It sometimes happens…estranged spouses, who are not in communication with one another, each go to a family law lawyer and each lawyer prepares and files court documents to obtain a divorce. So what happens if your lawyer files first, and the next day, a second Notice of Family Claim is filed, seeking a divorce. Or what about if both spouses file for divorce on the same day…it’s been done before, and that’s why the Divorce Act tells us what to do…
Section 3(2) states:
“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.”
Pretty simple…if you file first, you go first, and the second divorce filing is deemed to be discontinued.
Each spouse filing on the same day is a bit more complicated. Section 3(3) says:
“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.”
The upshot is that it appears that if one of you does not discontinue, the matter has to go to the Federal Court…a very bizarre solution…keep in mind that ordinarily divorces are heard in your local Supreme Court or Queen’s Bench, depending upon which Province you live in.
The case of Kumhyr v. Kumhyr 1997 Canlii 3078 BCSC sheds some light on this anomaly. In Kumhyr the husband filed for a divorce in the Nanaimo Supreme Court. On the same day his separated spouse filed for divorce in the Chilliwack Supreme Court. Ms. Kumhyr’s counsel referred to section 3(3) and argued that the case had to be transferred to the Federal Court. The Court said “no, you have misread section 3(3)”.
The Court explained that when section 3(3) refers to “proceedings in two courts that would otherwise have jurisdiction” it meant two courts, the Supreme Court in BC and another court in a different Province, since only the BC Supreme Court has jurisdiction over divorce in BC. The fact that the BC court locations were not the same did not make a difference.
In Kumhyr the spouses agreed that an order could made for custody of the children in the Nanaimo Registry and the final determination of which court would take charge would await further argument, another day.
If you have lots of money to spend on legal fees you could argue this point or you could come to a satisfactory solution, perhaps through mediation. Jurisdictional battles are expensive and time-wasting, especially one like this one.
Lawdiva aka Georgialee Lang