Court File and Parties
Date: November 5, 2018
Court File No.: D10941/17
Ontario Court of Justice
Between:
Jhon A. Puerta Urrutia Applicant
- and -
Magda Karina Triana Sanchez Respondent
Counsel:
- Claudia Falquez-Warkentin, for the Applicant
- Bradley F. Berns, for the Respondent
- Nav Rai, on behalf of the Office of the Children's Lawyer, for the children
Heard: October 31, 2018
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The issue before the court is whether it has jurisdiction to make a spousal support order, as requested by the respondent (the mother).
[2] The issue arises because a former spouse is not entitled to make an original application for support under the Family Law Act. See: Rothgiesser v. Rothgiesser; Marchenko v. Ghassan, 2018 ONCJ 74.[^1]
[3] The applicant (the father) obtained a divorce judgment in the Superior Court of Justice on October 20, 2017.[^2]
[4] The mother filed her Answer/Claim in this court claiming spousal support on November 10, 2017.
[5] The certificate of divorce from the Superior Court of Justice, signed on December 7, 2017, indicates that the divorce took effect on November 20, 2017.[^3]
[6] The court must determine whether the parties were still spouses when the mother issued her claim for spousal support on November 10, 2017. Did the granting of the divorce judgment on October 20, 2017 terminate the parties' spousal status, or did it continue until November 20, 2017?[^4]
Part Two – Discussion about the Relevant Legislation
[7] The Ontario Court of Justice only has jurisdiction to order spousal support pursuant to the Family Law Act. Section 30 of the Family Law Act reads as follows:
Obligation of spouses for support
- Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
[8] Subsection 1(1) of the Family Law Act defines spouse as follows:
"spouse" means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
[9] Section 29 of the Family Law Act extends the definition of spouse for the purpose of support. It reads as follows:
"spouse" means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children's Law Reform Act.
[10] However, section 29 of the Family Law Act does not extend spousal support obligations to former spouses who had children. See: Abernethy, supra, par. 10.
[11] To determine if the parties were still married to each other on November 10, 2017 (the date that the mother issued her claim for spousal support), the court will next look at the relevant provisions of the Divorce Act.
[12] Section 12 of the Divorce Act reads as follows:
Effective date generally
12(1) Subject to this section, a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered.
Marginal note: Special circumstances
(2) Where, on or after rendering a judgment granting a divorce,
(a) the court is of the opinion that by reason of special circumstances the divorce should take effect earlier than the thirty-first day after the day on which the judgment is rendered, and
(b) the spouses agree and undertake that no appeal from the judgment will be taken, or any appeal from the judgment that was taken has been abandoned,
the court may order that the divorce takes effect at such earlier time as it considers appropriate.
Marginal note: Effective date where appeal
(3) A divorce in respect of which an appeal is pending at the end of the period referred to in subsection (1), unless voided on appeal, takes effect on the expiration of the time fixed by law for instituting an appeal from the decision on that appeal or any subsequent appeal, if no appeal has been instituted within that time.
Marginal note: Certain extensions to be counted
(4) For the purposes of subsection (3), the time fixed by law for instituting an appeal from a decision on an appeal includes any extension thereof fixed pursuant to law before the expiration of that time or fixed thereafter on an application instituted before the expiration of that time.
Marginal note: No late extensions of time for appeal
(5) Notwithstanding any other law, the time fixed by law for instituting an appeal from a decision referred to in subsection (3) may not be extended after the expiration of that time, except on an application instituted before the expiration of that time.
Marginal note: Effective date where decision of Supreme Court of Canada
(6) A divorce in respect of which an appeal has been taken to the Supreme Court of Canada, unless voided on the appeal, takes effect on the day on which the judgment on the appeal is rendered.
Marginal note: Certificate of divorce
(7) Where a divorce takes effect in accordance with this section, a judge or officer of the court that rendered the judgment granting the divorce or, where that judgment has been appealed, of the appellate court that rendered the judgment on the final appeal, shall, on request, issue to any person a certificate that a divorce granted under this Act dissolved the marriage of the specified persons effective as of a specified date.
Marginal note: Conclusive proof
(8) A certificate referred to in subsection (7), or a certified copy thereof, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.
[13] Section 14 of the Divorce Act reads as follows:
Marriage dissolved
14 On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.
[14] It would appear from a plain reading of sections 12 and 14 of the Divorce Act that the parties remained spouses until their divorce became effective on the 31st day following the date of the divorce judgment unless there had been an appeal, a stay or a court order dispensing with the waiting period arising from a special circumstance, as set out in subsection 12(2). None of these exceptions applied in this case.
[15] The jurisprudence that will be reviewed below supports this interpretation.
Part Three – Discussion about the Jurisprudence
[16] In Harris v. Harris, the court stated that the dissolution of marriage under the terms of the divorce order itself became effective only when the order or judgment was made absolute; and this was so for all purposes. The court noted that many things could intervene which would prevent it from making the decree absolute.
[17] In Re Laur Estate, 1975 CarswellOnt 174 (Ontario Surrogate Court), the court had to determine the marital status of a widow for the purpose of determining her entitlement to relief under The Dependant's Relief Act. Her husband had died after the decree nisi of divorce had been granted, but before the decree absolute had become effective. The court found that she was a wife turned widow as the decree absolute had not been obtained. She was entitled to relief as a dependant.
[18] In Re Kindl Estate, 1982 CarswellOnt 340 (Ontario Supreme Court, High Court of Justice), the husband executed a will leaving the residue of his estate to his wife. The parties obtained a decree nisi which contained a release by the wife of any claims against the husband. The husband died before the divorce order became absolute. The court found that the wife was entitled to the entirety of the husband's estate. It followed Re Laur Estate and found that a decree nisi does not dissolve a marriage – the marriage relationship is not finally ended until a decree absolute is granted.
[19] The case of Iafrate v. Iafrate, 1990 CarswellOnt 258 (Unified Family Court) has similarities to the case at bar. The divorce judgment had been granted on November 27, 1986. On January 27, 1987, a Certificate of Divorce was issued stating that the marriage was dissolved by an order of the court which became effective on December 28, 1987. On December 20, 1988, the applicant commenced an application for equalization of net family property under the Family Law Act.
[20] The court in Iafrate had to determine when the marriage was "terminated by divorce" to decide if the application to equalize net family property under the Family Law Act was statute-barred.[^5] The court found that, based on the reading of sections 12 and 14 of the Divorce Act, the marriage was terminated on the date the divorce took effect and not the date judgment was given – the application to equalize net family property was not statute-barred.
[21] In Pennock v. Pennock, 2000 CarswellOnt 4300 (SCJ), counsel for the wife sent a draft divorce judgment to counsel for the husband, who delayed in approving it as to form and content for 6 months. The wife obtained a mortgage more than 31 days after the divorce judgment had been made and represented to the lender that she was not a spouse. The husband challenged the validity of the mortgage. He argued that the divorce had not been finalized because the formal divorce judgment had not been taken out and that his wife was unable to obtain the mortgage without his consent. The court asked the following question:
Is it possible to be divorced despite the fact the formal divorce judgment has not been approved, signed and entered? To put it another way, is a divorce effective after 31 days have expired following the endorsement of a trial or motion record without any further action by either party?
[22] The court in Pennock dismissed the father's claim and found that the parties' divorce was effective 31 days after the divorce judgment, regardless of whether the order had been taken out. It wrote at paragraph 17:
17 I am satisfied that the focus of the Divorce Act is on the date upon which a divorce takes effect. Section 12(1) reads, "Subject to this section, a divorce takes effect on the 31st day after the date on which the judgment granting the divorce is rendered." The Act specifically allows for special circumstances such as the Court shortening the 31-day period, provided the spouses agree that they will not appeal the decision, and further s. 12(3) where the effective date when there has been appeal is at the end of the expiration of time fixed by law for instituting an appeal from the decision on that appeal. There was no appeal in this case on the divorce itself.
[23] In Minister of Social Development v. Riddell, 2006 CarswellOnt 6120, the parties had obtained a divorce judgment that became effective on December 15, 2001. The husband passed away on December 15, 2001 at 5 a.m. The wife applied for spousal survivor benefits. The court denied her claim stating that she became divorced at the stroke of midnight on December 14, 2001 – she was a divorced person instantly thereafter (see par. 16). The logical inference from this determination is that she remained a spouse until that time.
[24] In White v. White, 2015 ONCA 647, the husband had obtained a divorce judgment. The wife's answer opposing the divorce on substantive grounds had not been brought to the judge's attention. Before the divorce became final, the wife brought a motion and obtained an order staying the divorce order. The husband died while the stay was in effect. Following the husband's death, a dispute arose between the wife and some of the husband's children as to whether the marriage was terminated by death or by divorce. The wife brought a motion for an order discontinuing or terminating the divorce order, or in the alternative, for a declaration that she and her husband had not been divorced, and that their marriage was terminated upon his death. This motion was dismissed and the wife appealed.
[25] The Court of Appeal in White made the following determinations:
a) The divorce order did not dissolve the marriage.
b) Section 14 of the Divorce Act provides that it is on taking effect that a divorce granted under the Divorce Act dissolves the marriage of the spouses.
c) In the ordinary course, the effect of subsection 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.
d) Since the stay was in effect when the husband died, it follows that it was his death that ended the marriage.
e) The divorce order that was granted in error was permanently stayed.
Part Four – Conclusion
[26] The court makes the following determinations:
a) The parties remained spouses when the divorce judgment was granted on October 20, 2017.
b) The parties ceased to be spouses when the divorce judgment took effect on November 20, 2017 – 31 days after the making of the divorce judgment.
c) The parties were still spouses, as defined in section 29 of the Family Law Act, when the mother issued her claim for spousal support on November 10, 2017.
d) This court has jurisdiction to hear the mother's claim for spousal support.
[27] The court thanks counsel for the mother for his excellent presentation of the law.
Released: November 5, 2018
Justice S.B. Sherr
Footnotes
[^1]: The Ontario Court of Justice has jurisdiction to change a spousal support order that was made while the parties were still spouses. It also has jurisdiction to change a domestic agreement for spousal support that has been filed with the court pursuant to section 35 of the Family Law Act, if the agreement had been completed while the parties were still spouses. See: Francisco v. Francisco, 2017 ONCJ 323; Abernethy v. Peacock.
[^2]: The divorce judgment did not contain any terms of corollary relief.
[^3]: The court was advised by the father about the divorce proceeding for the first time in a case conference brief that he filed for the August 10, 2018 case conference. The mother claimed that she had no prior knowledge of the divorce proceeding and was surprised that a divorce judgment had been granted.
[^4]: The Certificate of Divorce states that the parties' marriage was dissolved by the order of the court made on October 20, 2017. It also states that the divorce took effect on November 20, 2017.
[^5]: The claim to equalize net family property had to be commenced within two years of the day the marriage was terminated by divorce or judgment or nullity under the Family Law Act. In Iafrate, if the court had decided that the marriage ended on the date of the divorce judgment the claim would have been statute-barred.