Smith v. Smith, (2012) 325 N.S.R.(2d) 12 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 24, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 325 N.S.R.(2d) 12 (SC);2012 NSSC 432

Smith v. Smith (2012), 325 N.S.R.(2d) 12 (SC);

    1031 A.P.R. 12

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.040

Ellie Norman Smith (applicant) v. Carel Patricia Smith (respondent)

(SYMPAY 080524; 2012 NSSC 432)

Indexed As: Smith v. Smith

Nova Scotia Supreme Court

LeBlanc, J.

June 7, 2012.

Summary:

A husband applied for exclusive possession of the matrimonial home on the basis that it was an integral part of his fishing business and that he needed the use of the jet tub because of a medical ailment.

The Nova Scotia Supreme Court dismissed the application.

Family Law - Topic 631

Husband and wife - Marital property - Matrimonial home - Right to possession of - A husband applied for exclusive possession of the matrimonial home on the basis that it was an integral part of his fishing business and that he needed the use of the jet tub because of a medical ailment - The parties were currently living separate and apart in the home, the wife on the main level and the husband on the lower level - The Nova Scotia Supreme Court dismissed the application - The husband had not made adequate attempts to locate other accommodations for himself, which was a prerequisite to any successful application for exclusive possession - His claim that the home was an integral part of his fishing operation was not made out - He did minor adjustments and repairs to his fishing gear in the matrimonial home and his computer was located in the home's lower level - Those activities could be relocated - The home's storage area was not necessary to his continued successful fishing operation as claimed - Insofar as his medical condition was concerned, the court required additional evidence to establish that he suffered from the alleged aliment and that the jet tub was the only means by which the ailment could be alleviated or curtailed - Although in some instances, the inherent jurisdiction was available to achieve a just and equitable result where necessary, the court could not invoke that jurisdiction here to override a specific provision of the Matrimonial Property Act.

Cases Noticed:

Mailman v. Mailman (1991), 107 N.S.R.(2d) 33; 290 A.P.R. 33 (T.D.), refd to. [para. 14].

Goodwin v. Goodwin (2009), 276 N.S.R.(2d) 239; 880 A.P.R. 239; 2009 NSSC 109, refd to. [para. 15].

Legg v. Legg, [2010] N.S.R.(2d) Uned. 186; 2010 NSSC 326, refd to. [para. 16].

Lindsay v. Lindsay (1991), 106 N.S.R.(2d) 128; 288 A.P.R. 128 (T.D.), refd to. [para. 17].

College Housing Co-Operative Ltd. and College Housing Inc. v. Baxter Student Housing Ltd. and R.C. Baxter Ltd., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 22].

Halifax (Regional Municipality) v. Ofume (2003), 218 N.S.R.(2d) 234; 687 A.P.R. 234; 2003 NSCA 110, refd to. [para. 23].

Authors and Works Noticed:

Jacob, I.H., Inherent Jurisdiction of the Court (1970), 23 Curr. L. Prob. 23, generally [para. 24].

Counsel:

Louis d'Entremont, for the applicant;

Celia J. Melanson, for the respondent.

This application was heard at Yarmouth, Nova Scotia, on May 24, 2012, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered judgment orally on June 7, 2012, and the following written reasons on December 12, 2012.