Sleigh v. Sleigh, (1984) 67 N.S.R.(2d) 87 (FC)

• Case Date: December 12, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 67 N.S.R.(2d) 87 (FC)

Sleigh v. Sleigh (1984), 67 N.S.R.(2d) 87 (FC);

    155 A.P.R. 87

MLB headnote and full text

Sleigh v. Sleigh

(File No. DM84-532)

Indexed As: Sleigh v. Sleigh

Nova Scotia Family Court

Niedermayer, F.C.J.

December 12, 1984.

Summary:

A common law wife applied for maintenance for herself and her two children and for possession of the family residence pursuant to the Family Maintenance Act. Her common law husband by preliminary motion sought to strike out the claim for the family home, arguing that the Family Court had no jurisdiction in this type of proceeding where the parties were unmarried and that the application was premature because the wife had not commenced an action respecting matrimonial property in any other court. The Nova Scotia Family Court dismissed the husband's motion.

Family Law - Topic 631.10

Husband and wife - Marital property - Matrimonial home - Interim possession - Section 7 of the Family Maintenance Act provided that where a Family Court judge made a maintenance order, he could also order that a spouse have the right to occupy or use the family residence until the rights to the home were determined by agreement of the parties or a court having competent jurisdiction - The Nova Scotia Family Court held that it was not necessary for an applicant to commence an action to enforce property rights in a court of competent jurisdiction before a s. 7 application but that such an action should be commenced shortly after a s. 7 order is made - See paragraphs 11 to 13.

Family Law - Topic 684

Husband and wife - Property rights during or after common law marriage - Family home - Section 7 of the Family Maintenance Act provided that where a Family Court judge made a maintenance order, he could also order that a spouse have the right to occupy or use the family residence until the rights to the home were determined by agreement of the parties or a court having competent jurisdiction - The Nova Scotia Family Court held that s. 7 applied to married and unmarried couples and therefore the court had jurisdiction to deal with an application by a common law wife for maintenance and interim possession of the family home - See paragraphs 1 to 9.

Cases Noticed:

Cluney v. Cluney (1983), 62 N.S.R.(2d) 339; 136 A.P.R. 339 (N.S.F.C.), folld. [para. 4].

Becker v. Pettkus (1980), 34 N.R. 384; 19 R.F.L.(2d) 165 (S.C.C.), refd to. [para. 4].

Gallagher v. Stark (1982), 56 N.S.R.(2d) 361; 117 A.P.R. 361 (N.S.F.C.), affd. (1983), 59 N.S.R.(2d) 376; 125 A.P.R. 376 (N.S.C.C.), refd to. [para. 4].

Cluney and W.M. v. H.M. (1984), 10:66 N.S.L.N. (F.C.), refd to. [para. 7].

Family Relations Act of British Columbia, Re (1982), 40 N.R. 206; 26 R.F.L.(2d) 113 (S.C.C.), sub. nom. Polglaze v. Polglaze, refd to. [para. 10].

Polglaze - see Family Relations Act of B.C., Re.

Statutes Noticed:

Family Maintenance Act, S.N.S. 1980, c. 6, sect. 2(m) [para. 3]; sect. 7 [para. 2].

Matrimonial Property Act, S.N.S. 1980, c. 9, generally [para. 4].

Counsel:

Kathy McDonald, for the wife;

William Ryan, for the husband.

This motion was heard on December 12, 1984, before Niedermayer, F.C.J., of the Nova Scotia Family Court, who delivered the following decision on December 12, 1984: