Burgess v. Burgess, (1977) 19 N.S.R.(2d) 689 (CA)

• Judge: Coffin, Cooper and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 14, 1977
• Jurisdiction: Nova Scotia
• Citations: (1977), 19 N.S.R.(2d) 689 (CA)

Burgess v. Burgess (1977), 19 N.S.R.(2d) 689 (CA);

    24 A.P.R. 689

MLB headnote and full text

Burgess v. Burgess

Indexed As: Burgess v. Burgess

Nova Scotia Supreme Court

Appeal Division

Coffin, Cooper and Macdonald, JJ.A.

April 14, 1977.

Summary:

This case arose out of the mother's application for custody of a 9 year old boy. The mother and father of the boy separated in 1974 in Canada and the mother returned to England with the boy with the consent of the father. Subsequently the mother brought a petition for divorce and custody in England, of which the father had notice. Before the matter was determined the father surreptitiously took the boy to Nova Scotia. The mother brought an application for custody in the Nova Scotia Supreme Court, which declined jurisdiction and ruled that the matter should be determined by the English Court. The father appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The Court of Appeal held that, while the Nova Scotia Supreme Court had jurisdiction because of the boy's residence in Nova Scotia, the Supreme Court was correct in declining to take jurisdiction. The Court of Appeal stated that generally the place where the child is ordinarily resident, in this case England, is the most convenient forum. The Court of Appeal stated that in determining whether to exercise its jurisdiction the court where the child is physically present should consider the administration of justice and the welfare of the child. The Court of Appeal stated that the administration of justice dictated strong disapproval of the abduction of the child by the father. The Court of Appeal stated that the best interests of the child dictated a hearing where he is ordinarily resident, unless there is reason to fear harm to the child. The Court of Appeal stated that in declining jurisdiction the court should order that the child be returned to the place of ordinary residence.

Family Law - Topic 2120

Custody of children - Jurisdiction founded on residence of child in jurisdiction - The Nova Scotia Court of Appeal held that the court has jurisdiction over a child who is resident in the jurisdiction, irrespective of domicile - See paragraphs 18-19.

Family Law - Topic 2123

Custody of children - Jurisdiction - Where child taken from one jurisdiction to another by one parent without the consent of other parent - The mother and father of a 9 year old boy separated in 1974 in Canada and the mother returned to England with the boy with the consent of the father - Subsequently the mother brought a petition for divorce and custody in England, of which the father had notice - Before the matter was determined the father surreptitiously took the boy to Nova Scotia - The mother brought an application for custody in the Nova Scotia Supreme Court, which declined jurisdiction and ruled that the matter should be determined by the English Court - The father appealed - The Nova Scotia Court of Appeal dismissed the appeal - The Court of Appeal held that, while the Nova Scotia Supreme Court had jurisdiction because of the boy's residence in Nova Scotia, the Supreme Court was correct in declining to take jurisdiction - The Court of Appeal stated that generally the place where the child is ordinarily resident, in this case England, is the most convenient forum - The Court of Appeal stated that in determining whether to exercise its jurisdiction the court where the child is physically present should consider the administration of justice and the welfare of the child - The Court of Appeal stated that the administration of justice dictated strong disapproval of the abduction of the child by the father - The Court of Appeal stated that the best interests of the child dictated a hearing where he is ordinarily resident, unless there is reason to fear harm to the child - The Court of Appeal stated that in declining jurisdiction the court should order that the child be returned to the place of ordinary residence.

Family Law - Topic 2133

Custody of children - Jurisdiction - Estoppel - A mother resident in England brought a custody application in the Nova Scotia Supreme Court respecting her child, who had been surreptitiously taken from her in England by the father to Nova Scotia - The Supreme Court declined jurisdiction and ruled that the matter should be determined in England - The father appealed and argued inter alia that the mother was estopped from saying that the matter should be determined by the English Court - The Nova Scotia Court of Appeal held that the mother was not estopped, because she felt obliged to seek redress in the Supreme Court in order to have an effective jurisdiction asserted over the child - See paragraph 17.

Cases Noticed:

Knowles v. Knowles (1974), 13 R.F.L. 76, folld. [para. 17].

In re P. (G.E.) (an infant), [1965] L.R. Chan. Div. 568; [1964] 3 All E.R. 977, appld. [paras. 19 & 28].

McKee v. McKee, 2 W.W.R.(N.S.) 181; [1951] 2 D.L.R. 657; [1951] 1 All E.R. 942; [1951] A.C. 352, reversing [1950] S.C.R. 700; [1950] 3 D.L.R. 577, and restoring [1947] O.R. 819; [1947] 4 D.L.R. 579, affirmed [1948] O.R. 658; [1948] 4 D.L.R. 339, dist. [paras. 23 & 44].

Re H. (infants), [1966] 1 All E.R. 886; [1966] 1 W.L.R. 381; [1965] 3 All E.R. 906, folld. [para. 25 & 64].

Re T (infants), [1968] 3 All E.R. 411, folld. [para. 27].

Re Ridderstroem and Ridderstroem, [1972] 2 O.R. 113; 6 R.F.L. 18 (C.A.), appld. [paras. 29 & 47].

Leatherdale v. Ferguson (1964), 50 D.L.R.(2d) 182; 50 W.W.R.(N.S.) 700 (Man. C.A.), appld. [para. 29 & 46].

Prosser-Jones v. Prossor-Jones (1972), 7 R.F.L. 150 (Man. Q.B.), appld. [para. 29 & 49].

Re Loughran, [1973] 1 O.R. 109 (C.A.), appld. [para. 29].

Re L. (1975), 17 R.F.L. 374, refd to. [para. 46].

Rioux v. Rioux (1962), 40 W.W.R.(N.S.) 251 (Man. C.A.), folld. [para. 47].

Re Ritchie and Ritchie (1976), 20 R.F.L. 225 (O.C.A.) refd to. [para. 48].

Loughran v. Loughran (1973), 9 R.F.L. 255, folld. [para. 63].

Re Perry (1962), 46 M.P.R. 373, refd to. [para. 65].

Statutes Noticed:

Infants Custody Act, R.S.N.S. 1967, c. 145 [para. 14].

Authors and Works Noticed:

Da Costa, Studies in Canadian Family Law, vol. 2, pp. 557-8 [para. 21]; 560 [para. 22].

Power on Divorce and Other Matrimonial Causes (3rd Ed.), vol. 1, p. 258 et seq. [para. 17]; vol. 2, pp. 259-260 [para. 30].

Weatherston, F.S., Article on Custody Jurisdiction (1951), 29 C.B.R. 536 et seq. [paras. 24 & 32].

Counsel:

Michael Dietrich, for the appellant;

Donald H. Oliver, for the respondent.

This case was heard on April 6, 1977, at Halifax, Nova Scotia, before, COFFIN, COOPER, and MACDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On April 14, 1977 the judgment of the Appeal Division was delivered and the following opinions were filed:

MACDONALD, J.A. - see paragraphs 1-33,

COOPER, J.A. - see paragraphs 34-50,

COFFIN, J.A. - see paragraphs 51-56.