Ruttan v. Ruttan, [1982] 1 SCR 690

Supreme Court of Canada

Ruttan v. Ruttan, [1982] 1 S.C.R. 690

Date: 1982-05-31

Eva Joyce Ruttan Appellant;

and

James Russell Ruttan Respondent.

File No.: 16515.

1982: February 3; 1982: May 31.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Matrimonial law—Reciprocal enforcement of maintenance orders—Validity of order questioned before enforcing court—Whether or not enforcing court has jurisdiction to determine validity of order—Divorce Act, R.S.C. 1970, c. D-8, ss. 2, 11(1),(2), 15.

This appeal deals with whether or not a provincial court, enforcing a maintenance order of a superior court of another province, has jurisdiction to make inquiries into and to hear evidence as to the validity of the order. Respondent argued before a B.C. provincial court that a child maintenance order from Nova Scotia was invalid, as the child, then 16, was no longer a child of the marriage, and led evidence as to her circumstances. His appeal from the provincial court’s order to the county court, by way of trial de novo was dismissed but the appeal to the Court of Appeal was allowed.

Held: The appeal should be allowed.

The provincial court judge, had she entertained the question of whether or not the child remained a child of the marriage, would have gone beyond enforcement proceedings and entrenched on the jurisdiction of the court that made the order. The court of original jurisdiction alone can exercise the power to vary, change, revoke, or refuse or delay enforcement.

A maintenance order made on behalf of a child under sixteen is not extinguished by operation of law on the child’s reaching that age; a child does not cease to be a child of the marriage only by reason of attaining the provincial age of majority.

Jackson v. Jackson, [1973] S.C.R. 205; Meek v. Enright (1977), 5 B.C.L.R. 11, considered.

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APPEAL from a judgment of the British Columbia Court of Appeal (1981), 119 D.L.R. (3d) 695, 20 R.F.L. (2d) 122, [1981] 3 W.W.R. 385, allowing an appeal from the judgment of Anderson C.C.J. dismissing an appeal by way of trial de novo from the order of Murphy P.C.J. Appeal allowed.

W.A. Pearce, for the appellant.

Theodore Nemetz, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—The appellant and respondent were formerly wife and husband. Their marriage was dissolved by a decree nisi of divorce made in the Supreme Court of Nova Scotia on May 4, 1978. The decree nisi provided for an order of maintenance for an infant child of the marriage, Mary Gladys Ruttan, in these terms:

…the Respondent shall pay to the Family Court, 2660 Agricola St. Halifax, N.S. for the support and maintenance of the said infant child, the sum of One Hundred Dollars ($100.00) per month, the first such payment to be made on May 15, 1978 and thereafter on the fifteenth day of each and every succeeding month.

The infant child, the subject of the maintenance order, was born on May 26, 1962 and she attained the age of sixteen years on May 26, 1978, some three weeks after the making of the decree nisi. The payments under the order fell into arrears. Consequently, the decree nisi was transmitted to the Registrar of the Supreme Court of Victoria, pursuant to Rule 36 of the British Columbia Divorce Rules, and thereafter was sent to the Provincial Court of British Columbia, Richmond Registry, for enforcement under Rule 36(4) of the Divorce Rules.

A show cause summons was issued to the respondent and at the show cause hearing on July 17, 1979, an order was made for the payment of five hundred dollars ($500) on account of arrears, on or before June 15, 1979. At the hearing the respondent contended that the child was no longer a child of the marriage. He gave evidence to the effect that the child was at that date in grade 12

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and engaged in part-time employment as a cashier in a supermarket, making a substantial contribution to her own maintenance. It was also shown that the appellant at the time of the show cause proceedings was resident in Nova Scotia.

The respondent herein appealed to the County Court of Vancouver by way of trial de novo. This appeal was dismissed. The County Court judge held that there was no authority to go behind the order or to question it. A further appeal to the Court of Appeal for British Columbia succeeded with one dissent. Lambert and Anderson JJ.A. were of the opinion that while the Provincial Court Judge could not alter or vary an order of a superior court of another province, she was not prevented from making inquiries to decide whether the order in respect of which enforcement was sought was still a valid and subsisting order. Hinkson J.A., dissenting, would have dismissed the appeal considering that any power to vary or alter the order resided solely in the Court which had made it.

The relevant statutory provisions are set out hereunder: Section 2 of the Divorce Act provides:

2. …

“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;

Section 11 provides for the granting of corollary relief.

11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks it 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,

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(ii) the children of the marriage, or

(iii) the wife and the 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.

(2) An order made pursuant to this section may be varied from time to time or rescinded by the court that made the order if it thinks it fit and just to do so having regard to the conduct of the parties since the making of the order or any change in the condition, means or other circumstances of either of them.

It will be noted that the power to vary or rescind such an order is conferred upon the Court that made it. Section 15 covers the question of enforcement in superior courts in these terms:

15. An order made under section 10 or 11 by any court may be registered in any other superior court in Canada and may be enforced in like manner as an order of that superior court or in such other manner as is provided for by any rules of court or regulations made under section 19.

And B.C. Divorce Rule 36 provides in this respect:

Rule 36. (1) Where an order has been made by any other Court in Canada under section 10 or 11 of the Act the order may be registered pursuant to section 15 of the Act by filing an exemplification or certified copy of the order in the office of the Registrar of the Supreme Court of Victoria, whereupon it shall be entered as an order of the Court.

(2) …

(3) …

(4) An order registered under this rule may be enforced by the Provincial Court (Family Division) of British Columbia as if it were a maintenance order within the meaning of Part IV of the Family Relations Act of the Province of British Columbia.

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The one point in issue on this appeal is whether a provincial court, before which enforcement of an order of maintenance made in a decree nisi in a superior court in another province is sought, has jurisdiction to make inquiries and to hear evidence for the purpose of deciding whether a child named in the order continues to be a child of the marriage within the meaning of the Divorce Act.

Before this Court, the appellant took the position that the provincial court in dealing with an order for maintenance made under the Divorce Act in the superior court in another province is limited in its jurisdiction to enforcing the order in accordance with the provisions outlined above and is precluded from varying, altering, rescinding or remitting it. All power to vary an order for maintenance, it was contended, remained in the court which made it. She drew attention to s. 11(2) of the Divorce Act in support of this proposition. The respondent argued that a child, the subject of a maintenance order under the Divorce Act, ceased to be a child upon attaining the age of sixteen years by operation of law. Declining to enforce an order in these circumstances on the basis that the child was not at the date on which enforcement was sought a child of the marriage would not be a variation of the original order since it could subsist as a valid order only for so long as the child possessed the character of a child of the marriage.

In my opinion this appeal must succeed. With the utmost deference to the majority of the Court of Appeal, I am of the opinion that the authorities are against their position. It is my view that Hinkson J.A., in his dissenting reasons, was correct in rejecting the argument that a maintenance order made on behalf of a child under sixteen was extinguished by operation of law when the child reached that age. I agree with his view that the judgment of this Court in Jackson v. Jackson, [1973] S.C.R. 205, did not have that effect but merely held on this point that such a child did not cease to be a child of the marriage only by reason of the fact of his having attained majority under provincial age of majority legislation. I am also in

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agreement with him in his reliance on the case of Meek v. Enright (1977), 5 B.C.L.R. 11, and I refer to the following passage from the judgment of Bull J.A. in that case at pp. 16 and 17:

Admittedly the relevant provisions could have been more clearly phrased. But I get some comfort for my view (in conformation of that of the Supreme Court Judge) when I consider that what I think is a sound, but broader, view of the basic legislative policy lying behind the reciprocal registrations and enforcement of foreign judgments and orders. I think it plain, both in logic and judicial history, that where a foreign court having jurisdiction over the parties makes an order or judgment affecting their respective rights, and a party against whom a duty or liability is found moves to another jurisdiction, the reciprocal provisions for following that person to that jurisdiction with that judgment for enforcement should not endow the new jurisdiction with the right to do anything more than carry out the enforcement. Whether the judgment should be varied, changed, revoked or enforcement refused or delayed should be for the court of original jurisdiction. That principle seems quite apparent in the Family Relations Act in its reciprocal provisions that orders originating in one jurisdiction require confirmation in the other before becoming effective and enforceable where the originating jurisdiction did not have jurisdiction over all the parties at the time of the order or judgment.

The law so stated is applicable to the facts of this case and in my view it is decisive. If the provincial court judge had entertained the question of whether or not the child remained a child of the marriage, she would have gone beyond enforcement proceedings and trenched upon the jurisdiction of the Court which made the order. I would therefore allow the appeal with costs and restore the order of the provincial court judge.

Appeal allowed with costs.

Solicitor for the appellant: Attorney General of British Columbia, Victoria.

Solicitor for the respondent: T. Nemetz, Toronto.