



COURT OF APPEAL FOR ONTARIO

CITATION:
White v. White, 2015 ONCA 647

DATE: 20150925

DOCKET: C59752

Feldman, Simmons and Miller JJ.A.

BETWEEN

Neville Alphonso White

Respondent

and

Sonia White

Appellant

Matthew Tubie, for the appellant

Lance Carey Talbot, for Melville White and Karen White

Heard: August 26, 2015

On appeal from the order of Justice Eva Frank of the Superior
    Court of Justice, dated November 20, 2014.

ENDORSEMENT

[1]

The appellant Sonia White and Neville White were married. At the request
    of the husband, a divorce was granted on June 10, 2013 by Paisley J.
    Unfortunately, the Answer opposing the divorce on substantive grounds was not
    brought to the attention of Paisley J. Before the divorce became final, the
    appellant brought a motion and obtained an order on July 4, 2013 from Herman J.
    staying the Divorce Order pending further court order. While the stay
    remained in effect, Mr. White died.

[2]

Following Mr. Whites death, a dispute arose between the appellant and
    some of Mr. Whites children, the respondents in this appeal, as to whether the
    marriage was terminated by death or by divorce.

[3]

The appellant eventually brought a motion for an order discontinuing or
    terminating the divorce order granted by the order of Justice Herman [
sic
]
    dated June 10, 2013.

[4]

She applied in the alternative for a declaration that she and Mr. White had
    not been divorced, and that their marriage was terminated upon his death.

[5]

The motion judge, whose decision is appealed here, dismissed the motion.
    In essence she found that Rule 11.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
was a bar to the
    motion and that a declaration was not the appropriate remedy as the issued
    orders speak for themselves.

[6]

On appeal, the appellant asks that the order of the motion judge be set
    aside (including costs awarded to Karen White), and that this court make a
    declaration that her marriage to Mr. White was terminated by his death.

[7]

At the hearing of the appeal, the respondents, two of Mr. Whites
    children, Melville White and Karen White, who were served with the motion in
    the court below, requested that the stay of the Divorce Order be lifted with
    retroactive effect.

(i)

Analysis

[8]

Although this endorsement is given in the context of an appeal from the
    order of Frank J., it is intended to clarify all orders in these proceedings,
    including the
ex parte
order of Perkins J. dated February 4, 2015 made
    after the order under appeal.

[9]

The Divorce Order did not dissolve the marriage.

[10]

Section
    14 of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.) provides that [o]n
    taking effect, a divorce granted under this Act dissolves the marriage of the
    spouses.

[11]

In
    the ordinary course, the effect of s. 12(1) of the
Divorce Act
is that
    a divorce takes effect on the 31st day following the judgment granting the
    divorce. In the intervening period, the parties are still married. If one of
    the parties dies during that period, the judgment granting the divorce cannot
    take effect: see
Re

Kindl
(1982), 39 O.R. (2d) 219 (S.C.), at
    p. 224;
L. (M.) v. C. (J.-P.)
(1997), 145 D.L.R. (4th) 739 (Que. C.A.),
    at p. 740.

[12]

In
    this instance, the Divorce Order had been stayed until further order of the
    court, which prevented it from taking effect and from dissolving the marriage.

[13]

At
    the time of Mr. Whites death, the stay had not been lifted and the parties
    were still married. It follows that it is Mr. Whites death that ended the
    marriage.

[14]

The only relief sought in the divorce application was a termination of
    the parties marriage through divorce. The marriage having been terminated by
    the death of Mr. White, the Divorce Order that was granted in error should become
    permanently stayed. In these circumstances, no order to continue is necessary.

(ii)

Disposition

[15]

The
    appeal is allowed, the order of Frank J. is set aside, and the Divorce Order is
    permanently stayed. This order is without prejudice to any relief that the
    appellant may seek to claim against the estate of Mr. White. The costs order
    below is set aside. Costs of the appeal and the proceeding below are granted to
    the appellant in the amount of $2,500 inclusive of disbursements and HST.

K. Feldman J.A.

J. M.
    Simmons J.A.

"B.
    W. Miller J.A."


