Osvath-Latkoczy v. Osvath-Latkoczy et al.

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APPELLANT; >un. 10

JUDSON J.:-The appellant's action for divorce was dismissed on the ground that he was not domiciled in the Province of Ontario.

This dismissal was affirmed on appeal, MacKay J. A. dissenting. The marriage took place at the City of Budapest on October 31, 1955, where the husband and wife lived together until November 4, 1956. They then left Hungary for a refugee camp in Vienna where they lived until January 17, 1957. They left there for Canada on that date and arrived in Halifax on February 9, From Halifax they went to Toronto and lived together in a refugee centre until March 1, 1957. They Locke, Cartwright, Abbott, Martland and Judson JJ. S.C.R.

separated when they left this centre and have not lived together since that date.

The wife is now living with another man, who is her co-defendant in the action. The husband, who had been trained as a forester in a.

Hungary, obtained employment in his own line of work J. at Shelburne, Ontario. He was still so employed when he commenced this action on April 2, 1958, and at the date of the trial, November 3, 1958.

He stated that he expected to continue to follow this occupation in Ontario and that he hoped eventually to get some land of his own and get into the business for himself. Up to a certain point in the evidence he made it very clear that he intended to remain in Ontario permanently or for an indefinite period. His expressed intention is strongly supported by the fact of his having secured work for which he was trained and by his early filing, under s. 10(1) (a) of the Canadian Citizenship Act, of the necessary declaration of intention to become a Canadian citizen.

The learned trial judge put to him the following questions and received the following answers:

The learned trial judge then expressed the opinion that these answers ended the case. The witness, however, after further questioning by counsel, did state that he had no hope or expectation that political conditions would permit of his return.

With respect, in my opinion there was error in the judgment in attributing this conclusiveness to the one answer given by the plaintiff and in putting aside the other evidence of intention to reside permanently in Ontario, supported, as it was, by a residence of eighteen months at the time of trial and the declaration of intention filed under the Canadian Citizenship Act. In spite of the circumstances in which this man left his native land, there is a preponderance of evidence in this case that he came here as an immigrant intending to settle. Even if the answer does amount to a