Supreme Court of Canada
Schwebel v. Ungar, [1965] S.C.R. 148
Date: 1964-12-21
Abram Schwebel (Plaintiff)
Appellant;
and
Hava Ungar (Defendant)
Respondent.
1964: October 13, 14; 1964: December 21.
Present: Cartwright, Martland, Judson,
Ritchie and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Conflict of laws—Status—Parties whose
domicile of origin was Hungary married in that country—Jewish bill of
divorcement obtained in Italy—Parties later acquiring domicile of choice in
Israel—Divorce not recognized in Italy or Hungary but recognized in
Israel—Female party subsequently married in Ontario while continuing to be
domiciled in Israel—Whether Ontario marriage valid.
In 1945 the defendant was married to W in Budapest, Hungary, which country was their
domicile of origin. Before their marriage they had decided to leave Hungary permanently for Israel and in furtherance of this intention
they left Budapest three weeks
after the marriage and, having put themselves in the hands of a Jewish deputy,
started for Israel in company
with many thousands of other Hungarians. In 1948, while still en route to
Israel, they obtained a Jewish
bill of divorcement in Italy in
conformity with rabbinical law by appearing,
[Page 149]
in the presence of witnesses, before a rabbi
at which time a formal document entitled a “gett” was delivered to the
defendant. This document was not recognized either in Italy or in Hungary as
bringing the marriage to an end, but it was so recognized in Israel, where the defendant and W finally arrived
a few weeks after the “gett” was delivered.
As to W’s life and activities after his
arrival in Israel the evidence
was sketchy; as to the defendant, the evidence disclosed that she remained in Israel and lived with her parents. Some
years later, while on a trip to Ontario for the purpose of visiting relatives, the defendant met and
married the plaintiff in Toronto. Subsequently, the plaintiff obtained a declaration in the Supreme
Court of Ontario that the marriage solemnized between the parties at Toronto was null and void because there was
a valid and subsisting marriage then in existence between the defendant and W.
On appeal by the defendant the judgment at trial was set aside. With leave of
the Court of Appeal, an appeal by the plaintiff was then brought to this Court.
Held: The
appeal should be dismissed.
The manner of their coming to Israel was such
as to justify a finding that immediately upon their arrival W and the defendant
acquired a domicile of choice in that country, where the dissolution of their
marriage was recognized from the moment when the “gett” was delivered to the
defendant, and where each of them therefore had the status of a single person
with full capacity to enter into a valid and binding contract of marriage. The
defendant was thereafter free to continue and did continue to be domiciled in Israel as an unmarried woman until the time
of her marriage to the plaintiff. Accordingly, at the time of her marriage in Toronto the defendant had the capacity to
marry according to the law of the country where she was then domiciled.
Although, as a general rule, under Ontario
law a divorce is not recognized as valid unless it was so recognized under the
law of the country where the husband was domiciled at the time when it was
obtained, the Court of Appeal was correct in its conclusion that, for the
limited purpose of resolving the difficulty created by the peculiar facts of
this case, the governing consideration was the status of the defendant under
the law of her domicile at the time of her second marriage and not the means
whereby she secured that status.
Bell v.
Kennedy (1868), L.R. 1 Sc. & Div. 307, referred
to.
APPEAL from a judgment of the Court of Appeal
for Ontario, allowing an appeal
from a judgment of McRuer C.J.H.C. granting a declaration of nullity of
marriage. Appeal dismissed.
H.W. Silverman, for the plaintiff,
appellant.
G.D. Finlayson, Q.C., and J.H. Francis,
for the defendant, respondent.
The judgment of the Court was delivered by
RITCHIE J.:—This is an appeal brought with leave
of the Court of Appeal of Ontario from a judgment of that
[Page 150]
Court1 setting aside the judgment
rendered at trial by McRuer C.J.H.C. which had declared that the marriage
solemnized between the parties at Toronto on April 6, 1957, was null and void
because there was a valid and subsisting marriage then in existence between the
respondent and one Joseph Waktor.
At the time of his marriage to the respondent,
the appellant was a bachelor domiciled in the Province
of Ontario and the couple
thereafter lived together in Toronto where their daughter was born in 1958, but differences appear to
have developed between them which culminated in the present litigation.
In essence the argument advanced on behalf of
the appellant is that the validity of the bill of divorcement granted before a
rabbinical court at Trani, Italy, which purported to dissolve the respondent’s
first marriage was not, at the time when it was granted, recognized in Hungary
which was then the country of Waktor’s domicile and accordingly that it should
not be recognized in the Province of Ontario. It is further contended, as the
learned trial judge has found, that the evidence does not justify a finding
that Waktor had acquired a domicile of choice in Israel, where his marriage was
regarded as having been legally dissolved, and that the respondent therefore
never lost her status as Waktor’s wife according to the law of his domicile of
origin in Hungary which should be recognized in the Courts of Ontario as the
status which she had at the time of her marriage to the appellant.
The respondent, who was born in Hungary, was married to Waktor in Budapest in 1945 when she was 19 years of
age. Before her marriage she had decided to leave Hungary for Israel, and
Waktor’s position in this regard can best be gathered from the following
excerpts from the respondent’s examination for discovery:
Q. Where were you born? A. I was born in Hungary.
Q. And you lived there all your life prior
to this marriage with Joseph Waktor? A. Yes.
Q. What about Joseph Waktor? Do you know
where he lived? A. He once went to Israel and after came back.
Q. Was he in business in Hungary, or was he a teacher? What was his
occupation? A. He was in the army and after in a forced labour camp.
[Page 151]
Q. But, he always had lived in Hungary? A. He went to Israel for two years previous to our
marriage.
Q. When was that he went to Israel? A. Before he was in—it must be in
the service.
Q. That was in the early thirties? A. I
don’t know.
Q. And then he came back to Hungary? A. Yes, he could’nt get back.
Q. And he continued to live in Hungary? A. He was in the labour camp, yes.
And again in her examination-in-chief:
Q. And what happened after you were
married? Did you decide to leave Hungary? A. We decided to leave Hungary after we got married.
Q. You had made up your mind to leave
before you got married? A. I made up my mind when the Germans was in, that I
will leave Hungary after the
War.
Q. And was Mr. Waktor of the same mind? A.
Yes.
Q. Where did you intend to go? A. To Israel.
Q. And is that where your husband intended
to go? A. Yes.
In furtherance of this intention, the newly
married couple left Budapest a
few weeks after the marriage and started for Israel in company with many thousands of other Hungarians. For the purpose
of the journey the respondent testified that they put themselves “in the hands
of a Jewish deputy, an Israeli deputy” who appears to have been representing “a
few Jewish people who arranged to get people out of Europe to Israel” of whom
the respondent says: “They was only organized to take people from all over the
world, but mostly from European countries to Israel”.
It is to be inferred from the evidence that the
Waktors left Hungary having
already decided that they would never return, but it does not appear to me that
they are to be characterized as “political refugees” in the sense of being
people who left under the fear of political oppression. In the case of refugees
of the latter type, the possibility of the return of a political climate which
would make it safe and practical for them to come home is always a factor to be
considered before drawing the inference that they have formed a permanent
intention to remain in another country. In the case of the Waktors, however, it
appears to me that the dominant motive in their departure was not so much a
desire to get away from Hungary
as it was their decision to become a part of the new community then in the
process of development in Israel which was the country of their racial origin.
[Page 152]
For nearly three years the couple moved from one
displaced persons camp to another in Germany and Italy en route to
Israel and in October 1948, when they had reached a camp at Trani in Italy,
which proved to be the last stage of their journey, they obtained a Jewish bill
of divorcement in conformity with rabbinical law by appearing, in the presence
of witnesses, before the rabbi in the camp at which time a formal document
entitled a “gett” was delivered to the respondent. This document was not
recognized either in Italy where it was delivered or in Hungary which was the
Waktors’ domicile of origin as bringing the marriage to an end, but it was so
recognized in the State of Israel and a few weeks later, when the Waktors
finally landed there, they were recognized as having had the status of
unmarried persons under the law of that county from the time when the “gett”
was delivered.
As I have indicated, there is evidence to the
effect that Waktor had lived in Israel for two years before his marriage and that on his return to Hungary he had not been able to get back to
Israel because he was placed in
a forced labour camp. This affords some ground for the suggestion that when he
left Hungary for Israel after his marriage he was returning to a country where
he had already established a domicile of choice, and that he was therefore
domiciled in a jurisdiction which recognized the validity of a Jewish bill of
divorcement at the time when the “gett” was delivered to the respondent at
Trani. I do not, however, think that the evidence is sufficiently clear and
precise to justify a finding to this effect.
The evidence as to Waktor’s life and activities
after his arrival in Israel is sketchy but in the course of proving that he was
still alive at the time of the respondent’s second marriage, the appellant’s
counsel led evidence to show that, as far as was known, he had remained in
Israel from the time that he arrived there, and an extract was introduced from
a registration in the census book at Tel Aviv which is dated August 16, 1962,
and which states that Waktor is single, that his religion and nationality are
Jewish and that he is a resident of Israel from November 20, 1948.
The respondent’s evidence discloses that she
lived in Israel with her
parents for seven and a half years after her arrival and that it was on a trip
to New York and Toronto
[Page 153]
for the purpose of visiting relatives that she
met and married the appellant.
The learned Chief Justice who presided at the
trial of this action decided that the respondent was not domiciled in Israel at
the time of her second marriage on the ground that while she was in Italy she
still retained the domicile of her first husband which was Hungary and that the
evidence necessary to support a finding that Waktor had established a domicile
of choice in Israel was lacking in this case.
Although there is a presumption against a change
of domicile, and the intention to remain permanently in a country other than
the country of origin must be accompanied by actual residence in the new
country in order to establish a domicile of choice, there may nevertheless be
circumstances which so clearly indicate the existence of an intention to remain
permanently in the new country that the mere fact of arrival there is enough to
establish the new domicile. This proposition finds support in Dicey’s Conflict
of Laws, 7th ed., p. 96, where it is stated:
It is not, as a matter of law, necessary
that the residence should be long in point of time: residence for a few days or
even for part of a day is enough. Indeed, an immigrant can acquire a domicile
immediately upon his arrival in a country in which he intends to settle. The
length of the residence is not important in itself: it is only important as
evidence of animus manendi.
In Cheshire’s Private International Law, 6th ed., at p. 174, it is said:
On the other hand, time is not the sole
criterion of domicil. Long residence does not constitute nor does brief
residence negate domicil. Everything depends upon the attendant circumstances,
for they alone disclose the nature of the person’s presence in a country.
These views appear to me to be consistent with
the observations of Lord Chelmsford in Bell v. Kennedy, where he had occasion to say:
It may be conceded that if the intention of
permanently residing in a place exists, a residence in pursuance of that
intention, however short, will establish a domicile.
It would, in my view, be difficult to conceive
of circumstances pointing more forcefully to the existence of an intention to
permanently reside in a new domicile than those which were present in the case
of the Waktors who, on leaving their domicile of origin, immediately placed
[Page 154]
themselves in the hands of a deputy of the
country to which they were destined and who thereafter lived for three years in
a community of Jewish people all sharing the common purpose of settling in the
country of their racial origin.
As I have indicated, Chief Justice McRuer did
not consider that the evidence of Waktor’s movements after landing in Israel
was sufficiently clear and satisfactory to warrant a finding that he had
acquired a domicile of choice there, but in my view any frailties which may be
thought to exist in that evidence are more than offset by the circumstances
preceding his arrival which point so clearly to the existence of his long-held
intention to settle in the new country. I accordingly agree with the conclusion
reached by MacKay JA. in the course of the reasons for judgment which he
delivered on behalf of the Court of Appeal where he says:
On a reading of all the evidence in this
case, I think the proper conclusion is that Waktor (1) had an intention to
abandon his domicile of origin in Hungary, and (2) to establish a domicile of choice in Israel; and did so.
I am, however, of opinion that the emphasis
which the Courts below have placed on the evidence or lack of evidence as to
Waktor’s movements after he came to Israel is unnecessary in the present case. In my view the manner of their
coming was such as to justify a finding that immediately upon their arrival the
Waktors acquired a domicile of choice in Israel where the dissolution of their
marriage had been recognized as valid from the moment when the “gett” was
delivered to the respondent, and where each of them therefore had the status of
a single person with full capacity to enter into a valid and binding contract
of marriage. The respondent was thereafter free to continue and did continue to
be domiciled in Israel as an
unmarried woman until the time of her marriage to the appellant.
I am accordingly of opinion that at the time of
her marriage in Toronto the
respondent had the capacity to marry according to the law of the country where
she was then domiciled. This does not, however, solve the whole problem because
as a general rule, under Ontario law a divorce is not recognized as valid
unless it was so recognized under the law of the country where the husband was
domiciled at the time when it was obtained, and although the validity of the
Jewish divorce was at all times recognized in Israel where
[Page 155]
the Waktors established a domicile of choice
within three weeks of it having been granted, it was never so recognized
according to the law of the husband’s Hungarian domicile of origin.
The Court of Appeal of Ontario has treated these singular circumstances as constituting an
exception to the general rule to which I have just referred. In the course of
his reasons for judgment Mr. Justice MacKay has thoroughly and accurately
summarized and discussed the authorities bearing on this difficult question and
it would in my view be superfluous for me to retrace the ground which he has
covered so well. I adopt his reasoning in this regard and agree with his
conclusion that, for the limited purpose of resolving the difficulty created by
the peculiar facts of this case, the governing consideration is the status of
the respondent under the law of her domicile at the time of her second marriage
and not the means whereby she secured that status.
For all these reasons I would dismiss this
appeal with costs.
Appeal dismissed with costs.
Solicitor for the plaintiff, appellant:
H.W. Silverman, Toronto.
Solicitors for the defendant, respondent:
McCarthy and McCarthy, Toronto.