Hjorleifson v. Gooch, (1986) 73 N.S.R.(2d) 271 (CA)

• Judge: Jones, Morrison and Pace, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 26, 1986
• Jurisdiction: Nova Scotia
• Citations: (1986), 73 N.S.R.(2d) 271 (CA)

Hjorleifson v. Gooch (1986), 73 N.S.R.(2d) 271 (CA);

              176 A.P.R. 271

MLB headnote and full text

Hjorleifson v. Gooch

S.C.A. No. 01536

Indexed As: Hjorleifson v. Gooch

Nova Scotia Supreme Court

Appeal Division

Jones, Morrison and Pace, JJ.A.

May 26, 1986.

Summary:

An Alberta couple had a five year old girl. The mother left and went to Nova Scotia with the girl. In a custody application in Nova Scotia the Nova Scotia Family Court refused to take jurisdiction on the ground that the matter should have been determined in Alberta.

The Nova Scotia County Court, in a judgment reported 70 N.S.R(2d) 244; 166 A.P.R. 244, held that either Alberta or Nova Scotia had jurisdiction and that the Nova Scotia Family Court should have taken jurisdiction over the matter in the best interests of the child. The father appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal and ordered that the child be returned to her father in Alberta. The court held that the proper forum was Alberta, because it was in the best interests of the child that custody be determined there.

Family Law - Topic 2120

Custody - Jurisdiction - Founded on residence of child - A mother and father lived in Alberta with their five year old child - The mother left with the child and went to Nova Scotia, where she obtained an ex parte order for custody - The mother changed her mind and returned the child to the father - The father was then tricked into returning to Nova Scotia with the child in a purported reconciliation attempt - The mother seized the child at the bus terminal and applied for custody in Nova Scotia - The Nova Scotia Court of Appeal held that although Nova Scotia and Alberta both had jurisdiction to determine custody, Alberta was the proper forum - The court stated that the mother's conduct had the characteristics of a kidnapping and should be discouraged - The court held that the best interests of the child dictated that the issue be resolved in Alberta, the ordinary residence of the child.

Cases Noticed:

Lor v. Lor (1978), 25 N.S.R.(2d) 243; 36 A.P.R. 243 (C.A.), refd to. [para. 13].

Re T. (infants), [1968] 3 All E.R. 411, consd. [para. 14].

Burgess v. Burgess (1977), 19 N.S.R.(2d) 689; 24 A.P.R. 689 (C.A.) refd to. [para. 14].

Authors and Works Noticed:

Power on Divorce and other Matrimonial Causes (3rd Ed.), vol. 2, pp. 259-260 [para. 12].

Counsel:

Moira C. Legere, for the appellant.

Joan M. Dawkins, for the respondent.

This appeal was heard on March 24, 1986, before Jones, Morrison and Pace, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On May 26, 1986, Pace, J.A., delivered the following judgment for the Court of Appeal: