Quigley v. Willmore, (2008) 272 N.S.R.(2d) 61 (SC)

• Judge: Williams, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 21, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 272 N.S.R.(2d) 61 (SC);2008 NSSC 353

Quigley v. Willmore (2008), 272 N.S.R.(2d) 61 (SC);

    869 A.P.R. 61

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.033

Karen Agnes Quigley (petitioner) v. Gary Willmore (respondent)

(1207-003129 (STD-056344); 1201-061186 (SFHD-049599); 2008 NSSC 353)

Indexed As: Quigley v. Willmore

Nova Scotia Supreme Court

Family Division

Williams, J.

November 26, 2008.

Summary:

A wife residing in Texas returned to Nova Scotia with her young son in June 2006. In November 2006, she petitioned for divorce in Nova Scotia. Two days later, the husband petitioned for divorce in Texas. Ex parte orders issued giving the wife interim custody. A Texas order gave the wife primary care and specified access to the husband, which was never complied with. The husband applied under rule 11.05 to set aside the wife's divorce petition on the ground that the Nova Scotia court had no jurisdiction where the wife was not ordinarily resident in Nova Scotia for at least one year immediately preceding her petition, as required by s. 3 of the Divorce Act.

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2007), 258 N.S.R.(2d) 368; 824 A.P.R. 368, allowed the application and set aside the wife's divorce petition for want of jurisdiction. The court found that the wife was ordinarily resident in Texas in the year prior to the divorce petition. The effect of the decision was that all ex parte orders were void. The wife appealed and applied under rule 62.10 to stay the order setting aside her divorce petition pending the appeal.

The Nova Scotia Court of Appeal, per Roscoe, J.A., in a judgment reported (2007), 260 N.S.R.(2d) 295; 831 A.P.R. 295, dismissed the application. Prior to the appeal being decided, the wife brought a second petition for divorce and sought custody. At issue was whether the court had jurisdiction to deal with the issues of custody and access. There were inconsistent custody orders in Nova Scotia and Texas.

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2008), 271 N.S.R.(2d) 77; 867 A.P.R. 77, held that it had jurisdiction over custody and access on the ground that the child's ordinary residence was now clearly Nova Scotia. The court had jurisdiction under the second divorce petition, the only one existing, unless the wife's appeal from the setting aside of the first petition was allowed. If the appeal was allowed, and the first petition was reinstated, resulting in the court losing jurisdiction under the second petition, the court would still have the parens patriae jurisdiction over custody and access. The court then awarded interim sole custody to the wife and access to the husband while he was in Nova Scotia.

Subsequently, the Nova Scotia Court of Appeal, in a judgment reported (2008), 264 N.S.R.(2d) 293; 847 A.P.R. 293, dismissed the appeal on the jurisdictional issue, agreeing with the setting aside of the first petition for want of jurisdiction. In Texas, the husband was granted a divorce, but the Texas court deferred to the Nova Scotia court on all other issues. The husband subsequently advised that he would not appear at trial and would no longer participate in the Nova Scotia court proceedings. Now at issue was the trial of the issues of divorce, custody and access, child support, spousal support, division of matrimonial property, a claim for exclusive possession of the matrimonial home and costs.

The Nova Scotia Supreme Court, Family Division, applied the principle of comity to stay the granting of a divorce in Nova Scotia. Likewise, the issue of child support, which was before the Texas courts on appeal, was stayed pending completion of the Texas proceedings. The wife was declared, under the Matrimonial Property Act, to be the owner of all real and personal property in her name and possession in Nova Scotia. The court held that it had parens patriae jurisdiction to deal with custody and access. As the husband declined to participate in the Nova Scotia proceedings, the court awarded sole custody to the mother. The husband was to have "in person" access as determined by the court, if he chose to apply for access.

Conflict of Laws - Topic 8

General - Doctrine of comity - [See Conflict of Laws - Topic 2127 ].

Conflict of Laws - Topic 2127

Family law - Divorce - Recognition of foreign decrees - Sufficiency of foreign domicile - Spouses residing in Texas separated in June 2006 when the wife returned to Nova Scotia with their child - In November 2006, the wife petitioned for divorce in Nova Scotia - Two days later, the husband sought a divorce in Texas - The wife's divorce petition was struck for want of jurisdiction, as she was not ordinarily resident in Nova Scotia for a sufficient time - The wife brought a second petition for divorce - The Texas court had, by that time, granted the husband a divorce, dealing with child support and Texas assets - The Texas court deferred the issue of custody to the Nova Scotia courts - The husband opposed the granting of a divorce in Nova Scotia on the ground that the court should recognize the Texas divorce - He declined to participate further in the Nova Scotia proceedings - Section 22 of the Divorce Act provided for recognition of a foreign divorce where the foreign court had jurisdiction and one of the spouses was ordinarily resident in the foreign jurisdiction for at least one year - The Nova Scotia Supreme Court, Family Division, applying the principle of comity, recognized the Texas divorce and declined to grant a divorce in Nova Scotia - The husband was resident in Texas for more than one year preceding his foreign divorce petition and there was no reason not to recognize the divorce - The Texas proceeding was commenced when the Nova Scotia courts had no jurisdiction - Texas was an appropriate forum to grant a divorce - There was no cogent evidence to establish that there were objective advantages available to the wife by the Nova Scotia courts taking jurisdiction over the issues of divorce, child support or Texas property - See paragraphs 10 to 37.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See Family Law - Topic 2122.1 ].

Family Law - Topic 2093

Custody and access - The hearing - Nonappearance of party - [See Family Law - Topic 2122.1 ].

Family Law - Topic 2122.1

Custody and access - Jurisdiction - Where foreign divorce recognized but no custody order made - Spouses residing in Texas separated in June 2006 when the wife returned to Nova Scotia with their child - In November 2006, the wife petitioned for divorce in Nova Scotia - Two days later, the husband sought a divorce in Texas - The wife's divorce petition was struck for want of jurisdiction, as she was not ordinarily resident in Nova Scotia for a sufficient time - The wife brought a second petition for divorce - The Texas court had, by that time, granted the husband a divorce, dealing with child support and Texas assets - The Texas court deferred the issue of custody to the Nova Scotia courts - The husband opposed the granting of a divorce in Nova Scotia on the ground that the court should recognize the Texas divorce - He declined to participate further in the Nova Scotia proceedings - The Nova Scotia Supreme Court, Family Division, recognized the Texas divorce, but the divorce was not yet final (under appeal) - The court held that until the foreign divorce was final, the Nova Scotia courts had no jurisdiction under the Divorce Act over custody - Given the existence of previous interim custody orders under the Divorce Act, there was no jurisdiction to deal with custody under the provincial Maintenance and Custody Act - However, where the child was in Nova Scotia, both spouses wished the Nova Scotia courts to deal with custody and the Texas court encouraged the Nova Scotia courts to take jurisdiction (Texas order did not deal with custody), the court exercised its parens patriae jurisdiction to resolve the custody issue - Sole custody was awarded to the wife - The husband's "in person" access was to be determined by the court when and if he chose to apply for access - See paragraphs 63 to 94.

Family Law - Topic 3503

Divorce - Jurisdiction - General - Courts - General - [See Conflict of Laws - Topic 2127 ].

Cases Noticed:

Cheema v. Cheema (2001), 151 B.C.A.C. 276; 249 W.A.C. 276; 2001 BCCA 84, refd to. [para. 11].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 11].

De Silva v. Pitts (2008), 232 O.A.C. 180; 2008 ONCA 9, refd to. [para. 11].

Eastern Power Ltd. v. Azienda Comunale Energia and Ambiente (1999), 125 O.A.C. 54; 1999 CarswellOnt 2807 (C.A.), refd to. [para. 11].

Arnold v. Arnold (1998), 164 Sask.R. 252 (Q.B.), refd to. [para. 16].

El Qaoud v. Orabi, 2005 NSCA 28, refd to. [para. 16].

Powell v. Cockburn (1977), 8 N.R. 215; 22 R.F.L. 155 (S.C.C.), refd to. [para. 19].

Rothgiesser v. Rothgiesser (2000), 128 O.A.C. 302 (C.A.), dist. [para. 68].

Okmyansky v. Okmyansky (2007), 225 O.A.C. 60; 86 O.R.(3d) 587 (C.A.), refd to. [para. 68].

Virani v. Virani (2006), 222 B.C.A.C. 178; 368 W.A.C. 178; 2006 BCCA 63, refd to. [para. 68].

Booker v. Leonard (2007), 321 N.B.R.(2d) 340; 827 A.P.R. 340; 2007 NBCA 1, refd to. [para. 68].

G.M. v. M.A.F., [2003] R.D.F. 794; [2003] R.J.Q. 2516 (Que. C.A.), refd to. [para. 71].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 22(1), sect. 22(3) [para. 14].

Counsel:

Karen Quigley, self-represented;

Gary Willmore, self-represented.

This matter was heard on October 21, 2008, at Halifax, N.S., before Williams, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on November 26, 2008.