Powell v. Cockburn

Powell v. Cockburn

The Supreme Court allowed the appeal, reinstated the trial judge's findings that Cockburn lacked Michigan domicile/residence and that the Michigan decree was procured by jurisdictional fraud and therefore should not be recognized; the Court held the presumptions were exhausted by evidence and the ultimate burden remained on the plaintiff; further held s.1 of the Matrimonial Causes Act permits maintenance claims in actions declaring nullity including void marriages and referred the maintenance claim back to the Ontario court for determination.

Citation
[1977] 2 SCR 218
Parties
Appellant/plaintiff: George Hubert Powell; Respondent/defendant: Viola M. Cockburn
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 April 1976
Procedural Posture
Family Law Divorce/nullity (conflict of Laws) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario
Outcome
Appeal allowed; judgment of Court of Appeal for Ontario set aside; trial judgment of Cromarty J. reinstated; Judson J. dissenting.
Legal Topics
Recognition of Foreign Divorce Decrees, Domicile and Jurisdiction, Fraud in Obtaining Judgments, Presumptions and Burden of Proof, Maintenance Under Matrimonial Statute
Source Language
English
Conflict of Laws Family Law Evidence International Law Recognition of Foreign Divorce Decrees Domicile and Jurisdiction Fraud in Obtaining Judgments Presumptions and Burden of Proof +1 more

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Parties

George Hubert Powell

Appellant/plaintiff

Viola M. Cockburn

Respondent/defendant

Procedural Posture

Family Law Divorce/nullity (conflict of Laws) / Appeal to Supreme Court of Canada From Court of Appeal for Ontario

Legal Issues

  1. 1 Whether the Ontario marriage was void for bigamy due to a subsisting Michigan divorce of the wife
  2. 2 Whether the Michigan divorce decree should be recognized in Ontario
  3. 3 Whether Cockburn was domiciled/resident in Michigan for jurisdictional purposes

Ratio Decidendi

The Supreme Court allowed the appeal, reinstated the trial judge's findings that Cockburn lacked Michigan domicile/residence and that the Michigan decree was procured by jurisdictional fraud and therefore should not be recognized; the Court held the presumptions were exhausted by evidence and the ultimate burden remained on the plaintiff; further held s.1 of the Matrimonial Causes Act permits maintenance claims in actions declaring nullity including void marriages and referred the maintenance claim back to the Ontario court for determination.

Court Disposition

Appeal allowed; judgment of Court of Appeal for Ontario set aside; trial judgment of Cromarty J. reinstated; Judson J. dissenting.

Orders

  • Appeal allowed
  • Judgment of the Court of Appeal for Ontario set aside