Property Act against his wife to establish his ownership of certain goods. Re Capon, supra, was invoked against him successfully at first instance, but on appeal, by consent, an issue was directed to determine the respective rights of the parties in the personal property. It appears to me to be plainly right that the husband should be allowed, despite his resort to an incompetent foreign jurisdiction, to seek to protect an existing property right through the summary procedure of the Act and to assert his lawful status in that connection.

The second case in this Court was Stephens v. Falchi[10], where Duff C.J.C. speaking for the plurality of the Court treated Stevens v. Fisk as overborne on the divorce point by Le Mesurier v. Le Mesurier[11] and succeeding cases based upon it, in so far as Stevens v. Fisk turned on recognition of the foreign divorce as between the spouses because there was an appearance by the respondent in the foreign action instituted by the appellant or because there was a purported consent to the exercise of the foreign jurisdiction. In Stephens v. Falchi itself, the Court was concerned with a claim by a putative husband to a share in the estate of a woman to whom he was not legally married (according to the governing law of Quebec) because her first marriage was dissolved by an invalid foreign divorce decree, albeit in proceedings in which her first husband appeared. Her executor contested the claim, but since the marriage was contracted by the claimant in good faith and had civil effects in respect of property as a putative

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marriage (both under Quebec law and under Italian law according to which the deceased and the claimant agreed to order their matrimonial relations), the executor’s reliance on the invalidity of the divorce decree was held to be of no avail.

The present case, unlike Stephens v. Falchi, does not concern the position of third parties against whom the invalidity of a foreign divorce is urged by the spouse who obtained it or by the estate of such spouse. I, therefore, draw no general conclusion from Stephens v. Falchi as to the operation of the preclusion doctrine; nor need I say anything here about the effect of Stephens v. Falchi upon In re Graham Estate, supra, which as to one of the points decided therein, namely, that an invalid foreign divorce decree could properly be set up by the estate of the spouse who procured it against the claim of his second “wife” to a distributive share in his estate, seems to be at variance with Stephens v. Falchi. I note only that there was no mention of legislation in British Columbia like that in Quebec giving certain civil effects to an invalid marriage. Fife v. Fife[12] is similar to In re Graham Estate on the point just mentioned, because there too a person who had obtained an invalid foreign divorce from his wife was allowed to set up its invalidity against the woman whom he married on the date he was divorced and who later claimed against him under the Saskatchewan Deserted Wives’ and Children’s Maintenance Act. Bence C.J.Q.B. dealt with the matter as one of estoppel and found that the second “wife” was as fully aware of the true situation as was the husband.

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In Re Capon, supra, Schroeder J.A. took Swaizie v. Swaizie[13], reversing 31 O.R. 81, as the founding decision for the preclusion doctrine which he there applied. That case concerned an action by a wife on a foreign judgment for a money award in lieu of alimony, which she recovered on a counterclaim in foreign divorce proceedings by her husband in which he was successful. Although the trial judge dismissed the action on his view that the foreign Court was without jurisdiction to make the money award, which was based on a consideration of the husband’s estate in Ontario, the Divisional Court gave her relief. It did so on two grounds, the primary one being that the husband was precluded from disputing the jurisdiction of the foreign Court, and the second being that it was not shown that the foreign Court had no jurisdiction. Since the wife had also invoked the foreign jurisdiction, grounding her right of recovery on preclusion of the husband is illogical. The better rationale would be to deny to either party, in litigation between them, any benefit from the judgment in their contested proceedings in an incompetent foreign Court. I contrast Burpee v. Burpee[14], where a wife who did not oppose her husband’s successful petition for divorce in a foreign Court, was allowed to sue on a money award to her made by that Court as ancillary to the divorce decree; the husband was held to be precluded from disputing the foreign Court’s decision. In any event, the wife’s right of recovery in Swaizie v. Swaizie has better support on the alternative ground taken by the Division Court.

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On the other hand, In re Williams and Ancient Order of United Workmen[15] is on a par with Re Capon in the denial of a wife’s claim to a life insurance benefit on her husband’s death where she had obtained an invalid divorce in a foreign jurisdiction. He had in fact remarried and had named his second wife as beneficiary but this was not a consideration in the rejection of the lawful wife’s claim.

My canvass of typical cases which have reached Canadian courts indicates that the only claim to consistency that they exhibit is the application of a preclusion doctrine against a spouse who, having obtained a decree of divorce or nullity from a foreign court incompetent to give it, seeks thereafter to assert that incompetence in order to gain a pecuniary advantage against his or her spouse or the estate of the spouse. The doctrine has an ethical basis: a refusal to permit a person to insist, to his or her pecuniary advantage, on a relationship which that person has previously deliberately sought to terminate. The ethical basis is lost, however, where there has been both invocation and submission to the foreign jurisdiction by the respective spouses; and if there is to be a modification or rejection of the preclusion doctrine in respect of one or both of the spouses, other considerations must be brought into account; there may be, for example, an alleviating explanation for the submission to the jurisdiction of an incompetent foreign court. So too, where third parties are involved in a case where a spouse who has obtained an invalid foreign divorce or decree of nullity seeks to rely on its invalidity.

Any ethical factors underlying the preclusion doctrine are submerged in overriding considera-

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tions when an invalid foreign decree is pressed in a strictly matrimonial cause in which divorce or nullity is sought. Marital status per se cannot be altered or perpetuated by a preclusion doctrine, and hence, as in Schwebel v. Schwebel[16], a spouse should not be denied the right to seek a divorce before a competent court merely because that spouse earlier invoked the jurisdiction of an incompetent foreign court.

This result appears to me to be consonant with a public policy which today more than before recognizes that parties whose marriage has failed should be allowed to dissolve it. I see no inconsistency between this position and the application of a preclusion doctrine against a spouse who has ignored the jurisdictional requirements for a valid dissolution and who would none the less insist to his or her own pecuniary advantage that the law be applied strictly in his or her favour in disregard of an attempted dissolution which is invalid.

The American Law Institute, Restatement of the Law, Second, Conflict of Laws, 2d (1971), has recognized the difficulty of formulating precise rules by adopting in this area of the law a broad and flexible approach which commends itself to me. Section 74 reads as follows:

A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so.

In the succeeding comment on the scope of this rule, there are the following passages:

The rule is not limited to situations of what might be termed “true estoppel” where one party induces another to rely to his damage upon certain representations as to the facts of the case. The rule may be applied whenever, under all the circumstances, it would be inequitable to permit a particular person to

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challenge the validity of a divorce decree. Such inequity may exist when action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is inconsistent with the earlier conduct of the attacking party.

The rule’s scope of application varies from state to state and, even within the confines of a single state, is often clouded with uncertainty. In general, it may be said that a person who obtains a divorce and then remarries will not be permitted to attack the validity of the divorce in order to free himself from his obligations to his second spouse or in order to claim an inheritance from the estate of the first spouse. On the other hand, if both parties to a divorce attack its validity in a subsequent action, neither should be estopped from making such an attack since neither is placing reliance upon the validity of the divorce. An example is where after a husband has obtained an ex parte divorce, the wife brings an action against him for separation and support, and the husband in turn seeks to counterclaim for divorce. He should be permitted to do so. The wife is attacking the validity of the divorce in her action for separation, and there is no reason under the circumstances why the husband should not be allowed to do the same.

A spouse who has accepted benefits under the divorce will usually be held estopped to attack it. So an invalid ex parte divorce obtained by a husband will be held immune from attack by a wife who has remarried. Usually, such a divorce will also be held immune from attack by a wife who has accepted alimony under the original decree or who has waited an unreasonably long time before attacking the divorce, particularly if the husband has remarried in the meantime.

The cases are divided on the question whether third persons may be estopped from attacking a divorce decree. Such an estoppel has at times been imposed upon one who persuades a woman to seek a divorce in order that he may marry her, particularly if he finances the divorce and provides a lawyer. Likewise, a person may be estopped from attacking a divorce if his claim is derived from a person who would have been estopped.

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In the present case, I am satisfied that the lawful wife submitted to the foreign court as she did to protect her existing benefits which were given as a result of her separation from her husband in Newfoundland. Her submission was, accordingly, a special one and could have no effect against her in Newfoundland in enforcing the separation terms, since she would not have to rely there upon the foreign decree in order to enforce them. This is not a case where the appellant’s maintenance benefits rested on the foreign divorce decree alone and where she had taken those benefits until the deceased’s death, and then sought to assert that she was the lawful wife in order to gain additional benefits.

There is no express finding that the maintenance provisions of the separation agreement continued after the husband’s death. The trial judge appears to have regarded this obligation as terminating on death, although it was incorporated in the foreign divorce decree, which in his opinion could not alter the wife’s marital status. At any rate, I take his award of $20,000 to the wife out of the deceased’s estate as being the only benefit to which she should be entitled and, in that respect, superseding any obligation under the separation agreement, save as to arrears up to the time of the husband’s death.

The present case stands, therefore, as one where the wife’s formal submission to the foreign Court was not followed by any act or conduct in reliance upon it nor was there any acceptance by her of benefits under it. The Court on Appeal stated in its reasons that she “in subsequent years, relying on that decree, held herself out to have been, and must be presumed to have wished to be considered as having been divorced from, and therefore no longer the wife of Dr. Downton”. Counsel for the respondent was unable to support this assertion before this Court. There was certainly no affirmative evidence to support it; there is only the fact of a previous separation and the fact

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that Dr. Downton brought a second wife back with him after the foreign divorce. I am unable to agree, therefore, that the appellant is precluded from denying the validity of the foreign divorce decree in Newfoundland and from insisting on her status as the lawful widow of the deceased.

I do not think there are any countervailing considerations so far as the respondent second wife is concerned. Of course, her main concern is to support the provisions of the deceased’s will, but if she would deny status to the appellant under The Family Relief Act she must assert the validity of a foreign divorce decree which by Newfoundland law is invalid, unless the appellant is herself precluded from asserting its invalidity. I do not pass upon the propriety of that position if the second wife was claiming against the deceased’s estate. She is here, however, claiming through him, and her position, in view of the immediacy of the deceased’s remarriage following the foreign decree, is not that of an innocent third party induced or betrayed by any conduct of the applicant herein to enter into the second marriage. Her position can be no better than would be that of her putative husband if, in his lifetime, he had resisted a suit by his lawful wife on the ground that the foreign divorce decree was valid. She too came from Newfoundland where she was first married, and the inference from the record is that she either was in Newfoundland at the time her first husband obtained his divorce or returned to that Province thereafter.

The Newfoundland Supreme Court on Appeal set aside the judgment at first instance on the alternative ground that even assuming that the appellant could assert her status as a dependant under The Family Relief Act, “it (was) impossible to say that her conduct was not such as would disentitle her to… an order”. The Act makes it clear that, given dependant status, the judge hearing an application for relief thereunder is charged to make certain inquiries which may result in either no award or in a modest

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one. The Newfoundland Supreme Court on Appeal was obviously purporting to act under s. 5(1)(a) of the Act in denying any relief to the appellant. However, there was no evidence of any misconduct on her part, matrimonial or other; and, in fact, what was relied upon to disentitle her to any award under s. 5 of The Family Relief Act were the very things which were invoked to preclude her from denying the validity of the foreign divorce. In my opinion, there was no basis in these matters for denying recourse to the Act and favourable consideration for an order thereunder.

In the result, I would allow the appeal and restore the order of Furlong C.J. The appellant should have her costs of this Appeal and of the appeal to the Newfoundland Supreme Court on Appeal out of the estate.

Appeal allowed with costs.

Solicitors for the plaintiff, appellant: Stirling, Ryan, Goodridge, Caule, Gushue & Goodridge, St. John’s.

Solicitors for the defendant, respondent, The Royal Trust Company: Bartlett & Strong, St. John’s.

Solicitors for the defendant, respondent, Lorraine Nada Downton: Halley, Hickman, Hunt, Adams, Steele, Carter, O ‘Regan and Martin, St. John’s.