Recognition of Provincial Divorces in Canada

At present, the federal Parliament has exclusive jurisdiction over divorce under section 91:26 of the British North America Act, 1867.However, the desirability of integrating divorce law with the aspects of family and property law already within provincial jurisdiction has prompted the suggestion in recent years that the divorce jurisdiction be transferred to the provincial legislatures. The implementation of this suggestion would require modification of sections 91 and 92 of the British North America Act, 1867 and repeal of the 1968 Divorce Act. Each province would then be free to adopt divorce legislation which would reflect the social and ethical values of its residents and express its particular social philosophy. However, such a transfer of jurisdiction would require balancing uniform recognition throughout Canada of provincial divorce decrees and each province\u27s right to exercise control over foreign decrees affecting its residents. Several approaches are possible, none of which is free from criticism

The Internet in Light of Traditional Public and Private International Law Principles and Rules Applied in Canada

In general, the jurisdiction of a state to prescribe, to adjudicate, and to enforce\u27 is related to physical location. Yet, physical location is foreign to the Internet, which can be defined as the electronic medium of worldwide computer networks within which online communication takes place. The absence of physical location calls into question the applicability of the traditional public and private international law principles and rules that are based primarily on territoriality, in order to delineate the jurisdiction of states and their courts over the Internet and its users

Recognition and Enforcement of Foreign Judgments in Personam and in Rem in the Common Law Provinces of Canada

Although it is hardly necessary to stress the advantages to international relations and international trade which may result from universal recognition and enforcement of foreign judgments, it appears that the increasing volume of international and inter- provincial trade and business has not been followed by a com- parable development of the facilities granted to creditors to recover on their claims. Each country has a tendency to protect itself against the intrusion of foreign judgments, to the prejudice of creditors in whose favour the judgments lie. The principle of territorial sovereignty is said to prevent foreign judgments from having any direct operation as such in any of the Canadian provinces. This attitude is principally due to a lack of confidence in other legal systems. It may be difficult for the enforcing court to ascertain the independence and legal ability of the foreign judge, and to assess the reliability of the foreign legal system. This difficulty is reinforced where the countries involved adhere to fundamentally different legal systems and thus may have different concepts of public policy and due process. To admit the principle of universal recognition and enforcement of foreign judgments would result in recognizing in a foreign judge a power superior in many instances to that possessed by the local legislature. For these reasons adequate safeguards must be provided. On the other hand a foreign judgment is a fact which cannot be ignored. This is why Canadian courts have had to recognize and enforce foreign judgments provided they meet certain conditions

The Internet in Light of Traditional Public and Private International Law Principles and Rules Applied in Canada

In general, the jurisdiction of a state to prescribe, to adjudicate, and to enforce\u27 is related to physical location. Yet, physical location is foreign to the Internet, which can be defined as the electronic medium of worldwide computer networks within which online communication takes place. The absence of physical location calls into question the applicability of the traditional public and private international law principles and rules that are based primarily on territoriality, in order to delineate the jurisdiction of states and their courts over the Internet and its users

Procedure and the Conflict of Laws

The enforcement of a validly acquired foreign or domestic right is a matter of procedure governed by the lex fori. A Canadian court always applies its own procedural rules to a case involving a foreign element pending before it even though the merits of the controversy .are governed by some foreign law. Never will the court apply a foreign rule that is procedural. The court in which the action is pending cannot be expected to submit to foreign procedural rules. It must conduct the proceedings according to its own rules. Although it may be bound to apply foreign law, this does not mean that the court must apply all the relevant rules of the lex causae. In other words, there is no vested right in procedure.\u27 A person invoking the jurisdiction of the court must take its procedure as he finds it. There ought to be no difference between the position of a foreign and a local litigant

Exemption from the Jurisdiction of Canadian Courts

This article addresses persons who claim immunity from the compulsory jurisdiction of Canadian courts

Conflict of Laws - Foreign Tort - Not Justifiable by the Lex Loci Delicti - Residence of Defendant - Interprovincial Comity - Judicial Creativity

The conflict of laws rule applicable in foreign tons contains two conditions. First, the wrong must be actionable under the law of the forum. Second, the wrong must not be justifiable by the law of the place where the tort occurred. Professor Castel welcomes a recent decision of the Ontario Court of Appeal further refining the second condition of the rule. However, he argues that the decision of the Court of Appeal is actually a disguised attempt to adopt the doctrine of the proper law of the tort dependent upon establishing which jurisdiction has the most significant relationship with the tort. In his call for reform Professor Castel drafts a new foreign torts rule with a proper law of the tort exception that is only to be applied in special circumstances