1885

STEVENS

v.

FISK.

the suit of a husband for desertion and non-adherence, in the case of a domiciled Scotchman married in England to an Irishwoman, who, while she and her husband were residing in England, deserted him there, although the cause would have been insufficient to warrant the granting of a decree Gwynne J. of divorce by an English Court. And the ground of the decision was that, the husband having been at the time of the marriage a domiciled Scotchman, the marriage, although solemnized in England, was a Scotch marriage, and that, therefore, it was competent for the Scotch Court to pronounce the decree of dissolution, although the wife had not appeared to the suit.

This judgment is quoted with approbation by the Law Lords in the House of Lords in Harvey v. Farnie (t), in which case it was decided that the English courts will recognize as valid the decision of a competent christian tribunal dissolving a marriage between a domiciled native in the country where such tribunal has jurisdiction, and an Englishwoman, when the decree of divorce is not impeached by any species of collusion or fraud and this, although the marriage may have been solemnized in England and may have been dissolved for a cause which would not have been sufficient to obtain a divorce in England.

A fortiori, as it appears to me, should the decree of the Supreme Court of the State of New York between the parties to the present suit be, upon the principle of the comity of nations, recognized as valid in the courts of the provinces of this Dominion, for the marriage between the plaintiff and defendant was, in the strictest sense, a New York State marriage. Both parties thereto were natural born citizens of the United States, and domiciled at the time of the marriage in the State of New York, which was also the domicile or origin of the plaintiff, and in which she was resident at the time of her filing her petition for divorce and dissolution of marriage in the Supreme Court of the state, and the defendant, though at the time of the presentation of such

(t) 8 App. Cas. 43.

1885

v. FISK.

Gwynne J.

petition domiciled in the Province of Quebec, was personSTEVENS ally served with the process issued out of the said Supreme Court in the said suit and appeared thereto absolutely by an attorney of that court for that purpose duly authorized by the defendant. We may, and in a case of this kind, I think, should refer to the decisions of the courts of the United States and of the several states and to the statute law of the particular state in the tribunals of which the decree of dissolution of marriage was made equally, as we would in a like case in the English Divorce Court refer to the decisions of the English courts, and to the statute law of England affecting the subject, all countries being equally foreign to the country in the tribunals of which the question arises, in the sense in which that term is applied to questions of domicile, and the status of married persons; and so doing we should not, in my judgment, hesitate to recognize the decree in the Supreme Court of the State of New York in the suit instituted by the plaintiff against her husband for adultery to be valid and binding upon the defendant. There is no suggestion of the decree having been obtained by collusion or fraud and the parties to that suit having been natural born citizens of the United States and domiciled in the State of New York at the time of the marriage and married under the law of that state, the marriage must be held to have been a New York State marriage and the parties must be held to have become upon the marriage subject to the law of the State of New York relating to divorce by which law it then was, and continually hitherto has been, provided and enacted by statute that a divorce may be decreed and marriage may be dissolved by the Supreme Court of the state whenever adultery has been committed by any husband or wife in the following case, among others: "where the marriage has been solemnized or taken place within this state," and that a bill of divorce may be exhibited by the wife in her own name as well as by a husband; and, further, that if a married woman at the time of exhibiting a bill against her husband shall reside in this

1885

v.

FISK.

Gwynne J.

state, she shall be deemed an inhabitant thereof, although her husband may reside elsewhere. The contention that STEVENS what this decree purports to effect, namely, dissolution of marriage, is contrary to the public policy of the Province of Quebec, and that, therefore, it should not be recognized cannot prevail, for although the Province of Quebec has no tribunal established within its limits competent to entertain questions of divorce and cannot, by its constitution, establish such a court, yet that is because of the nature of its constitution and because the subject of divorce is placed under the exclusive jurisdiction of the Dominion Parliament, which can establish such a court competent to entertain all cases of divorce arising in all the provinces, and in the meantime, until it does, exercise itself jurisdiction over the subject, as a court, for the same cause as by the law of the State of New York is deemed sufficient there, and in the same manner as the Imperial Parliament did in England prior to the establishment of the Divorce Court there. That cannot be said to be against the public policy of a province of this Dominion which the province, by its constitution, has not, but the Dominion has, power to deal with. Neither can it, with any propriety be said that the province has any interest in refusing or which could justify its courts in refusing to recognize the validity of the decree. The language of Lord Selborne, in Harvey v. Farnie (u), appears to me to be very apropriate to the present case, to the effect that, so far as the question of recognition depends upon any principle, it must be upon the principle of recognizing the law of the forum in which the decree is made and of the matrimonial domicile when, as in this case, they both concur. I am of opinion, therefore, that the validity of the decree should be recognized in the several courts of the provinces of this Dominion. That upon one side of the line of 45° latitude the plaintiff and defendant should be held to be unmarried persons with all the incidents of their being (u) 8 App. Cas. 43.

28-SUP. CT. CAS.

sole and unmarried, and that upon the other side of the same line they should be held to be man and wife, is a result so inconvenient, injurious and mischievous, and fraught with such confusion and such serious consequences, that, in my judgment, no tribunal not under a peremptory obligation so to hold should do so. Such a decision would, in my opinion, have the effect of doing great violence to that comitas inter gentes which should be assiduously cultivated by all neighbouring nations, especially by nations whose laws are so similar and derived from the same fountain of justice and equity as are those of the State of New York and of Canada, and between whom such constant intercourse and such friendly relations exist as do exist be tween the United States of America and this Dominion.

But I am of opinion that, for the purpose of the present appeal, it is sufficient to hold that the defendant, having appeared to the suit which, as appears by the evidence, the Supreme Court of the State of New York had jurisdiction to entertain, he should not be permitted in the present suit indirectly to call in question the validity of a decree made in a suit to which he appeared absolutely and not under protest. This is a position which, in my opinion, is not only warranted on principle, but on the authority of decided cases. Zycklinski v. Zycklinski (v); Callwell v. Callwell (w); Reynolds v. Fenton (x), and other cases.

The appeal should, therefore, in my opinion, be allowed with costs and the case remitted to the Superior Court of the Province of Quebec to be proceeded with.

I have thought it due to the able argument presented to us by the learned counsel upon both sides to express my opinion upon the above point which was so fully and with great propriety dwelt upon as the main point in the case, but I concur also in the judgment of my brother Fournier and in the reasoning upon which he has supported it.

(v) 2 Sw. & Tr. 420.

(w) 3 Sw. & Tr. 259.

(x) 3 C.B. 187.