Arsenault v. Arsenault

Arsenault v. Arsenault Court Court of Appeal Date 2006-03-30 Citation 2006 NSCA 38 Docket CA 255764 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Arsenault v. Arsenault - 2006 NSCA 38 - 2006-03-30 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Arsenault v. Arsenault, 2006 NSCA 38 Date: 20060330 Docket: CA 255764 Registry: Halifax Between: Sheila Jewel Arsenault Appellant v. Joseph Francis Arsenault Respondent Judges: Bateman, Freeman and Oland, JJ.A. Appeal Heard: March 22, 2006, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Bateman, J.A.; Freeman and Oland, JJ.A. concurring. Counsel: Vincent K. Roberts, agent for the appellant respondent not appearing Reasons for judgment: [1] Sheila Jewel Arsenault appeals the order of Justice Douglas MacLellan of the Supreme Court of Nova Scotia wherein he determined that the Court did not have jurisdiction to grant her application for a corollary relief judgment. Mr. Arsenault is not participating in the appeal although he has, by affidavit, registered his opposition to the appeal being allowed. [2] The parties were divorced in Manitoba on February 4, 2002. Although they had executed a full and final separation agreement on August 31, 2001, they did not ask that it be incorporated into a corollary relief judgment. They sought and received only a judgment of divorce. [3] Ms. Arsenault moved to Truro, Nova Scotia in June of 2004. Mr. Arsenault now lives in New Brunswick. Ms. Arsenault says that Mr. Arsenault has not honored his spousal support obligations under the agreement. She sought the assistance of the Nova Scotia Maintenance Enforcement Program but was advised that a court order for support is required before taking action under that program. [4] With the assistance of her agent, Vince Roberts, who is not a lawyer, Ms. Arsenault applied to the Supreme Court of Nova Scotia for a corollary relief judgment incorporating the separation agreement. This she did by way of an Interlocutory Notice (Application Inter Parties) requesting “. . . an order pursuant to Civil Procedure Rule 57.00; for a Corollary Relief Judgement and in particular to incorporate the terms of the Separation Agreement dated August 2001”. Filed with the notice was Ms. Arsenault’s affidavit, setting out the circumstances which brought her before the Court. [5] The matter came on for hearing before MacLellan, J on August 2, 2005. Ms. Arsenault and her agent appeared. Mr. Arsenault was not in attendance or represented by counsel. The judge expressed his concern that he was without jurisdiction to grant a corollary relief order incorporating the agreement. Mr. Roberts, for Ms. Arsenault, while referring generally to Civil Procedure Rule 57, was unable to point to specific authority for the judge to do so. It was the judge’s view that he was being asked to “change the Manitoba order”. After considerable discussion, the judge dismissed the application on the basis that the Nova Scotia Court was without jurisdiction to grant such an order. The judge, when asked by Ms. Arsenault to provide written reasons, advised that the transcript adequately captured his decision on the matter. Accordingly, I have referred to the judge’s oral reasons in the transcript. A formal order dismissing the application for want of jurisdiction issued on September 26, 2005, and Ms. Arsenault filed her notice of appeal on September 30, 2005, within the time allowed under the Civil Procedure Rules. [6] For the reasons set out below, I respectfully disagree with the judge’s conclusion that the Nova Scotia Court is without jurisdiction to grant a corollary relief judgment incorporating the separation agreement. [7] The Divorce Act, R.S., 1985, c. 3 (2nd Supp.) (“Act”), is the Act currently in force. The jurisdictional sections relevant here are: 2. (1) In this Act . . . “corollary relief proceeding” means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a custody order; 4. (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court. . . . 15. In sections 15.1 to 16, “spouse” has the meaning assigned by subsection 2(1), and includes a former spouse. . . . 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (Emphasis added) [8] Prior to a 1993 amendment to the Act the predecessor sections provided: 3(1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding. . . . . . 4. A court has jurisdiction to hear and determine a corollary relief proceeding if the court has granted a divorce to either or both former spouses. 5(1) A court in a province has jurisdiction to hear and determine a variation proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court. 15.(1) In this section and section 16, “spouse” has the meaning assigned by subsection 2(1), and includes a former spouse. . . . 15 (2) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of (a) the other spouse.; ... (Emphasis added) [9] The current and pre-1993 wording of s. 4 are materially different. I repeat them for comparison purposes. The “old wording”: 4. A court has jurisdiction to hear and determine a corollary relief proceeding if the court has granted a divorce to either or both former spouses. The “new” wording: 4. (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court. [10] Both before and after the 1993 amendment, a court in a province other than that where the divorce was granted had jurisdiction to vary corollary relief based on the residence of the spouses. In that regard s. 5 of the Act governs: 5. (1) A court in a province has jurisdiction to hear and determine a variation proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court. [11] Clearly then, s. 4 was amended to reflect, in relation to original corollary relief proceedings, the same grant of jurisdiction which pertained to variation proceedings. It was a move away from the former requirement in s. 4 that only the court that granted the divorce had jurisdiction to determine original corollary relief. [12] Under the current Act, a court in a province other than that which granted the divorce has jurisdiction to “vary” an order which dismissed a claim for spousal support made contemporaneously with the request for a divorce judgment or to make an order for spousal support where none was contained in the corollary relief judgment made at the time of the divorce (see Tierney‑Hynes v. Hynes (2005), 75 O.R. (3d) 737; O.J. No. 2661 (Q.L.)(Ont. C.A.) at para. 66; leave to appeal dismissed [2005] S.C.C.A. No. 424). This was not always so under the predecessor statutes. It is consistent with this evolution in the law that jurisdiction over an originating application for corollary relief, which can now be made after the granting of the divorce judgment, not be limited to the court in the province where the divorce was granted. [13] Accordingly, with respect, I would find that the judge erred in dismissing Ms. Arsenault’s application on the basis that the Nova Scotia Supreme Court is without jurisdiction to issue a corollary relief judgment. That said, the form in which the matter was brought before the judge was faulty. There being no proceeding yet commenced in the Supreme Court, an interlocutory notice was not the appropriate document to initiate the claim. [14] Civil Procedure Rule 57 does not appear to provide for a form of originating document where an original application for corollary relief is made subsequent to the granting of a divorce, whether here or in another province. That Rule, as drafted, contemplates only corollary relief proceedings made in conjunction with a petition for divorce. The Rule has obviously not been revised to reflect the changes in the Act. In addition to Rule 57, where a matter is commenced in the Supreme Court, Family Division, Civil Procedure Rule 70 governs the procedure. Form 70.05A refers only to a petition for divorce where relief is claimed under the Act, once again not aligning with the current law. Until the Rules are revised to accommodate the changes in the law, and subject to more specific direction from the Supreme Court, I would suggest that when an original claim is made in the Family Division for corollary relief subsequent to the granting of a divorce, the relief be claimed under the “Other” section of Form 70.05A. In judicial centers where there is no Family Division I would suggest the appropriate document to commence such a proceeding would be an Originating Notice, either Action or Application Inter Partes (Civil Procedure Rule 9). I say this notwithstanding the current working of Rule 9.03. [15] I would allow the appeal but to the extent only of permitting Ms. Arsenault to recommence the application for a corollary relief judgment in the Supreme Court. There will be no costs of this appeal. Bateman, J.A. Concurred in: Freeman, J.A. Oland, J.A.