Quigley v. Willmore, (2008) 264 N.S.R.(2d) 293 (CA)

• Judge: Roscoe, Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 22, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 264 N.S.R.(2d) 293 (CA);2008 NSCA 33

Quigley v. Willmore (2008), 264 N.S.R.(2d) 293 (CA);

    847 A.P.R. 293

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. AP.041

Karen Quigley (appellant) v. Gary Willmore (respondent)

(CA287370; 2008 NSCA 33)

Indexed As: Quigley v. Willmore

Nova Scotia Court of Appeal

Roscoe, Cromwell and Saunders, JJ.A.

April 22, 2008.

Summary:

A wife petitioned for divorce in Nova Scotia two days before the husband petitioned for divorce in Texas. 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 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. The appeal proceeded.

The Nova Scotia Court of Appeal dismissed the appeal on the jurisdictional issue.

Family Law - Topic 3542

Divorce - Jurisdiction, domicile, etc. - Residence - "Ordinarily resident" - Spouses married in 1999 in Nova Scotia - They had one child - The wife was a Nova Scotia lawyer - The husband was a Texas marine consultant who frequently travelled - The husband moved to Nova Scotia in 2000, but returned to his Texas employment in 2001 - In 2004, the wife moved to Texas, maintaining her reduced Nova Scotia law practice by periodically returning to Nova Scotia - The child attended school in Texas until June 2006 - The wife, unhappy in the marriage, returned with the child to Nova Scotia and petitioned for divorce in November 2006 - 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 wife submitted that notwithstanding her move to live in Texas, she remained "ordinarily resident" in Nova Scotia because of her continued employment, maintenance of a home, and the continuation of her banking, insurance and other financial arrangements - The trial judge allowed the application and set aside the wife's divorce petition for want of jurisdiction - The wife was ordinarily resident in Texas, not Nova Scotia, in the year prior to her divorce petition - The wife moved to Texas to live for an indefinite period to see whether the parties could live together as a family - She was not a sojourner visiting Texas - She was "regularly, normally or customarily living in that state" - The Nova Scotia Court of Appeal held that the trial judge made no palpable and overriding error in finding that the wife was not "ordinarily resident" in Nova Scotia in the year preceding her divorce petition - See paragraphs 12 to 22.

Family Law - Topic 3542

Divorce - Jurisdiction, domicile, etc. - Residence - "Ordinarily resident" - The Nova Scotia Court of Appeal stated that "from this review of the law, several themes emerge: the determination of ordinary residence is highly fact specific and a matter of degree; ordinary residence is in contrast to casual, intermittent, special, temporary, occasional or exceptional residence; residence is distinguished from a stay or visit; a person's ordinary residence is where she is settled-in and maintains her ordinary mode of living with its accessories, relationships and conveniences, or where she lives as one of the inhabitants as opposed to a visitor; an ordinary residence may be limited in time from the outset or it may be indefinite or unlimited; and ordinary residence is established when a person goes to a new locality with the intention of making a home there for an indefinite period." - See paragraph 21.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - The Nova Scotia Court of Appeal restated that: "An appeal is not a second trial. Our powers at the appellate level are constrained. On questions of law the judge must be right. Such questions are tested on a standard of correctness. Matters of fact, or inferences drawn from facts are owed a high degree of deference and will not be disturbed unless they resulted from palpable and overriding error. Matters said to be mixed questions of fact and law are also tested using the palpable and overriding error standard, unless the mistake can be easily linked to a particular and extricable legal principle, which will then attract a correctness standard. Where, however, the legal principle is not readily extricable, the question of mixed law and fact will be reviewable on the standard of palpable and overriding error." - See paragraph 10.

Cases Noticed:

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1, refd to. [para. 7].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 7].

Thies v. Thies (1992), 110 N.S.R.(2d) 177; 299 A.P.R. 177 (C.A.), refd to. [para. 7].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 9].

Wilmot v. Ulnooweg Development Group Inc. (2007), 253 N.S.R.(2d) 376; 807 A.P.R. 376; 2007 NSCA 49, refd to. [para. 10].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 11].

Thomson v. Minister of National Revenue, [1946] S.C.R. 209, refd to. [para. 15].

MacPherson v. MacPherson (1976), 70 D.L.R.(3d) 564 (Ont. C.A.), refd to. [para. 17].

MacRae v. MacRae, [1949] 2 All E.R. 34, refd to. [para. 17].

Girardin v. Girardin, [1973] S.J. No. 255 (Q.B.), refd to. [para. 19].

Arnold v. Arnold (1998), 164 Sask.R. 252 (Q.B. Fam. Div.), refd to. [para. 20].

Counsel:

David J. Bright, Q.C., and Terrance G. Sheppard, for the appellant;

The respondent, on his own behalf.

This appeal was heard on April 10, 2008, at Halifax, N.S., before Roscoe, Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal.

On April 22, 2008, the following judgment was delivered by the Court.