Jackson v. Jackson, [1973] SCR 205

Supreme Court of Canada

Jackson v. Jackson, [1973] S.C.R. 205

Date: 1972-10-18

Maureen Mary Jackson Appellant;

and

Walter Jackson Respondent.

1972: May 23, 24; 1972: October 18.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Divorce—Whether s. 22(3) of Divorce Act, R.S.C. 1970, c.D-8, has effect of making provisions in relation to maintenance payments applicable in case where divorce previously granted under provincial statute—Whether jurisdiction extends to making of order in relation to child who has attained majority within meaning of Age of Majority Act, 1970 (B.C.), c.2—Whether child “unable… to provide himself with necessaries of life” when inability

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occasioned by necessity of attending school or college.

The appellant and respondent were divorced by a decree of the Supreme Court of British Columbia in June 1965 under the terms of which the custody of the children of the marriage, i.e., two boys and one girl, was awarded to the respondent, but by 1971 all the children had gone to live with their mother and an order was granted under the purported authority of s. 11 of the Divorce Act, R.S.C. 1970, c.D-8 (originally enacted by 1967 (Can.), c.24), by which the original decree was varied so as to give custody of the two boys to the mother and an order that she be paid maintenance for them as well as for the girl for whom no order as to custody was made.

The respondent paid maintenance for the daughter until she became 19 years of age but then took the position that as she had reached her majority by virtue of the provisions of the Age of Majority Act, 1970 (B.C.), c. 2, he was no longer liable to pay for her maintenance. Faced with this decision, the wife applied under s.11 of the Divorce Act for an order requiring the husband to continue maintenance payments for the daughter for a period of eight months until she completed her “teacher assistant” training course.

The trial judge refused to order the maintenance for the daughter continued (on preliminary objection being taken and without hearing the merits) on the ground that he had no jurisdiction “under the Divorce Act to order maintenance for an adult child, and that the daughter became such an adult in this Province on attaining the age of 19 years.” An appeal to the Court of Appeal was dismissed. Leave to appeal from the judgment of the Court of Appeal was granted by this Court.

Held: The appeal should be allowed and the matter remitted to the Court of first instance to be determined in the light of the circumstances of all the evidence.

On the question of whether or not s.22(3) of the Divorce Act has the effect of making the provisions in relation to maintenance payments by a divorced husband (s.11) applicable in a case where the divorce was granted under the Divorce and Matrimonial Causes Act, R.S.B.C. 1960, c.118, in 1965,

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the Court held that the power to grant an order for the maintenance of the children of the marriage is necessarily ancillary to jurisdiction in divorce and that the Parliament of Canada was therefore acting within the legislative competency conferred upon it by the B.N.A. Act, 1867, s. 91(26), in legislating to this end.

As to the further question whether that jurisdiction extends to the making of an order in relation to one of “the children of the marriage” who has attained her majority within the meaning of the Age of Majority Act, 1970 (B.C.), c. 2, the meaning of the word “child” was not the common law meaning but the meaning assigned to it by s. 2 of the Divorce Act which is limited to defining “child of a husband and wife” and includes any person to whom the husband and wife or either of them stands “in loco parentis”. In the context of the Divorce Act as a whole it is apparent that the purpose and effect of the definitions of “child” and “children of the marriage” contained in s.2 is confined to the interpretation of the corollary relief provisions of the Act, (ss.10 and 11) and particularly to the meaning of “the children of the marriage” as used in those sections, so that it is unquestionably used as correlative to parent and in this sense, except as otherwise provided, it is not bound by any age barriers.

The period during which such children may be entitled to maintenance under the Divorce Act is in no way related to their attaining the age of majority (whether 18 or 21 years), but on the contrary, it terminates at the age of 16 unless a child over that age is “unable, by reason of illness, disability or other cause, to withdraw himself from their [his parents’] charge or to provide himself with necessaries of life”.

On the question whether a child can be said to be “unable, by reason of illness, disability or other cause” within the meaning of s.2(b) when the inability is occasioned by the necessity of attending school or college for the purpose of completing such education as is necessary to equip the child for life in the future, the Court agreed with the opinion expressed in Tapson v. Tapson, [1970] 1 O.R. 521, that the Divorce Act should not be given, in any of its provisions, a constricted construction. The schooling should be limited at such point as the Court granting a decree nisi of divorce thinks just and fit in all the circumstances of the particular case at issue, having due regard to the conduct of the

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parties and the condition, means and other circumstances of each of them.

Thomasset v. Thomasset, [1894] P. 295, distinguished; Archer v. Hudson (1844), 7 Beav. 551; Dettmar v. Metropolitan and Provincial Bank (Ltd.) (1863), 1 H. & M. 641, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing an appeal from a judgment of Ruttan J. Appeal allowed.

W.H. Heffernan and W.M. Everett, for the appellant.

G.H. Dowding, for the respondent.

C.R.O. Munro, Q.C., and E.I. MacDonald, Q.C., for the Attorney General of Canada.

W.G. Burke-Robertson, Q.C., for the Attorney-General of British Columbia.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal of British Columbia dismissing an appeal from a judgment of Ruttan J., whereby he concluded that he was without jurisdiction to entertain an application purporting to be made pursuant to s. 11 of the Divorce Act, R.S.C. 1970, c. D-8, for continuation of maintenance payments to a divorced wife for the support and education of her 19-year-old daughter, Penelope, during an eight-month period while she completed her education by attending a teacher assistant program at the Vancouver City College.

The effect of the order made by the learned trial judge in this regard is described in the reasons for judgment of Bull J.A., on behalf of the Court of Appeal of British Columbia as follows:

…the learned trial judge refused to order the maintenance for Penelope continued (on preliminary

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objection being taken and without hearing the merits) on the ground that he had no jurisdiction under the Divorce Act to order maintenance for an adult child, and that the daughter became such an adult in this Province on attaining the age of 19 years.

The appellant and respondent were divorced by a decree of the Supreme Court of British Columbia in June 1965 under the terms of which the custody of the children of the marriage, i.e., two boys and one girl, was awarded to the respondent, but by 1971 all the children had gone to live with their mother and an order was granted under the purported authority of s. 11 of the Divorce Act, by which the original decree was varied so as to give custody of the two boys to the mother and an order that she be paid maintenance for them as well as for the girl for whom no order as to custody was made.

The respondent paid maintenance for Penelope until she became 19 years of age but then took the position that as she had reached her majority by virtue of the provisions of the Age of Majority Act, 1970 (B.C.), c. 2, he was no longer liable to pay for her maintenance. Faced with this decision, the wife applied for an order requiring the husband to continue the maintenance payments for Penelope for a period of eight months until she completed her short course in training as a “teacher assistant”.

Although the divorce was obtained in June, 1965, the application for continued maintenance payments was made under s. 11 of the Divorce Act, (originally enacted by 1967-68 (Can.), c. 24) by virtue of the provisions of s. 22(3) of that Act; which read as follows:

22. (3) Where a decree of divorce has been granted before the 2nd day of July 1968 or pursuant to subsection (2), any order to the effect described in subsection 11 (1) may be varied from time to time or rescinded in accordance with subsection 11(2) by the court that would have had jurisdiction

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to grant the decree of divorce corollary to which the order was made if this Act had been in force at the time when the petition for the decree was presented and that court had made the order by way of corollary relief in respect of a petition presented to it.

In the course of his reasons for judgment, Mr. Justice Bull observed that as the submissions of counsel had been made solely on the basis that the provisions of s. 22(3) were effective to make s. 11 applicable to the circumstances, he intended to deal with the issues here raised on that footing, but he added:

…I wish to make it clear that I do not determine that the “Corollary Relief” provisions in the Divorce Act (and particularly s. 11) have valid application with respect to children of a marriage of which a divorce was granted in 1965. It is open for future consideration whether Parliament in passing the transitional provisions in s. 25(3) with respect to custody and maintenance arising out of and incidental to, a divorce previously granted under the Provincial Divorce and Matrimonial Causes Act, R.S.B.C. 1960, c. 118, and not as collateral or incidental relief to a divorce granted under the Federal statute, legislated within its competency under the British North Amerca Act, 1867.

With the greatest respect, I am not prepared to proceed on the basis that the “Corollary Relief” provisions of the Divorce Act are to be treated as applicable to the issues here raised simply because both counsel agreed to proceed on this assumption. The Court would have had no jurisdiction to consider the issues if the provisions of s. 11 of the Divorce Act did not have “valid application with respect to children of a marriage of which a divorce was granted in 1965” and such jurisdiction cannot be conferred or acquired by consent of the parties.

In my view, the question of whether or not s. 22(3) of the Divorce Act has the effect of making the provisions in relation to maintenance payments by a divorced husband (s. 11) applicable in a case where the divorce was granted under the provincial statute in 1965, is one which

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arises directly in the present case, and I am satisfied that the power to grant an order for the maintenance of the children of the marriage is necessarily ancillary to jurisdiction in divorce and that the Parliament of Canada was therefore acting within the legislative competency conferred upon it by the British North America Act, 1867, s. 91(26) in legislating to this end. The further question which arises in this case, however, is whether that jurisdiction extends to the making of an order in relation to one of “the children of the marriage” who has attained her majority within the meaning of the Age of Majority Act.

Section 11 of the Divorce Act reads as follows:

11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:

(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the wife,

(ii) the children of the marriage, or

(iii) the wife and children of the marriage;

(b) an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the husband,

(ii) the children of the marriage, or

(iii) the husband and the children of the marriage; and

(c) an order providing for the custody, care and upbringing of the children of the marriage.

This section is to be construed in light of the definition contained in s. 2 of the Act which reads as follows:

2. In this Act

“child” of a husband and wife includes any person to whom the husband and wife stand in loco paren-

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tis and any person of whom either of the husband or the wife is a parent and to whom the other of them stands in loco parentis;

“children of the marriage” means each child of a husband and wife who at the material time is

(a) under the age of sixteen years, or

(b) sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw himself from their charge or to provide himself with necessaries of life;

In determining the meaning of “children of the marriage” as used in s. 11 of the Divorce Act, Mr. Justice Bull said:

…the governing word in the definition is “child”. The person must be a “child” before either of the two categories, i.e., “under the age of sixteen years” and “sixteen years of age or over” apply. Section 2(a) defines “child”, but only to the extent of including a status not here relevant. Therefore the normal, ordinary meaning of “child” under the common law must be taken. The word in its broadest sense as a term of relationship is not bound by age barriers—everybody is a child of someone. But when used in matrimonial proceedings where the jurisdiction of the Courts is with respect to maintenance and custody, the word has always been synonymous with “infant child”, a person who has not attained his majority which, at common law, is twenty-one years.

Having treated the definition of child in s. 2 as being limited to “a status not here relevant”, Mr. Justice Bull considered the common law meaning of the word and adopted the premises (1) that “child” is synonymous with “infant child” and (2) that an infant child is one who “has not attained his majority”. This reasoning led the learned judge to a consideration of s. 2 of the Age of Majority Act, supra, which provides that “a person attains the age of majority and ceases to be a minor on attaining the age of 19 years” and he therefore concluded that when Penelope Jackson became nineteen on May 30, 1971, she ceased to be “a child” of the husband and wife within the meaning of the Divorce Act.

Before examining this syllogism in more detail, I think it desirable to reproduce the pro-

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visions of s. 2(1) and (2) of the Age of Majority Act, which read as follows:

2. (1) From the date of the coining into force of this Act,

(a) a person attains the age of majority on attaining the age of nineteen instead of on attaining the age of twenty-one;

(b) a person who on that date has attained the age of nineteen but not the age of twenty-one is deemed to have attained his majority on that date.

(2) Subsection (1) applies for the purposes of any rule of law, and, in the absence of a definition or of an indication of a contrary intention, for the construction of “full age”, “infant”, “infancy”, “minor”, “minority”, and similar expressions in

(a) a statutory provision, whether enacted or made before, on, or after the date on which this section comes into force; and

(b) a deed, will, or other instrument of whatever nature, not being a statutory provision, made on or after that date.

As I have indicated, the validity of the reasoning which led the Court of Appeal to conclude that the meaning of the word “child” as used in the Divorce Act was controlled by the provision regulating the age at which “a person attains the age of majority” is dependent upon the dual assumption that the word “child” is to be given its common law meaning and that, when used in matrimonial proceedings with respect to maintenance, it has always been synonymous with “a person who has not attained his majority”.

With the greatest respect, I am unable to accept either of these assumptions. The meaning of the word “child” with which we are here concerned is not the common law meaning but the meaning assigned to it by s. 2 of the Divorce Act which is limited to defining “child of a husband and wife” and includes any person to whom the husband and wife or either of them stands “in loco parentis”. In the context of the Divorce Act as a whole it is apparent that the purpose and effect of the definitions of “child” and “children of the marriage” contained in s. 2 is confined to the interpretation of the “Corollary Relief” provisions of the Act, (ss. 10 and 11) and particularly

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to the meaning of “children of the marriage” as used in those sections, so that it is unquestionably used as correlative to parent and in this sense, except as otherwise provided, it is not bound by any age barriers.

In its ordinary and dictionary meaning, the word “child” has two connotations, the one directed to age and the other as correlative to “parent”. This is illustrated by reference to the dictionary definitions in both the official languages.

In the Shorter Oxford English Dictionary the word “child” is defined, inter alia, as follows:

CHILD

I 1. Foetus, infant

2. a boy or girl.

II As correlative to parent. 1. The offspring male or female of human parents.

In Petit Robert, dictionnaire de la langue française, two meanings are also given for the word “enfant”, namely:

1° Être humain dans l’âge de l’enfance.

2° Être humain à l’égard de sa filiation, fils ou fille.

“Enfance” is in turn defined as:

1° Première période de la vie humaine, de la naissance à l’adolescence.

The period during which such children may be entitled to maintenance under the Divorce Act is in no way related to their attaining the age of majority (whether 18 or 21 years), but on the contrary, it terminates at the age of 16 unless a child over that age is “unable, by reason of illness, disability or other cause, to withdraw himself from their [his parents’] charge or to provide himself with necessaries of life”.

The conclusion of the Court of Appeal that in British Columbia a person ceases to be “a child” within the meaning of the Divorce Act on attaining his or her majority at the age of nineteen, seems to me to carry with it the corollary that every person remains a child until attaining

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that age and I am unable to reconcile this reasoning with the specific provisions of the Divorce Act which has the effect of excluding all children over sixteen years from the category of “children of the marriage” unless they are unable to withdraw from the charge of their parents or to provide themselves with the necessaries of life for the reasons specified in s. 2, in which event no age limit is fixed and the question of whether or not an order for maintenance is to be granted under s. 11 appears to be left to the discretion of the presiding judge.

As I have indicated, in equating “child” with “infant child” or “minor” the Court of Appeal appears to have derived no assistance from the definition of “child” in s. 2 of the Act, of which they said: “Section 2(a) defines ‘child’, but only to the extent of including a status not here relevant.” As I have said, I am of opinion that the words “children of the marriage” as defined in 2(b) are clearly used as a term of relationship and that, with respect to each child who is “sixteen years of age or over” they do not create any age barrier but on the other hand include all such children irrespective of age who qualify as being unable to withdraw from the parents’ charge or provide themselves with the necessaries of life for the reasons stated in the subsection. I think that this is underscored by the inclusion in the defition of any person to whom the husband and wife or either of them stand “in loco parentis”. That a person may stand “in loco parentis” to a child who has reached the age of majority is shown by the case of Archer v. Hudson[2], and Dettmar v. Metropolitan and Provincial Bank (Ltd.)[3].

Finding the definition of “child” in s. 2 to be irrelevant, Mr. Justice Bull concluded that the common law meaning of the word must be taken and in so doing he conceived it to be the law, that in cases where jurisdiction of the Courts in respect to maintenance is concerned, the word has always been synonymous with a person who has not attained his majority. This proposition is

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based on a quotation from the reasons for judgment of Lindley L.J., in Thomasset v. Thomasset[4], at p. 302, where he expressed an opinion which was limited to a consideration of the jurisdiction conferred by s. 35 of The Matrimonial Causes Act, 1857 (U.K.), c. 85, as to which he said that it could “be exercised during the whole period of infancy—that is, until the children, whether males or females, attain twenty-one…”.

The section of The Matrimonial Causes Act with which Lindley L.J. was concerned empowered the Court, in any proceeding for judicial separation or nullity of marriage to

…make such provision in the final decree, as it may deem just and proper with respect to the custody, maintenance and education of the children of the marriage…

The effect of Thomasset’s case was to overrule the case of Blandford v. Blandford[5], and to hold that the Court’s jurisdiction conferred by ss. 4 and 35 of The Matrimonial Causes Act could be exercised until the children of the marriage, whether males or females attained twenty-one. Blandford’s case had held that the jurisdiction in such cases stood on the same footing as to common law liability for custody and education which stopped at the age of sixteen.

It will be seen that Thomasset’s case was concerned exclusively with the interpretation of s. 35 of the English statute, and it appears to me to be far from a conclusive authority for interpreting ss. 2 and 11 of the Divorce Act, which limit the Court’s jurisdiction to children of sixteen years and under except under the circumstances described in s. 2(b). In any event, Thomasset’s case cannot, in my opinion, be considered as authority for the proposition that “child” is always synonymous with “a person who has not attained his majority”.

Being of opinion, as I am, that the words “children of the marriage”, as used in the Divorce Act with respect to children who are “sixteen years of age or over” do not imply any limitation

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as to age, it follows that, in my view, Mr. Justice Ruttan and the Court of Appeal erred in holding that the Supreme Court of British Columbia “had no jurisdiction under the Divorce Act to order maintenance for an adult child.”

In my opinion, Penelope Jackson is one of the “children of the marriage”, who was over sixteen years of age at the material time, but the further question arises of whether she was unable to withdraw from her parents’ charge or to provide herself with the necessaries of life by reason of “illness, disability or other cause” within the meaning of those words as used in s. 2(b) of the Divorce Act.

Under the decision appealed from, the Supreme Court of British Columbia would be without jurisdiction to order maintenance even in the case of a 19-year-old child who is permanently disabled by paralysis, and as I have said, I am unable to agree with this view, but the question which has given rise to conflicting decision is: whether a child can be said to be “unable, by reason of illness, disability or other cause” within the meaning of s. 2(b) when the inability is occasioned by the necessity of attending school or college for the purpose of completing such education as is necessary to equip the child for life in the future.

Many of the conflicting decisions on this question in various provincial Courts are referred to in the reasons for judgment of Ruttan J., which are now reported in [1971] 5 W.W.R. 374, but for the purposes of this appeal I adopt the reasoning expressed by my brother Laskin when, sitting as a judge of the Court of Appeal of Ontario in Tapson v. Tapson[6], he said:

It was strenuously argued by counsel for the father that the relevant words of s. 2(b) of the Divorce Act must be given an ejusdem generis construction… I do not think that the Divorce Act should be given, in any of its provisions, a constricted construction. I hold that a child is unable, for cause within the terms of the Divorce Act, to provide for herself or to withdraw herself from the charge of a parent if that child is in regular attendance, as in this case, in a secondary school, pur-

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suing an education in the ordinary course designed to fit her for years of life ahead.

In that case the child in question was a 16-year-old girl who was living at home, and in the later case of Clark v. Clark[7], Mr. Justice Wright, who considered himself bound by the Tapson case, would nevertheless have confined it to its own facts. He was dealing with the case of a boy of nearly nineteen who was living at home and attending school and observed, at p. 678:

He is “a child of the marriage’ for the Divorce Act under Tapson v. Tapson, supra, and will remain so as long as he can stay at home and go to school. Should his father be ordered to pay the mother $35 per week for his maintenance and, if so, for how long?

I am of opinion that in interpreting the reasons in Tapson v. Tapson, supra, we should now adopt a constrictive construction of them. Laskin J.A., appears to give support to limiting the schooling to secondary school education and to children living at home.

If it be not limited, where can the line be drawn, for we have no words of Parliament to interpret if we step out further along this road? We have only the gloss.

I think the answer to the question posed in the last paragraph of this quotation is that the Une is to be drawn at such point as the Court granting a decree nisi of divorce thinks it just and fit to draw it in all the circumstances of the particular case at issue, having due “regard to the conduct of the parties and the condition, means and other circumstances of each of them”. The discretion accorded to the Court under s. 11 of the Divorce Act in my opinion includes the power to determine where such a line is to be drawn in each case and it is to be noted that an appeal lies to the Court of Appeal from any order so granted. (See s. 17(1) of the Divorce Act).

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As I am of opinion that the Supreme Court of British Columbia has jurisdiction in this case, I would allow this appeal, and in view of the fact that the order for maintenance of Penelope Jackson was refused without hearing the merits, I would direct that the matter be remitted to the Court of first instance to be determined in light of the circumstances disclosed by all the evidence.

An order having been granted by the Chief Justice pursuant to Rule 18 of the Rules of this Court directing notice of a constitutional question in this appeal to be served on the Attorney General of Canada and of the Provinces and the Attorney General of Canada and of Quebec and British Columbia having filed notices of intervention, I think it proper to advert to that question, which was framed in the following language:

Does the Age of Majority Act 1970 S.B.C., Chapter 22 apply to and limit the jurisdiction of a Court to grant maintenance for children pursuant to Section 11 of the Divorce Act 1970 R.S.C. Chapter D-8 to children of the marriage who have not yet attained their majority as defined by the Provincial Legislation?

As I take the view that the provisions of the Age of Majority Act have no effect on the meaning to be given to the words “children of the marriage” as they occur in s. 11 of the Divorce Act, I find no conflict between the two enactments and would therefore answer the question in the negative.

The appellant is entitled to her costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Russell & DuMoulin, Vancouver.

Solicitor for the respondent: Gordon H. Dowding, Vancouver.

Solicitor for the Attorney General of Canada: D.S. Maxwell, Ottawa.

Solicitor for the Attorney-General of British Columbia: W.G. Burke-Robertson, Ottawa.