Willenbrecht v. Willenbrecht

Willenbrecht v. Willenbrecht Collection Decisions of the Court of Appeal Date 1999-05-19 Docket numbers M24212 Judges Charron, Louise Vivianne Subject Family Decision Content DATE: 19990519 DOCKET: M24212 COURT OF APPEAL FOR ONTARIO CHARRON J.A. (In Chambers) BETWEEN: ) ) Bonnie Sue Willenbrecht, ALBERT HELMUT WILLENBRECHT ) the appellant, in person ) Petitioner ) (Respondent) ) ) Albert Helmut Willenbrecht, - and - ) the respondent, in person ) BONNIE SUE WILLENBRECHT ) ) Respondent ) (Appellant) ) Heard: April 30, 1999 ) CHARRON J.A.: [1] Bonnie Sue Willenbrecht and Albert Helmut Willenbrecht were divorced by a judgment dated May 13, 1997. O’Connell J. granted the divorce pursuant to the terms of Minutes of Settlement agreed upon by the parties. Mrs. Willenbrecht seeks an order extending the time for appealing the divorce judgment. [2] This motion was heard on April 30, 1999. On May 5, 1999, I dismissed the motion for reasons to follow. These are those reasons. [3] Mrs. Willenbrecht seeks to appeal the judgment solely on the ground of jurisdiction. She submits that the Ontario court may not have had jurisdiction to grant the divorce because, at the time the divorce was granted, another petition was pending before the courts in Alberta. The Alberta proceedings had been commenced before the proceedings were commenced in Ontario. Mrs. Willenbrecht relies on the strict wording of s.3(2) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 in support of her proposed appeal. That section reads as follows: 3(2) Jurisdiction where two proceedings commenced on different days – 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. [4] Both parties appeared in person to argue this motion. Although Mrs. Willenbrecht still wishes to be divorced, she states that she is bringing this motion out of concern that her marital status may be questioned in the future. Mr. Willenbrecht opposes the motion. He takes the position that the divorce judgment is valid and he questions Mrs. Willenbrecht’s good faith in bringing this motion. He is anxious to have the matter settled since he intends to remarry. [5] The history of the proceedings does indeed raise serious concerns about Mrs. Willenbrecht’s good faith. [6] The parties were married in 1986 and had a son in 1990. In 1992, they separated, at which time Mrs. Willenbrecht moved from Ontario to Calgary with the child. Mr. Willenbrecht remained in Ontario. In February 1995, Mrs. Willenbrecht filed a petition for divorce in Alberta. In June 1995, she moved back to Toronto with the child. In September 1995, Mr. Willenbrecht filed a petition for divorce in Ontario. [7] On April 28, 1997 Benotto J. of the Ontario Court of Justice (General Division), on a motion brought by Mr. Willenbrecht for access to the child (amongst other things), held that the court in Ontario now had jurisdiction because the parties and the child lived in Ontario. This jurisdiction is provided for in s.3(1) of the Divorce Act: 3(1) Jurisdiction in divorce proceedings – A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. [8] Section 6(1) further provides that a divorce proceeding may be transferred to a court in another province where the proceeding involves a custody and access contest and the child of the marriage is most substantially connected with that other province. Benotto J. held that the child was “clearly more substantially connected to Ontario than Alberta” and that the trial should be in Ontario. [9] By its wording, s.6(1) appears to contemplate that an application for transfer be brought in the jurisdiction in which the divorce proceedings were first commenced – in this case in Alberta. However, in her reasons for decision, Benotto J. noted that “the parties have very limited financial resources” and that “the husband cannot afford to bring a motion in Calgary to have the matter transferred to Toronto”. Both parties expressed a desire to have the matter finalized expeditiously. Benotto J. agreed and, on consent of both parties, set the matter down for trial during the week of May 19, 1997. [10] On May 12, 1997 both parties appeared before Benotto J. Mrs. Willenbrecht was represented by counsel and agreed in writing that the Alberta proceedings would be transferred to Toronto. The parties also agreed that Mrs. Willenbrecht would have custody of the child with generous access to the father. Both parties signed Minutes of Settlement. The Minutes of Settlement formed the basis of the divorce judgment which was granted on consent on May 13, 1997 by O’Connell J. The first paragraph of the divorce judgment reads as follows: 1. This Court orders and adjudges that the Divorce proceedings instituted in the Court of the Queen’s Bench of Alberta in the Judicial District of Calgary by Bonnie Willenbrecht is hereby transferred to Toronto. [11] Mrs. Willenbrecht never sought an order transferring the Alberta proceedings to Ontario. A certificate of divorce was issued on September 18, 1997. The parties abided by the terms of the divorce judgment for about one year until May, 1998 when Mrs. Willenbrecht, without notice to Mr. Willenbrecht, moved back to Alberta with the child, effectively thwarting his access rights. On May 22, 1998, Mr. Willenbrecht obtained an order from O’Connell J. directing that if the child was not returned to Ontario within fourteen days Mr. Willenbrecht would be granted custody. [12] Subsequently, Mrs. Willenbrecht attempted to pursue the divorce proceedings in Alberta and, for the first time, brought into question the validity of the Ontario judgment. She sought a declaration from the Alberta court that the Ontario proceedings were invalid. Martin J. denied her request. In his reasons dated November 18, 1998, he ruled that any challenge to the validity of the Ontario divorce must be brought to the Court of Appeal for Ontario. Mrs. Willenbrecht also requested that the Alberta petition for divorce be granted. Martin J. refused to grant the relief sought. He noted that by her written agreement and her subsequent conduct, Mrs. Willenbrecht had “ceded jurisdiction to the Ontario court” and that [b]reach of that undertaking cannot now be relied upon to resurrect the Alberta action and become the basis of this court asserting the jurisdiction it once had. To permit any party to manipulate the process and the court in this way would be a prescription for mischief which cannot be tolerated. In his view, the only question left to be determined by the court in Alberta was whether the Alberta file should be transferred to Ontario or whether it should be deemed to be discontinued. [13] Several factors must be considered on this motion to extend the time to appeal, including the existence of a bona fide intention to appeal, the length of the delay, the prejudice to the other party and the merits of the proposed appeal. [14] In my view, Mrs. Willenbrecht’s conduct alone provides ample reasons to deny her motion. I agree entirely with Martin J.’s comments that the courts cannot permit Mrs. Willenbrecht's attempts to manipulate the process and the courts. It would be nothing short of scandalous if she were allowed to rely on her breach of undertaking to form the grounds of an appeal from a judgment that is otherwise unimpeachable. [15] Further, it is my view that, in the circumstances of this case, the proposed appeal would be very unlikely to succeed. The Ontario court clearly had jurisdiction under s.3(1) of the Divorce Act to entertain Mr. Willenbrecht’s petition. Further, at the time the divorce was granted, the child was more substantially connected to Ontario and a transfer order could have been made by the Alberta court on a motion by either of the parties or on the court’s own motion. Mrs. Willenbrecht agreed, and undertook, to effect a transfer of the Alberta proceedings to Ontario. In these circumstances, it is questionable whether the Alberta proceedings were still “pending” within the meaning of s.3(2) so as to deprive the Ontario court of its jurisdiction under s.3(1). A statutory provision should not be read so as to create an absurd result or in a manner that defeats its intention. Section 3(2) is clearly intended to resolve disputes over jurisdiction in cases where each party intends to pursue divorce proceedings commenced in separate jurisdictions. In this case, both parties resided in Ontario and intended to continue the proceedings in Ontario. The Ontario court exercised its jurisdiction under s.3(1) on that basis. [16] In any event, an order transferring the Alberta proceedings would have the effect of validating the Ontario proceedings nunc pro tunc, that is, as of the date of the divorce judgment since that judgment was predicated on such a transfer having been made. The material demonstrates that this is precisely the course of action that is contemplated by the Alberta court. Therefore, the intended appeal before this court would likely become moot long before it was perfected and scheduled to be heard. [17] It is for these reasons that the motion for leave to extend the time within which to appeal was dismissed. Neither party is represented by counsel and, consequently, I make no order as to costs.