Doyle v. Doyle, [1977] 2 SCR 198

Supreme Court of Canada

Doyle v. Doyle, [1977] 2 S.C.R. 198

Date: 1976-02-25

John C. Doyle Appellant;

and

Maria G. Doyle Respondent.

1975: December 9; 1976: February 25.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Husband and wife—Declinatory exception—Residence and domicile of defendant—Action for annulment or declaration of nullity of marriage—Code of Civil Procedure, arts. 68, 70—Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 10.

Respondent brought an action in the Superior Court for the district of Montreal to have her marriage with appellant, which was contracted in Panama in 1959, declared null, and to have the civil effects of this putative marriage recognized. Appellant disputed the jurisdiction of the Superior Court by means of a declinatory exception and alleged that neither his domicile nor his residence at the time the proceedings were instituted was in the Province of Quebec. The trial court rejected this claim and declared that since the action was brought to obtain a declaration of nullity of the marriage between the parties, art. 70 of the Code of Civil Procedure applied and the court of last residence of the spouses, that is, Montreal, had jurisdiction. This was upheld by the Court of Appeal. Appellant disputes this decision in this Court and claims that: (1) art. 70 C.C.P. is not applicable, because this is an action the purpose of which is a declaration of the absolute nullity of the marriage and it is not an action for annullment; (2) art. 68 C.C.P. governs the jurisdiction of the parties, and plaintiff had therefore to establish that on the dates in question defendant had at least his residence in Montreal.

Held: The appeal should be dismissed.

Even if it is admitted that this is a personal action and that art. 68 C.C.P. applies, the evidence and the facts on record do not in any way enable us to conclude that appellant did not reside in Montreal. The filing of a declinatory exception does not result in placing the burden of proving that the Superior Court does in fact have jurisdiction on the complaining party. To support his claim appellant only filed an affidavit in which he simply states that his domicile and residence are in Panama. This affidavit cannot carry much weight in

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view of the fact that appellant is a Canadian citizen and that in other proceedings he adopted very different attitudes and maintained that his domicile and residence were in Montreal.

From the evidence as a whole, it must be concluded that appellant’s principal residence at the time in question was in Montreal. It must be concluded that even if the matter is governed by art. 68 C.C.P., as appellant contends, the action was brought before the competent court. In view of this conclusion it is not necessary to decide on the applicability of art. 70 C.C.P. However, if this Court had to do so, it would affirm the conclusions of the Court of Appeal, namely, that this is an action in declaration of nullity of marriage and that art. 70 applies to absolute nullity as well as to relative nullity.

APPEAL from a decision of the Court of Appeal of Quebec[1], affirming a judgment of the Superior Court dismissing appellant’s declinatory exception. Appeal dismissed.

J. Silcoff, for the appellant.

N. Salomon, for the respondent.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—In his declinatory exception, appellant alleges that his domicile and residence at the time the proceedings were instituted were in Panama, and asks the Superior Court for the district of Montreal to recognize that it has no jurisdiction in the case at bar. The trial court rejected this claim, pointing out that the action is brought to obtain a declaration of nullity of the marriage between the parties, and that art. 70 of the Code of Civil Procedure gives jurisdiction to the court of last residence of the spouses. This was upheld by the Court of Appeal.

As in the Court of Appeal, appellant did not dispute in this Court that for the purposes of his appeal we can take it that the last common residence of the parties was in Montreal. However, appellant claims that these judgments are erroneous. In his submission:

(1) art. 70 C.C.P. is not applicable here because:

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(a) the sole purpose of the action is recognition of the civil effects of a putative marriage;

(b) even should the action be interpreted as contesting the marriage itself, this article deals only with cases of relative nullity and cannot be relied on when the action alleges absolute nullity, as in the case at bar;

(2) the case is covered by art. 68 C.C.P., and plaintiff has not presented even prima facie evidence that on the dates in question defendant had at least his residence in Montreal.

In support of his claim that the action is not really an action in declaration of nullity, appellant argues that one should go beyond the conclusion that the marriage “be declared null”: that this should be interpreted in light of the allegations of the declaration, which refer to:

(a) the marriage of the parties in Panama on September 12, 1959;

(b) the granting of a divorce decree by the Circuit Court of Alabama on March 30, 1959 ending a previous marriage of defendant-appellant;

(c) annulment of this divorce decree on December 4, 1968, obtained by means of a false affidavit of defendant-appellant regarding his place of residence;

(d) the judgment by default rendered on October 1, 1970, in Panama, annulling the marriage in 1959 between the parties;

(e) the divorce proceedings instituted in Montreal on May 16, 1971 by respondent;

(f) dismissal of the divorce petition on December 29, 1972 by Desaulniers J. because of the annulment granted in Panama (an appeal is pending on this judgment).

Appellant concludes from the presentation of the facts thus made by plaintiff-respondent that the action cannot be considered an action in declaration of nullity, since by plaintiff’s own admission this had already been rendered.

Leaving aside for the moment appellant’s first proposition, relative to art. 70 C.C.P., I turn immediately to his second proposition. It should

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first be pointed out that in purely personal actions, the rule of jurisdiction is laid down in art. 68 C.C.P.: except for special cases set forth therein, it is the court of the defendant’s domicile, or failing this the court of his residence, which has jurisdiction.

On the strength of the description of the parties in the writ and the allegations of the declaration, both dated January 24, 1973, defendant-appellant seems to have been summoned before the competent court. The writ describes appellant as follows: “John Christopher Doyle, industrialist, of the City and District of Montreal, therein residing at 1115 Sherbrooke Street West”. The amended declaration alleges:

THAT at the time of their marriage, the parties were domiciled in the City of Montreal, Province of Quebec;

THAT the last residence of the parties was the City and District of Montreal;

At first glance, then, the summons seems to be in due form.

However, appellant submits that these are allegations only, that have been destroyed by the filing of a declinatory exception on February 6, 1973 stating:

The Defendant is a citizen of Canada and is ordinarily resident and domiciled in the City of Panama, Republic of Panama.

The Defendant has no residence within the jurisdiction of the Superior Court of the Province of Quebec.

All this is supported by his affidavit.

Appellant contends that once he denies the jurisdiction of the Superior Court in the case and supports the negation with his oath, the burden of proving that the Superior Court has in fact jurisdiction lies with plaintiff-respondent; and, appellant adds, respondent has not furnished such proof. In my opinion, appellant gives too much weight to the filing of a declinatory exception. It is too absolute and simplistic to claim that the mere filing of the exception places the burden of proof on the complaining party, as suggested by appellant. In a proper case, it will be necessary to determine whether the mere denial by defendant

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of the court’s jurisdiction is enough to require plaintiff to show that it has this jurisdiction.

It is not necessary to examine this question in the case at bar. The evidence as a whole easily enables us to conclude that the Superior Court in fact has jurisdiction.

To negate this jurisdiction we have only defendant-appellant’s affidavit, which without giving us any facts simply states that his domicile and residence are in Panama. This affidavit was signed in London and appellant was not cross-examined on this matter. This does not go very far, especially if we recall that this same deponent

(1) in 1959 swore a false oath in an attempt to give jurisdiction to the Alabama courts in the divorce proceedings instituted against his first wife;

(2) in 1970 obtained the judgment by default in Panama mentioned above, claiming he did not know where his wife was, when in fact he knew that she was still in the last common residence on the twenty-ninth floor of the Le Cartier, at the northwest corner of Sherbrooke and Peel streets in Montreal.

The least that can be said is that the affidavit submitted to us by appellant cannot carry much weight.

This is especially true as appellant, in proceedings arising from difficulties between the parties to the appeal at bar, also stated in the Supreme Court of Newfoundland in January 1974 that he was then a resident of Montreal, where he had his domicile (see 6 Nfld. & P.E.I.R. 110, and further at 6 Nfld. & P.E.I.R. 479 and 53 D.L.R, (3d) 315).

Other facts are disclosed by the record. In 1959, at the time of the marriage here in question, appellant claimed to be a United States citizen and described himself as being from Nassau, Bahamas. In 1968, in proceedings to set aside the Alabama divorce, appellant is described as a resident of Canada, and service of the summons by registered mail was made at the corner of Peel and Sherbrooke in Montreal, the record of the Alabama

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Court indicating that an acknowledgement of receipt was signed and that the letter was stamped “for delivery only to the person to whom addressed”. Lastly, in the proceedings in Panama in 1970, appellant described himself as a Canadian.

It should not be forgotten that in the divorce proceedings in Montreal, appellant is described as an “industrialist of the City and District of Montreal”. He did not challenge that description, but contested first the interim order for alimentary pension and then the divorce petition itself.

As he himself alleges in his exception, appellant is a Canadian citizen. It appears that he became so between 1959 and 1970. Under the Canadian Citizenship Act, R.S.C. 1970, c. C‑19, this constitutes at least a presumption that between these two dates his principal residence was established in Canada, where he then had the intention of establishing his domicile (s. 10).

Appellant is a Canadian citizen and he has a principal residence somewhere on this earth. From the evidence as a whole, it must be concluded that this principal residence is in Canada, and at the time in question it was in Montreal. It must therefore be concluded that even if the matter is governed by art. 68 C.C.P., as appellant contends, the action was brought before the competent court.

In view of this conclusion, it is not necessary to dwell on appellant’s propositions with respect to art. 70 C.C.P. If I had to do so, I would simply affirm the conclusions of the Court of Appeal, for like that Court, I believe we have here an action in declaration of nullity of marriage, and that art. 70 applies to absolute nullity as well as to relative nullity.

A final point remains which the parties have not discussed in this Court; does art. 70 C.C.P. lay down a rule of private international law, or merely an internal procedural rule for the purpose of dividing the workload between the districts of the Superior Court of Quebec? In view of my conclusion, I shall do as the parties have done and not analyse this aspect.

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I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Ahern, de Brabant, Nuss & Drymer, Montreal.

Solicitors for the respondent: Chait, Salomon, Gelber, Reis, Bronstein & Litvack, Montreal.