1. Appeal concerning the jurisdiction of the Supreme Court of Alberta to entertain divorce petitions on the ground of adultery. (Para 1 )
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1919 Supreme(SC) 45
Privy Council
Scott Dickson, Shaw , Dunedin, Lords Buckmaster, Justice Viscount Haldane, JJ.
Mary Board -Appellant
Versus
William Board -Resopndent
Privy Council Appeal No. 87 of 1918
Decided On : 03-07-1919
A Superior Court is presumed to have jurisdiction over all matters unless specifically excluded. If a substantive legal right exists, it is presumed that a court has the jurisdiction to enforce it, especially when the constituting act is comprehensive.
Headnote:(A) British North America Act, 1867 - Sections 91 and 92 - Dominion Act of 1886 - Supreme Court Act of 1907 - Jurisdiction of Superior Court in matrimonial causes - Divorce on ground of adultery - Whether the omission of a specific matrimonial court in the constituting act excludes jurisdiction - If a substantive right to divorce exists, there is a presumption that a court has jurisdiction to enforce it - In the case of a Superior Court, nothing is intended to be excluded from its jurisdiction unless it specially appears to be so.
(B) Construction of enabling statutes - Comprehensive language conferring powers of various superior courts of a foreign jurisdiction includes the capacity of judges of those courts to act in other capacities provided by statute.
Facts of the case:
A petition for divorce on the ground of adultery was filed in a provincial superior court. A question arose as to whether the court had the jurisdiction to entertain such proceedings, as the specific court for divorce and matrimonial causes was not explicitly mentioned in the legislation that established the provincial court or the legislation that applied the laws of a foreign jurisdiction to the region.
Findings of Court:
The court held that the provincial superior court has jurisdiction in matrimonial causes, including divorce.
Issues: Whether the provincial superior court was constituted with jurisdiction in matrimonial causes and divorce, despite the omission of the specific matrimonial court in the constituting legislation.
Ratio Decidendi: The court reasoned that the language of the constituting act was comprehensive and conferred the powers of judges who, under the laws of the source jurisdiction, were also judges of the matrimonial court. Moreover, since the substantive right to divorce had been introduced into the law of the province, it is presumed that a court exists to enforce that right. Finally, there is a general presumption that a Superior Court possesses all jurisdiction unless it is specifically and explicitly excluded.
Result: Appeal dismissed.
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2. Whether the omission of the Court for Divorce and Matrimonial Causes in the establishing statutes excludes the Supreme Court of Alberta's jurisdiction over matrimonial causes. (Para 5 )
Viscount Haldane:-
This is an appeal from a judgment of the Supreme Court of Alberta, by which it was held that there was jurisdiction in the Court to entertain proceedings on a petition for divorce on the ground of adultery.
The Province was established in 1905 by a Dominion Act of that year, being formed out of the North-West Territories. By Section 16 of the Act it was provided that the laws previously in force in the North-West Territories included in the New Province should continue subject to certain reservations which are not material. No law relating to marriage or divorce has been enacted by the Dominion Parliament since the Province was established, and it is therefore necessary to ascertain what was the law relating to marriage and divorce in the Territories before the Province was constituted.
In the appeal, immediately previous to this one, of Walker v. Walker, their Lordships have referred to the legislation by which the Parliament of the Dominion acquired power to make laws relating to the North-West Territories. In 1886, the Dominion Parliament passed, under the powers it had so acquired, an Act to amend the law respecting them (49 Vict., c. 25). By Section 2 of that Act, all its statutes which were not inapplicable were to be in force in the Territories, and by Section 3 of the laws of England relating to civil and criminal matters, as the same existed on the 15th July, 1870, were to be in force in the Territories, in so far as the same were applicable, unless excluded by Imperial or Dominion statute, or by ordinance of the Lieut, Governor in Council.
For the reasons given in their judgment in Walker v. Walker their Lordships are of opinion that the effect of the Act of 1886 was to make the English law of divorce as established by the Divorce Act of 1857, apply to the Territories as well as to Alberta.
But there is another question which has been raised in this appeal, which is whether the Supreme Court of the Province of Alberta has been so constituted as to have jurisdiction in matrimonial Causes, including divorce.
The Dominion Act of 1886, by Section 4 , established in the Territories a Supreme Court of record of original and appellate jurisdiction, called the Supreme Court of the North-West Territories. By Section 14 , this Court was, for the administration of the laws within them, to possess all such powers and authorities as by the law of England are incident to a Superior Court of civil and criminal jurisdiction and was to have and exercise all the rights, incidents and privileges of a Court of record, and all other rights, incidents and privileges, as fully to all intents and purposes as the same were on the 15th July, 1870, used, exercised and enjoyed by any of Her Majesty's Superior Courts of Common Law, or by the Court of Chancery, or by the Court of Probate in England, and was to hold pleas in all, and all manner of actions causes and suits, as well criminal and civil, real and personal and mixed, and was to proceed in such actions, causes and suits by such process and course as are provided by law, and as should tend with justice and despatch to determine the same, and should hear and determine all issues of law, and should hear and (with or without a jury as provided by law) determine all issues of fact that might be found, and give judgment and award execution, in as full and ample a manner as might at the date mentioned be done in Her Majesty's Courts of Queen's Bench, Common Bench, or, in matters which regarded the Queen's Revenue (including the condition of contraband and smuggled goods), by the Court of Exchequer, or by the Court of Chancery or the Court of Probate in England.
It will be observed that in the above enumeration of Courts the Court of Divorce and Matrimonial Causes, established by the English Divorce Act of 1857, is not mentioned.
By Section 91 of the British North America Act, 1867 , the subjects of marriage and divorce are among the matters as to which the Dominion Parliament
