COURT OF APPEAL FOR ONTARIO

CITATION: White v. White, 2015 ONCA 647

DATE: 20150925

DOCKET: C59752

Feldman, Simmons and Miller JJ.A.

BETWEEN

Neville Alphonso White

Respondent

and

Sonia White

Appellant

Matthew Tubie, for the appellant

Lance Carey Talbot, for Melville White and Karen White

Heard: August 26, 2015

On appeal from the order of Justice Eva Frank of the Superior Court of Justice, dated November 20, 2014.

ENDORSEMENT

[1] The appellant Sonia White and Neville White were married. At the request of the husband, a divorce was granted on June 10, 2013 by Paisley J. Unfortunately, the Answer opposing the divorce on substantive grounds was not brought to the attention of Paisley J. Before the divorce became final, the appellant brought a motion and obtained an order on July 4, 2013 from Herman J. staying the Divorce Order “pending further court order”. While the stay remained in effect, Mr. White died.

[2] Following Mr. White’s death, a dispute arose between the appellant and some of Mr. White’s children, the respondents in this appeal, as to whether the marriage was terminated by death or by divorce.

[3] The appellant eventually brought a motion for an order “discontinuing or terminating the divorce order granted by the order of Justice Herman [sic] dated June 10, 2013”.

[4] She applied in the alternative for a declaration that she and Mr. White had not been divorced, and that their marriage was terminated upon his death.

[5] The motion judge, whose decision is appealed here, dismissed the motion. In essence she found that Rule 11.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, was a bar to the motion and that a declaration was not the appropriate remedy as the issued orders speak for themselves.

[6] On appeal, the appellant asks that the order of the motion judge be set aside (including costs awarded to Karen White), and that this court make a declaration that her marriage to Mr. White was terminated by his death.

[7] At the hearing of the appeal, the respondents, two of Mr. White’s children, Melville White and Karen White, who were served with the motion in the court below, requested that the stay of the Divorce Order be lifted with retroactive effect.

(i) Analysis

[8] Although this endorsement is given in the context of an appeal from the order of Frank J., it is intended to clarify all orders in these proceedings, including the ex parte order of Perkins J. dated February 4, 2015 made after the order under appeal.

[9] The Divorce Order did not dissolve the marriage.

[10] Section 14 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that “[o]n taking effect, a divorce granted under this Act dissolves the marriage of the spouses.”

[11] In the ordinary course, the effect of s. 12(1) of the Divorce Act is that a divorce takes effect on the 31st day following the judgment granting the divorce. In the intervening period, the parties are still married. If one of the parties dies during that period, the judgment granting the divorce cannot take effect: see Re Kindl (1982), 1982 2049 (ON SC), 39 O.R. (2d) 219 (S.C.), at p. 224; L. (M.) v. C. (J.-P.) (1997), 1997 10775 (QC CA), 145 D.L.R. (4th) 739 (Que. C.A.), at p. 740.

[12] In this instance, the Divorce Order had been stayed until further order of the court, which prevented it from taking effect and from dissolving the marriage.

[13] At the time of Mr. White’s death, the stay had not been lifted and the parties were still married. It follows that it is Mr. White’s death that ended the marriage.

[14] The only relief sought in the divorce application was a termination of the parties’ marriage through divorce. The marriage having been terminated by the death of Mr. White, the Divorce Order that was granted in error should become permanently stayed. In these circumstances, no order to continue is necessary.

(ii) Disposition

[15] The appeal is allowed, the order of Frank J. is set aside, and the Divorce Order is permanently stayed. This order is without prejudice to any relief that the appellant may seek to claim against the estate of Mr. White. The costs order below is set aside. Costs of the appeal and the proceeding below are granted to the appellant in the amount of $2,500 inclusive of disbursements and HST.

“K. Feldman J.A.”

“J. M. Simmons J.A.”

"B. W. Miller J.A."