76-T-601
Katherine Reinhold Williamson (Applicant)
v.
Hugh Anthony Williamson (Respondent)
Trial Division, Mahoney J.—Toronto, March 22;
Ottawa, March 24, 1976.
Practice—Divorce—Simultaneous petitions for divorce in
different courts—Motion to remove actions into this Court—
Parties most clearly associated with Province of Newfound-
land—Application of Newfoundland Divorce Rules—Divorce
Act, R.S.C. 1970, c. D-8, s. 5(1),(2)(b) as am. by Federal Court
Act, Sch. 11—Federal Court Rules 438, 1086—Newfoundland
Divorce Rules, 1969, ss. 3(2), 14.
Applicant and respondent filed simultaneous divorce peti
tions in Ontario and Newfoundland respectively. A motion was
brought to remove the actions into this Court.
Held, the motion is granted. Applicant has filed, under
section 5(2)(b) of the Divorce Act, an affidavit exhibiting
copies of both petitions. Neither has been discontinued, and
both establish that each court would otherwise have jurisdic
tion. As required by Rule 1086, it is specified that Newfound-
land is the province with which the parties are or have been
most clearly associated. Thus, the Divorce Rules, 1969, of the
Supreme Court of Newfoundland will apply. It is a necessary
modification to Rule 14 of the Divorce Rules that Federal
Court Rule 483 applies to the arrangement for the hearing. As
Rule 12 of the Divorce Rules provides for the filing and service
of the answer to the petition within a time that could not have
been met, the petition filed in the Newfoundland court is
deemed the originating document; applicant must file and serve
her answer on or before April 5, 1976. Since the Divorce Rules
do not make provision for discovery and the clear intention of
Federal Court Rule 1086(2) is to make applicable only the
Divorce Rules of the provincial court, not its general rules, it
follows that recourse should be to the Rules of this Court.
Thus, discovery by written interrogatories will not follow by
virtue of incorporation in the Divorce Rules of the Rules of the
Supreme Court of Newfoundland, if that is their effect. An
order will be required under Rule 466A.
MOTION.
COUNSEL:
T. G. Bastedo for applicant.
W. A. D. Miller for respondent.
SOLICITORS:
Bastedo, Copper, Kluwak, Caroe & Shos-
tack, Toronto, for applicant.
Weir & Foulds, Toronto, for respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The applicant and respondent are
wife and husband. The applicant filed a petition
for divorce in the Supreme Court of Ontario on
February 2, 1976. The respondent filed a petition
for divorce in the Supreme Court of Newfound-
land the same day.
The Divorce Act' provides:
5. (1) The court for any province has jurisdiction to enter
tain a petition for divorce and to grant relief in respect thereof
if,
(a) the petition is presented by a person domiciled in
Canada; and
(b) either the petitioner or the respondent has been ordinar
ily resident in that province for a period of at least one year
immediately preceding the presentation of the petition and
has actually resided in that province for at least ten months
of that period.
(2) Where petitions for divorce are pending between a hus
band and wife before each of two courts that would otherwise
have jurisdiction under this Act respectively to entertain them
and to grant relief in respect thereof,
(b) if the petitions were presented on the same day and
neither of them is discontinued within thirty days after that
day, the Federal Court—Trial Division has exclusive juris
diction to grant relief between the parties and the petition or
petitions pending before the other court or courts shall be
removed, by direction of the Federal Court—Trial Division,
into that Court for adjudication.
The applicant has filed, in support of her motion
for directions under section 5(2)(b), an affidavit
exhibiting copies of the petitions filed in both
provincial supreme courts. Neither has been dis
continued and both establish that each of those
courts would otherwise have jurisdiction. Accord
ingly, the motion to remove the actions into this
Court is to be granted.
The Rules of this Court provide:
' R.S.C. 1970, c. D-8 as amended by Schedule II of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
Rule 1086. (1) When the Trial Division makes a direction
under section 5(2) of the Divorce Act that petitions pending
before other courts be removed into the Trial Division, it shall,
by the direction, specify the province with which the husband
and wife are or have been most closely associated according to
the facts appearing upon the petitions as contemplated by
section 20 of the Divorce Act.
(2) Subject to paragraph (3), the rules made under the
Divorce Act by the Court for the province specified under
paragraph (1) by an order removing petitions into the Trial
Division, shall be applicable, with necessary modifications, to
the future conduct of the proceedings in the Trial Division.
(3) Either at the time when the application is made for a
direction under subsection (2) of section 5 of the Divorce Act,
or at any subsequent time, an application may be made by any
of the parties to the proceedings for a direction providing for a
variation in, or addition to, the Rules as determined by para
graph (2) for the future conduct of the proceedings in the Trial
Division.
The applicant and respondent took up residence in
Newfoundland late in 1967. The respondent still
lives there. The applicant moved to Ontario in
August, 1974. There is no indication that the
respondent has ever lived in Ontario. As required
by Rule 1086, I specify that Newfoundland is the
province with which they are or have been most
closely associated. By virtue of that finding, the
Divorce Rules, 1969 of the Supreme Court of
Newfoundland will apply to future proceedings.
They are hereafter referred to as "the Divorce
Rules".
Rule 14 of the Divorce Rules provides for the
hearing of divorce petitions in terms suitable to a
court holding regular scheduled sittings in the
province. Clearly, it is a necessary modification to
the Divorce Rules that Rule 483 of the General
Rules and Orders of this Court apply to the
arrangement for the hearing in these proceedings
rather than paragraphs (1),(2) and (3) of Rule 14.
Paragraph (4) of Rule 14 should be observed when
application is made under Rule 483.
Rule 12 of the Divorce Rules provides for the
filing and service of the answer to the petition
within a time that could not, in the peculiar cir
cumstances that pertain, have practically been
met. While what is alleged in both petitions indi
cates of a great deal of common factual ground, it
is preferable that the pleadings proceed in a way
that undisputed facts are clearly and unequivocally
defined by admissions. Accordingly, I will order
that the petition filed in the Supreme Court of
Newfoundland be deemed to be the originating
document for purposes of future proceedings and
that the applicant file and serve her answer on or
before April 5, 1976. Service may be effected on
the Toronto agents of the respondent's St. John's
solicitors, said agents having appeared at the hear
ing of this application.
Counsel say, and the two petitions appear to
confirm, that the only real issue at the hearing will
be custody of the parties' children. As a result it
was submitted that, if at all possible, the proceed
ings should be scheduled so that final judgment
may be rendered before the start of the next school
year. They were not, however, in agreement on the
manner discovery should be conducted. I reserved
this matter and have now concluded that, in the
absence of agreement, I should not now deal with
it.
Rule 3(2) of the Divorce Rules provides:
Subject to these rules and to any enactment dealing with
matrimonial causes, in all matters, other than those dealt with
in these rules, the practice and procedure in matrimonial causes
shall be governed by the Rules of the Supreme Court of
Newfoundland relating to civil proceedings insofar as they,
with the necessary modifications, can be made applicable.
Since the Divorce Rules do not, themselves, make
provision for discovery, I take it that the assump
tion of counsel, at the hearing of this application,
that discovery would be conducted by written
interrogatories, rather than viva voce, stems from
the Rules of the Supreme Court of Newfoundland
thus incorporated in the Divorce Rules. It seems to
me that the clear intention of Rule 1086(2) of this
Court is to make applicable only the divorce rules
of the court of the province with which the parties
are found to have been most closely associated, not
its general rules. It follows that when recourse is to
be had to general rules, it should be to the general
rules of this Court rather than of the provincial
supreme court. That being so, discovery by way of
interrogatories requires an order under Rule 466A
of this Court; it will not follow as a matter of
course by virtue of incorporation in the Divorce
Rules of the Rules of the Supreme Court of New-
foundland if, indeed, that is their effect.
Finally, future proceedings in this Court are the
result of the removal here of proceedings properly
commenced in other jurisdictions; they are not
proceedings initiated here. Accordingly, I direct
that the title of the future proceedings in this
Court be as follows:
IN THE MATTER OF the Divorce Act
— and
IN THE MATTER OF an action in the Supreme Court of Ontario
between Katherine Marsh Reinhold Williamson, Petitioner,
and Hugh Anthony Williamson, Respondent;
, — and
IN THE MATTER OF an action in the Supreme Court of New-
foundland between Hugh Anthony Williamson, Petitioner,
and Katherine Reinhold Williamson, Respondent.
The costs of and incidental to this application
are reserved to be disposed of by the trial judge.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.