Vadeboncoeur v. Landry, [1977] 2 SCR 179

Supreme Court of Canada

Vadeboncoeur v. Landry, [1977] 2 S.C.R. 179

Date: 1976-01-30

Armand Vadeboncoeur Appellant;

and

Annette Landry Respondent;

and

Attorney General of Canada, Attorney General of the Province of Quebec and Attorney General of the Province of Ontario Intervenors.

1975: April 28; 1976: January 30.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Divorce—Orders granting corollary relief—Silence of decrees nisi and absolute—Interim order—Petition brought two months after the decree absolute—Divorce Act, R.S.C. 1970, c. D-8, s. 11, Civil Code, arts. 212, 213.

While the parties were involved in divorce proceedings, respondent obtained, on April 7, 1971, an interim order for payment to her by her husband, appellant, of alimony in the amount of $60 a week. However, neither the decree nisi of divorce dated May 21, 1971 nor the decree absolute dated August 26, 1971 referred to alimony. Since appellant ceased paying this alimony in accordance with the interim order on September 6, 1971, respondent brought a petition for alimony in the Superior Court on October 26, 1971. Her allegation was that her counsel and counsel for her ex-spouse had agreed that the terms of the decree with respect to interim relief would be reproduced in the decree nisi. The judge of the Superior Court held that, independently of the alleged agreement, s. 11 of the Divorce Act enabled him to allow the motion and he granted respondent alimony of $60 per week. The Court of Appeal unanimously upheld this decision: Two of the judges relied on both s. 11 of the Divorce Act and art. 212 C.C., but the Chief Justice relied exclusively on the latter. Appellant obtained special leave from this Court to appeal from this decision of the Court of Appeal and to contest the constitutionality of arts. 212 and 213 of the Civil Code.

Held: The appeal should be dismissed.

It must first be decided whether the Superior Court could, in the circumstances, pursuant to s. 11 of the Divorce Act, grant alimony to respondent, after the decrees nisi and absolute of divorce, in the light of their

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silence on this point. This Court has already dismissed the argument that an order based on s. 11 must of necessity be delivered at the same time as the decree nisi. The first words of s. 11(1), “Upon granting a decree nisi of divorce”, do not mean that the Court can deal with corollary relief only at the time when a decree nisi is granted. In the case at bar, the petition is not based on needs arising after the dissolution of the marriage bond, nor was the wife’s petition considered and denied for lack of merit when the decree nisi was granted, nor, finally, was the matter of her needs and support not raised during the proceedings. In fact, the question was raised and determined in favour of respondent, on an interim basis, before the decree nisi, and it was only by an oversight that it was not dealt with when the decree was granted. The purpose of the petition submitted by respondent within a reasonable lapse of time after the decree absolute was to remedy this omission and the Superior Court had jurisdiction to grant it, and this jurisdiction originates in s. 11.

However, the circumstances of this case do not enable the Court to deal with the appeal on a broader basis, as it was asked to do by the Attorney General of Canada, namely, to determine whether the Constitution empowers the Parliament of Canada to prescribe that the obligation to provide assistance indefinitely survives the dissolution of the marriage bond and that this is what was done in the Divorce Act. Since it has held that the jurisdiction of the Superior Court originates in s. 11 of the Divorce Act, the Court does not need to reply to the question as to the constitutionality of arts. 212 and 213 of the Civil Code. There are not sufficient reasons for this Court to give an opinion on a question that, in the final analysis, it is not necessary to resolve.

Jackson v. Jackson, [1973] S.C.R. 205; Zacks v. Zacks, [1973] S.C.R. 891; Nash v. Nash, [1975] 2 S.C.R. 507; Lapointe v. Klint, [1975] 2 S.C.R. 539; Ouimet v. Ouellet (1975), 7 N.R. 1, referred to.

APPEAL from a decision of the Court of Appeal[1] affirming a judgment of the Superior Court granting a petition for alimony. Appeal dismissed.

Francine Massy-Roy and Normand Desy, for the appellant.

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Pierre Fournier, for the respondent.

P.M. Ollivier, Q.C., for the Attorney General of Canada.

Robert Deblois and Roger Thibaudeau, Q.C., for the Attorney General of Quebec.

D. Mundell, Q.C., and J. Polika, for the Attorney General of Ontario.

The judgment of the Court was delivered by

BEETZ J.—Appellant and respondent were husband and wife. Their marriage was dissolved upon petition by appellant, uncontested by respondent, by a decree nisi of divorce dated May 21, 1971 and by a decree absolute dated August 26, 1971. Neither of the two decrees referred to alimony in favour of respondent. The latter had obtained, on April 7, 1971, an interim order for payment to her by her husband of alimony in the amount of $60 a week. Appellant paid this alimony throughout the proceedings and even after, up until September 6, 1971, when as justification for his refusal to continue payment, he relied on the silence of the divorce decrees with respect to plaintiff’s right to alimony.

On October 26, 1971, respondent brought in the Superior Court a petition for alimony, which resulted in an appeal. The principal allegation of the petition was that counsel for both ex‑spouses

[TRANSLATION] had agreed that when the petition for divorce was submitted for a decree nisi the terms of the above-mentioned decree of April 7, 1971 with respect to interim relief would be reproduced in the decree nisi with respect to corollary relief.

Counsel for the appellant moved that this petition be dismissed immediately, on the grounds that, even if the alleged facts were true, respondent had lost all her right.

Nevertheless, the Superior Court ordered that the hearing be held. Counsel for the parties during the divorce proceedings gave testimony at the hearing, but their testimony did not agree. Counsel for the respondent testified that the ageement

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alleged by respondent had in fact been concluded. He had not been present at the hearing preceding the decree nisi, and he had not inquired into the record which made mention of the decree nisi. Respondent told him, after the decree was delivered, that she continued to receive alimony, and he assumed that everything was in order. He was not present when the petition for a decree absolute was submitted. It was only when he returned from vacation, in September 1971, that he took cognizance of this decree and was informed that appellant had discontinued payment. Counsel for the appellant admitted that there had been negotiations at the time, but claimed that no agreement was reached. In submitting the petition for a decree nisi, he did not draw the Court’s attention to the fact that there had been an interim order granting alimony to respondent because, he said, this order was on record.

In the Superior Court, Desaulniers J., did not consider it necessary to rule on whether or not the agreement alleged by respondent had been concluded. He held, moreover, that respondent had by obtaining interim alimony during the divorce proceedings established her right to alimony, and that this right, in the absence of any evidence to the contrary, existed at the time the decree nisi was delivered and also at the time the decree nisi was declared absolute. He concluded that:

[TRANSLATION] If this right was not exercised, it was only because of an omission on the part of his counsel or of counsel for the respondent or the result of a misunderstanding between them.

He also noted that, according to the evidence, respondent did not waive this right in any way. He expressed the opinion that s. 11 of the Divorce Act, R.S.C. 1970, c. D-8, allowed him to grant alimony in these circumstances and he granted respondent alimony of $60 per week, which amount incidentally was not at issue.

The Court of Appeal of Quebec unanimously upheld the decision; Tremblay C.J., relied exclusively on art. 212 of the Civil Code; appellant would have contested the constitutionality of this provision but was prevented from so doing because the notice required by art. 95. C.C.P., had not

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been given; Casey and Turgeon, JJ.A., relied on both art. 212 of the Civil Code and s. 11 of the Divorce Act,

Appellant obtained special leave from this Court to appeal from the decision of the Court of Appeal. Since he wished to contest the constitutionality of art. 212 of the Civil Code, the notice provided in s. 18 of the Rules of the Court was given. The constitutional question was defined as follows:

Are articles 212 and 213 of the Civil Code of the Province of Quebec as replaced by article 14 of chapter 74 of the Laws of the Province of Quebec ultra vires in whole or in part?

The Attorneys General of Canada, Quebec and Ontario obtained leave to intervene.

The appeal raises one issue, possibly two:

1. Could the Superior Court, in the circumstances, pursuant to s. 11 of the Divorce Act, grant alimony to respondent, after the decrees nisi and absolute of divorce, in the light of their total silence on this point?

2. If s. 11 of the Divorce Act did not confer such power on the Superior Court, did art. 212 of the Civil Code do so?

It will only be necessary to decide on the second question if the answer to the first is in the negative.

I shall therefore deal with the first question immediately. It would be useful to reproduce s. 11 of the Divorce Act:

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,

(ii) the children of the marriage, or

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

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(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. 1967-68, c. 24, s. 11.

The constitutionality of this section and of ss. 10 and 12 of the Divorce Act has now been established: the Court has decided that the power to enact these provisions is necessarily ancillary to the federal jurisdiction over divorce: Jackson v. Jackson[2]; Zacks v. Zacks[3].

In the latter decision, the question of when alimony may be applied for and granted according to s. 11 of the Divorce Act was raised in this Court for the first time. The argument that an order based on s. 11(1) must of necessity be delivered at the same time as the decree nisi was dismissed; the words “Upon granting a decree nisi of divorce” refer to the time when the court acquires jurisdiction to grant corollary relief; in a passage which incidentally was cited in support of Nash v. Nash[4], Martland J., who delivered the unanimous judgment of the Court, said the following on the meaning of the word “upon” as used in s. 11(1):

The meaning of the word, as used in s. 11(1) must be determined in the light of the fact that legislation by Parliament in relation to alimony, maintenance and the custody of children would only be within its powers if

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associated with and as part of legislation in relation to the subject matter of divorce. It is my opinion that when it was provided that the Court could deal with those matters “upon granting a decree nisi of divorce”, it was meant that it was only when a divorce was granted that the Court acquired the necessary jurisdiction to deal with those subjects.

The Court held first that a judge is acting within the limits of his jurisdiction when, on pronouncing a decree nisi, he makes an order pertaining only to the right to grant maintenance and, pursuant to the rules of that Court, refers the question of the amount to the registrar who will make a recommendation, and secondly that the divorce court has the power to set the appropriate amount of maintenance, upon receipt of the registrar’s recommendation, even though in the meantime the decree absolute of divorce has been granted.

The question was again analysed by this Court in Lapointe v. Klint[5]. This case involved a petition for alimony submitted after the granting of the decrees nisi and absolute of divorce neither of which contained an express statement of the right to maintenance, yet did respectively contain the words “other rights reserved” and “THE COURT RESERVES all other rights”. After appellant’s petition for divorce had been served, respondent submitted a petition for alimony. However, after being twice adjourned, this petition was struck out due to the absence of respondent, who had had to go to Japan. Because of this absence, the Court could not make an order on the question of maintenance when the divorce were delivered, but as a result of representations made by counsel for the respondent, it reserved judgment on the question. This is not a case in which the question of maintenance was not raised at the time when the decree nisi was granted, nor one in which the application was refused for lack of merit. The Court also noted respondent’s promptness in submitting her petition after the decree absolute was granted and held that, in view of the circumstances, the Court could

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decide on the question of maintenance once the marriage was finally dissolved. The conclusion of Martland J., who delivered the unanimous decision of the Court, was:

In my opinion the issue as to the granting of maintenance, although incidental to and dependent upon the granting of a decree of divorce, may be dealt with by the Court separately from the issue as to the granting of such decree. If the Court decides that a party to the divorce proceedings is entitled to maintenance, or is entitled to have that issue determined, its right to determine such entitlement does not preclude it from dissolving the marriage, but such dissolution does not prevent it from dealing with the corollary relief aspect thereafter. It is because the marriage is being dissolved that the power and the necessity to determine the right of a party to the marriage to maintenance arises. The Court having derived jurisdiction to deal with that matter when the decree nisi is granted, in the absence of some express provision in the Act to the contrary, is not deprived of the power to deal with the issue which has come before it because the decree is made absolute, if that issue is still undetermined.

Finally, in Ouimet v. Ouellet[6], a decision of this Court delivered on February 21, 1975, a petition for alimony was submitted by the wife a little over eight months after she had obtained, without applying for interim relief, a decree nisi of divorce, but before the decree absolute. A petition for a decree absolute had been filed, then struck out at the time of its submission. The decree nisi expressly reserved to the wife her possible right to alimony. The wife had been out of the country for a period of five to six months after the decree nisi was granted. By a majority decision quashing the judgment of the Superior Court, the Court of Appeal granted alimony to the wife. In a very brief decision, delivered orally, the Court dismissed the husband’s appeal: in the light of Lapointe v. Klint, the Superior court was in this case empowered to reserve the contingent right to alimony and to make an order dealing with the question at a future time.

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In the case at bar, the petition is not based on needs arising after the dissolution of the marriage bond, nor was the wife’s petition considered and denied for lack of merit when the decree nisi was granted, nor, finally, was the matter of her needs and support not raised during the proceedings; it was in fact raised and determined in favour of respondent, on an interim basis, before the decree nisi. The petition for alimony is based on needs that existed at the time of the dissolution of the marriage. According to the trial judge’s undisputed findings the lack of an appropriate order made in favour of respondent when the decree nisi was granted is only the result [TRANSLATION] “of an omission on the part of his or respondent’s counsel or of a misunderstanding between them”. Respondent’s right to alimony in the circumstances would normally have been dealt with when the decree nisi was granted, and it was only by an oversight that this did not happen and the issue remained unsettled. Respondent submitted her petition two months after the decree absolute was granted—in my opinion, a reasonable lapse of time—after she learned of a fortuitous omission in the proceedings taken to dissolve her marriage. The purpose of her petition was to remedy this omission. In my view, the Superior Court had jurisdiction to grant the petition and this jurisdiction, connected as it is with the granting of the decree of divorce, originates in s. 11 of the Divorce Act.

As in Zacks v. Zacks, the Attorney General of Canada asks that the Court deal with the appeal on a much broader basis, namely, that the constitution empowers the Parliament of Canada to prescribe that the obligation to provide assistance indefinitely survives the dissolution of the marriage bond and that this is what was done in the Divorce Act. The circumstances of this case do not enable us to express an opinion upon such general propositions, anymore than it was possible in Zacks v. Zacks.

Nor is there any need to reply to the second question as to the constitutionality of arts. 212 and

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213 of the Civil Code. The formulation of a constitutional question at a time when the Court has not yet been able to take cognizance of a complete case, and the intervention on the part of the Attorneys General, are not sufficient reason for this Court to give an opinion on questions that, in the final analysis, it is not necessary to resolve.

I would dismiss the appeal with costs. Nevertheless, each of the Attorneys General shall pay the costs of his intervention.

Appeal dismissed with costs.

Solicitors for the appellant: Champagne, Bourassa & Ferland, Montreal.

Solicitors for the respondent: Byers, Casgrain & Stewart, Montreal.