Hutchings, Re, (1976) 9 Nfld. & P.E.I.R. 438 (NFCA)

JudgeFurlong, C.J.N., Gushue and Morgan, JJ.A.
CourtNewfoundland Court of Appeal
Case DateMarch 23, 1976
JurisdictionNewfoundland and Labrador
Citations(1976), 9 Nfld. & P.E.I.R. 438 (NFCA)

Hutchings, Re (1976), 9 Nfld. & P.E.I.R. 438 (NFCA);

    12 A.P.R. 438

MLB headnote and full text

Re Hutchings

Indexed As: Hutchings, Re

Newfoundland Court of Appeal

Furlong, C.J.N., Gushue and Morgan, JJ.A.

May 11, 1976

Summary:

This case arose out of an application by a mother for a writ of habeas corpus with respect to her child. The mother in a divorce proceeding in Ontario was awarded custody of the child. The child, aged 8, resided happily with an uncle and aunt for several years following the separation of parents. The uncle and aunt refused to give the child to the mother. The mother, who was living in Ontario made an application for a writ of habeas corpus in the Newfoundland Supreme Court.

The Newfoundland Supreme Court in a judgment reported 6 Nfld. & P.E.I.R. 461 held that it did not have jurisdiction with respect to the custody of the child because of the previous custody order made by the Ontario Supreme Court pursuant to s. 11(1)(c) of the Divorce Act. The uncle appealed.

The Newfoundland Court of Appeal allowed the appeal. The appeal court held that the custody order in the Ontario divorce proceeding only affected the rights of the mother and father and not third parties. The appeal court held that s. 11 of the Divorce Act did not affect the equitable jurisdiction of the Newfoundland Supreme Court as parens patriae over infants within its jurisdiction. The appeal court held that the Newfoundland Supreme Court had jurisdiction to determine the custody of the child between the mother and the aunt and uncle notwithstanding the Ontario custody order. The appeal court ordered the trial court to hear the custody proceeding on the merits.

Constitutional Law - Topic 6414

Enumeration in s. 91 of British North America Act - Divorce - B.N.A. Act, s. 91(26) (Marriage and divorce) - Effect of jurisdiction over custody in s. 11 of Divorce Act, R.S.C. 1970, c. D-8, on equitable jurisdiction of Newfoundland Supreme Court as parens patriae of children within its jurisdiction - Ontario Supreme Court in divorce proceedings awarded custody of a child to the mother - The child lived happily in Newfoundland with her aunt and uncle, who refused to give her to the mother - The mother brought a habeas corpus proceeding in the Newfoundland Supreme Court to obtain the child - The Newfoundland Court of Appeal held that s. 11 of the Divorce Act did not affect the equitable jurisdiction of the Newfoundland Supreme Court as parens patriae over infants within its jurisdiction - The Court of Appeal held that the Newfoundland Supreme Court had jurisdiction to determine the custody of the child between the mother and the aunt and uncle, notwithstanding the Ontario custody order.

Family Law - Topic 2122

Custody and access - Jurisdiction of Newfoundland court where custody order previously made in another jurisdiction - Parens patriae - Jurisdiction of Newfoundland Supreme Court - Whether overridden by s. 11 of Divorce Act, R.S.C. 1970, c. D-8 - Ontario Supreme Court in divorce proceedings awarded custody of the child to the mother - Child lived happily in Newfoundland with her aunt and uncle, who refused to give her to the mother - The mother brought a habeas corpus proceeding in the Newfoundland Supreme Court to obtain the child - The Newfoundland Court of Appeal held that the custody order in the Ontario divorce proceeding only affected the rights of the mother and father and not third parties - The Court of Appeal held that s. 11 of the Divorce Act did not affect the equitable jurisdiction of the Newfoundland Supreme Court as parens patriae over infants within its jurisdiction - The Court of Appeal held that the Newfoundland Supreme Court had jurisdiction to determine the custody of the child between the mother and the aunt and uncle notwithstanding the Ontario custody order.

Family Law - Topic 4060

Divorce - Corollary relief - Custody - Effect of custody order - The Ontario Supreme Court in a divorce proceeding awarded custody of the child to the mother - The child lived happily in Newfoundland with her aunt and uncle, who refused to give her to the mother - The mother brought a habeas corpus proceeding to obtain the child - The Newfoundland Court of Appeal held that the custody order in the Ontario divorce proceeding only affected the rights of the mother and father and not third parties - The Court of Appeal held that the Newfoundland Supreme Court had jurisdiction to determine the custody of the child between the mother and the aunt and uncle notwithstanding the Ontario custody order.

Cases Noticed:

McKee v. McKee, [1951] A.C. 352, appld. [para. 23].

Zacks v. Zacks (1973), 10 R.F.L. 53, refd to. [para. 26].

Jackson v. Jackson, 29 D.L.R.(3d) 641, refd to. [para. 26].

Gillespie v. Gillespie, 6 N.B.R.(2d) 227, 13 R.F.L. 344, refd to. [para. 26].

Re Fisheries Act 1914; A.G. Canada v. A.G. B.C., [1930] 3 A.C. 197, folld. [para. 26].

Richards v. Richards, 2 6 D.L.R.(2d) 264, refd to. [para. 26].

Hegg v. Hegg and Plauty, [1973] 3 W.W.R. 307, dist. [para. 27].

Skjonsby v. Skjonsby, 18 R.F.L. 95, dist. [para. 27].

Bray v. Bray, 15 D.L.R.(3d) 40, dist. [para. 27].

Re Squire, 16 R.F.L. 266, dist. [para. 27].

Goldstein v. Goldstein, 17 R.F.L. 340, dist. [para. 27].

Nash v. Nash, 16 R.F.L. 295, dist. [para. 27].

Re Perry, 33 D.L.R.(2d) 216, appld. [para. 30].

R. v. Gyngall, [1893] 2 Q.B. 232, appld. [para. 30].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11, sect. 12, sect. 14, sect. 15 [para. 24].

Counsel:

David Sparkes, for the appellant;

David Day, for the respondent.

This case was heard on March 23, 1976, before the Newfoundland Court of Appeal. On May 11, 1976, the following judgments were filed:

FURLONG, C.J.N., - see paragraphs 1 to 18,

GUSHUE, J.A., - see paragraphs 19 to 35,

MORGAN, J.A., - see paragraphs 36 to 58.

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