Arsenault v. Arsenault, (2006) 242 N.S.R.(2d) 340 (CA)

• Judge: Bateman, Freeman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 22, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 242 N.S.R.(2d) 340 (CA);2006 NSCA 38

Arsenault v. Arsenault (2006), 242 N.S.R.(2d) 340 (CA);

    770 A.P.R. 340

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. MR.035

Sheila Jewel Arsenault (appellant) v. Joseph Francis Arsenault (respondent)

(CA 255764; 2006 NSCA 38)

Indexed As: Arsenault v. Arsenault

Nova Scotia Court of Appeal

Bateman, Freeman and Oland, JJ.A.

March 30, 2006.

Summary:

The parties were divorced in Manitoba. They had signed a full and final separation agreement but did not request that it be incorporated into a corollary relief judgment. The wife moved to Nova Scotia and the husband moved to New Brunswick. The wife alleged that the husband was in arrears of maintenance and applied by way of an Interlocutory Notice (Application Inter Parties) for a corollary relief judgment.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the application for want of jurisdiction. The wife appealed.

The Nova Scotia Court of Appeal allowed the appeal. Since the amendment of s. 4 of the Divorce Act in 1993, a court in a province other than that granting the judgment of divorce had jurisdiction to grant an original order for corollary relief. However, the matter was not properly before the court through an interlocutory notice as there was no existing proceeding in Nova Scotia. The wife was at liberty to commence an action using a proper originating document.

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance awards - Jurisdiction of a court to grant maintenance (incl. automatic increases and reservation re future applications) - The parties were divorced in Manitoba - They had signed a full and final separation agreement but did not request that it be incorporated into a corollary relief judgment - The wife moved to Nova Scotia and the husband moved to New Brunswick - The wife alleged that the husband was in arrears of maintenance and applied by way of an Interlocutory Notice (Application Inter Parties) for a corollary relief judgment - The applications judge dismissed the application - He concluded that he did not have jurisdiction to grant an original corollary relief judgment because the divorce had been granted in Manitoba - The wife appealed - The Nova Scotia Court of Appeal allowed the appeal - Since the amendment of s. 4 of the Divorce Act in 1993, a court in a province other than that granting the judgment of divorce had jurisdiction to grant an original order for corollary relief - However, the matter was not properly before the court through an interlocutory notice as there was no existing proceeding in Nova Scotia - The wife was at liberty to commence an action using a proper originating document.

Cases Noticed:

Tierney-Hynes v. Hynes (2005), 200 O.A.C. 251; 75 O.R.(3d) 737 (C.A.), leave to appeal denied (2005), 349 N.R.394 (S.C.C.), refd to. [para. 12].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 4 [para. 7].

Counsel:

Vincent K. Roberts, agent for the appellant;

No one appeared for the respondent.

This appeal was heard on March 22, 2006, at Halifax, Nova Scotia, by Bateman, Freeman and Oland, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bateman, J.A., on March 30, 2006.