Decided on December 16,1935



- (1.) QUESTIONS of wide general importance-of interest in some of their aspects to the whole Dominion and even beyond-are raised by this appeal from the Supreme Court of the Province of Alberta, The questions discussed in the judgments appealed from are concerned with the degree of publicity called for at the trial of divorce suits-in particular undefended divorce suits in the Province : their Lordships, however, will have to deal, in addition, with the effect upon a decree nisi made at such a trial and upon a decree absolute following thereon when it is shown-as in this case is alleged, that the proceedings at the trial were devoid of sufficient publicity-were, in short, not held in " Open Court".
(2.) THE facts which raise these questions are not in the present case in dispute and may be stated as follows : THE appellant and the respondent-they will throughout be generally so referred to-were married on April 17, 1908, in the United States. THEir subsequent matrimonial domicil, however, was in Alberta. THEy lived at Edmonton where they must have been prominent citizens-the respondent in 1931, being, or shortly afterwards succeeding to the office of, Minister of Public Works for the Province. On March 17, 1931, he instituted in the Supreme Court of Alberta divorce proceedings against his wife. He accused her of misconduct with one Roy Mattern. She made no answer to the charge. She put in no defence. She filed no demand of notice. Accordingly the action was appointed for trial without further intimation to her. It was tried on April 22, 1931, by Mr. Justice Tweedie, sitting in the Judges' law library of the Court House at Edmonton. The learned Judge, on that day and in that place, after taking the evidence of the respondent and of two witnesses called on his behalf, pronounced a decree nisi and gave to the respondent the custody of the four children of the marriage-all of them sons, the youngest then a boy of seven, It is not unlikely, if one may judge from passages in the record, that the retention by the respondent of the custody of that youngest son, lies at the root of much of the later troubles between the parents.
(3.) IN due course, however, there having been no intervention by the appellant or anyone else, the decree nisi was by decree of June 28, 1931, made absolute and the marriage between the appellant and respondent was, at least apparently, finally dissolved, with this statutory result, that, after the time for appeal had expired, it became lawful for both parties to marry again as if their prior marriage had been dissolved by death-all in terms of Section 57 of the Matrimonial Causes Act, 1857-a section which has always been part of the law of Alberta. And of that privilege the respondent in due course availed himself. In July, 1932-long after the time for any appeal from the decree absolute had expired, he married Mrs. Mattern, the former wife of Roy Mattern already mentioned. She had obtained a divorce from her husband on account of his misconduct with the appellant. Three months after the respondent's marriage to Mrs. Mattern-in October, 1932-the appellant commenced against him the action out of which this appeal proceeds.;

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