COURT FILE AND PARTIES
COURT FILE NO.: FD1089/11
DATE: January 25, 2012
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Adam Keith Corey, applicant
AND:
January Lynn Boucher, respondent
BEFORE: MITROW J.
COUNSEL: Christos Vitsentzatos for the applicant
HEARD: in chambers, no one appearing
ENDORSEMENT
ISSUE
[1] I am providing these reasons in the somewhat unusual circumstances of this matter where I had previously required a new clearance certificate to be issued by the central registry of divorce proceedings (“central registry”). The central registry apparently takes the position that a new clearance certificate is not necessary. I disagree.
BRIEF BACKGROUND
[2] The applicant commenced an application in London seeking a divorce simpliciter . The application was issued June 28, 2011.
[3] As appears from the affidavit of service, the respondent was personally served with the application on June 28, 2011. The respondent has failed to file an answer and is not entitled to any further notice of steps in this case and is not entitled to participate in this case in any way (see r. 10(5) of the Family Law Rules , O. Reg. 114/99).
[4] As a result of this matter being undefended, the applicant filed various documents as required pursuant to R. 36 to obtain an undefended divorce.
[5] On September 9, 2011, this matter came before me in chambers as “basket motion.”
[6] At that time, I made the following endorsement:
The clearance certificate date is June 17/2011. However the application was issued June 28, 2011. The Clearance Certificate incorrectly shows “June 6/2011” as the Application date. New clearance certificate needs to be obtained with a clearance date after June 28/2011. [1]
[7] This matter now returns before me in chambers. Attached to the continuing record were a series of emails between the registrar in London and the central registry, wherein the latter was advised of my endorsement. The registrar in London wanted to know (according to the emails) whether the clearance certificate they have was “okay” or whether another one would have to be issued.
[8] On January 5, 2012, the following response was received by the registrar at London from the central registry: “No you do not need a new Clearance, we take the file date to do the matching process and not the signature date.”
[9] The author of this email was Ms. Michelle McMillan, Program manager, Department of Justice, Family Law Assistance Services in Ottawa.
DISCUSSION
[10] The clearance certificate in the present case was signed by Michelle McMillan.
[11] The information set out in the clearance certificate contains first the filing location (in this case, London, Ontario), secondly the court number (in this case, 3522), thirdly the divorce registry number (in this case, 45165), fourthly the “date application filed,” which in this case is shown on the clearance certificate as June 8, 2011 and lastly the “clearance date” which is shown on the clearance certificate as June 17, 2011. The clearance certificate then shows the surname and given names of each of the applicant and the respondent and is signed by the “manager.”
[12] Also relevant is the statement on the clearance certificate. I quote this statement in full:
The information contained on the registration of divorce proceeding form indicated hereunder was verified after all courts offices had provided the Central Registry of Divorce Proceedings their registration forms as of the clearance date indicated below . No pending divorce proceeding [sic] are recorded in the Central Registry as being filed by either of the spouses identified hereunder or both, prior to the application date indicated below in a court located in the same province or outside the province specified on the clearance certificate. [ my emphasis ]
[13] The necessity of obtaining a clearance certificate from the central registry arises because of ss. 3(2) and 3(3) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] which are reproduced below and are as follows:
Jurisdiction where two proceedings commenced on different days
(2) Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued.
Jurisdiction where two proceedings commenced on same day
(3) Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.
[14] The Central Registry of Divorce Proceedings Regulation , SOR/86-600 [as am.] was enacted to create the central registry.
[15] The establishment of the central registry and the operation of the central registry is described in ss. 3 to 9 inclusive of this regulation and, for convenience, the sections are reproduced below:
3(1) A central registry of divorce proceedings is hereby established and shall be located in the city of Ottawa in the Province of Ontario.
(2) A record of pending divorce proceedings in Canada shall be maintained in the central registry and shall consist of the information contained in the registration forms that are received at the central registry.
- On the day that an application for divorce is filed, the registrar of the court in which the application is filed shall, on receipt of the fee prescribed in the Central Registry of Divorce Proceedings Fee Order
(a) assign to the application a number, to be known as a divorce registry number, that next follows in sequence the number assigned to the last preceding application for divorce filed in that court; and
(b) in respect of the application, complete Part 1 of the registration form and send it to the central registry by mail or electronic means.
5(1) On receipt of Part 1 of a registration form sent pursuant to section 4, an officer of the central registry shall
(a) check if the divorce registry number of the form is in the numerical sequence and if not, advise the appropriate registrar thereof, in writing, and request that within seven days thereafter the central registry be
(i) informed of the reason for the lack of numerical sequence, or
(ii) provided with the missing form or forms; and
(b) enter the information contained in the registration form in the record referred to in subsection 3(2).
(2) Where the record referred to in subsection 3(2) , indicates that two divorce proceedings are pending between the spouses referred to in a registration form, an officer of the central registry shall send written notification to that effect, including the information contained in the record in respect of those proceedings
(a) to the registrar of each court in which the applications for a divorce have been filed by the spouses, where the applications were not filed on the same day; or
(b) to the registrar of each court in which the applications for a divorce have been filed by the spouses and the Registry of the Federal Court, where the applications were filed on the same day.
(3) Where the record, referred to in subsection 3(2) indicates that no other divorce proceedings are pending between the spouses referred to in a registration form, an officer of the central registry shall send written notification to that effect to the registrar of the court in which the application for divorce has been filed.
(4) A notification referred to in subsections (2) and (3) may be in the form of an endorsement on the relevant registration form, on a separate notice, or in electronic form.
(5) A notification referred to in subsection (3) is valid for a period of six years beginning on the day on which it is sent.
(6) If the divorce proceeding has not been discontinued or dismissed or if no judgment granting the divorce in respect of the divorce proceeding has taken effect, the central registry, on the request of the appropriate registrar, shall renew the notification referred to in subsection (3) and send the renewal of the notification to the appropriate registrar.
(7) Any renewal of a notification referred to in subsection (3) may be in the form of an endorsement on the registration form, on a separate notice or in electronic form and is valid for a period of six years beginning on the day on which it is sent.
- On receipt of a notification pursuant to subsection 5(2) or (3), a registrar of a court shall
(a) place the notification with the relevant application for divorce; and
(b) where two divorce proceedings are pending between the spouses referred to in the notification, inform the spouse who filed the application for divorce in the court of the other application.
Within seven days after the discontinuance of a divorce proceeding or the taking effect of the dismissal or judgment in respect of a divorce proceeding, the appropriate registrar shall complete Part 2 of the registration form and send it to the central registry by mail or electronic means.
On receipt of Part 2 of a registration form sent pursuant to section 7, an officer of the central registry shall enter the information contained in the registration form into the record that is maintained under subsection 3(2).
For the sole purpose of record keeping by the central registry, a divorce proceeding shall be presumed, in the absence of evidence to the contrary, to be discontinued, if the central registry does not receive Part 2 of the registration form or any request for renewal of the notification, by the end of the six-year period referred to in subsection 5(5) or (7).
[16] Also relevant is r. 36(4) paragraph 2 of the Family Law Rules which states as follows:
The court shall not grant a divorce until the following have been filed:
A report on earlier divorce cases started by either spouse, issued under the Central Registry of Divorce Proceedings Regulations (Canada).
[17] This rule is mandatory. The court shall not grant a divorce until a clearance certificate has been obtained.
[18] The purpose of the clearance certificate is to advise the court in the location where a divorce proceeding has been commenced as to the existence of any other divorce proceedings commenced between the same parties anywhere else in Canada.
[19] Where two divorce proceedings have been commenced between the same parties in different locations in Canada, then pursuant to s. 3(2) of the Divorce Act , the court in which the first proceeding was commenced has exclusive jurisdiction to hear and determine any divorce proceeding. If divorce proceedings are commenced on the same day, and neither proceeding is discontinued within 30 days, then the Federal Court has exclusive jurisdiction to deal with the divorce proceeding.
[20] Having regard to the aforementioned provisions of the Divorce Act and the regulation implementing the central registry, the reason for a clearance certificate is clear. In granting a divorce, the court has to rely on the clearance certificate in order to determine that the court has exclusive jurisdiction to deal with the divorce proceeding. The court cannot determine whether it has exclusive jurisdiction unless the clearance certificate provides the court with the necessary information. This means the clearance certificate must tell the court that no other divorce proceeding has been commenced between the same parties prior to the date the divorce proceeding was commenced in that court.
[21] Accordingly, the date the proceeding was commenced (referred to as the “date application filed” in the clearance certificate) and the clearance date become important.
[22] In the present case, the clearance date is shown to be June 17, 2011. From the wording of the clearance certificate itself, the person who signed the clearance certificate is telling the court that as of June 17, 2011 there is “no pending divorce proceeding” recorded in the central registry prior to the application date, which in this case is stated to be June 8, 2011.
[23] I cannot rely on this clearance certificate for two reasons. The first reason is that the application date is shown to be June 8, 2011, whereas in fact the divorce proceeding was commenced June 28, 2011. Secondly, pursuant to the wording of the clearance certificate itself, it states that the information contained therein is as of the “clearance date.” The clearance date is shown to be June 17, 2011, which is 11 days prior to the commencement of the divorce proceeding.
[24] In the present case, for example, if another divorce proceeding between these two parties was commenced after June 17, 2011 and before June 28, 2011, then the court in which that divorce proceeding was commenced would have exclusive jurisdiction pursuant to s. 3(2) of the Divorce Act . Hence, I am unable to rely on this clearance certificate to ensure compliance with s. 3(2) and (3) of the Divorce Act .
[25] In order to be able to properly rely on a clearance certificate, the date of commencement of divorce proceedings must be correctly shown therein, and the clearance date in the clearance certificate should be on or after the date that the divorce proceeding was commenced.
[26] Given s. 4 of the Regulations , which requires the registrar of the court to complete part 1 of the registration form on the day that an application for a divorce is filed, it is unclear how a clearance certificate can be prepared where the clearance date is a date prior to the commencement of the divorce proceeding as has happened in the present case. The Regulations are clear, and contemplate, that an officer of the central registry is to respond on receipt of part 1 of the registration form, which would be after the date a divorce proceeding has been commenced.
ORDER
[27] For the foregoing reasons, I make the following order:
A copy of this endorsement shall be forwarded forthwith by the registrar at London to the Central Registry of Divorce Proceedings in Ottawa, Ontario and to Mr. Vitsentzatos, counsel for the applicant;
The Central Registry of Divorce Proceedings shall forthwith provide a clearance certificate to the registrar at London, which said certificate shall show June 28, 2011 as the “Date Application Filed” and which shall show the “Clearance Date” as being on or after June 28, 2011 and this clearance certificate shall be forwarded by Michelle McMillan or any other officer at the Central Registry of Divorce Proceedings;
If the applicant or anyone at the Central Registry of Divorce Proceedings wishes to make any further submissions regarding this matter, including submissions as to whether any portion of the order made should be reviewed or amended or reconsidered, then he or she shall contact the Family Court trial coordinator at London no later than 14 days following the date of this order and the trial coordinator shall fix a hearing before me at 9:30 a.m. to hear any further submissions;
Following the issuance of a clearance certificate, as ordered herein, this file shall be forwarded to me in chambers to deal with the granting of a divorce;
If the trial coordinator is not contacted within 14 days, then at any time thereafter the applicant is at liberty to have this order signed by the clerk.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: January 25, 2012
[^1]: The reference in my endorsement to “June 6, 2011” is incorrect. The reference should have been to “June 8, 2011.”