Citation: Quigley v. Willmore, 2008 NSCA 33
Date: 20080422
Docket: CA 287370
Registry: Halifax
Between:
Karen Quigley
Appellant
v.
Gary Willmore
Respondent
Judges: Roscoe, Cromwell, Saunders, JJ.A.
Appeal Heard: April 10, 2008, in Halifax, Nova Scotia
Held: The appeal is allowed to the extent of reinstating clauses 2 and 3 of the order of Justice MacLellan dated February 1, 2007. In all other respects, the appeal is dismissed per written reasons of the Court.
Counsel: David J. Bright, Q.C., and Terrance G. Sheppard
for the appellant
The respondent, on his own behalf
Reasons for judgment:
[1] After considering the submissions of the parties, we announced our unanimous decision that the appeal was dismissed except with respect to the status of an interim order pursuant to the Matrimonial Property Act, with reasons to follow. These are our reasons.
[2] This is an appeal from the decision of Justice Darryl W. Wilson of the Supreme Court (Family Division): 2007 NSSC 305; [2007] N.S.J. No. 426(QL); 45 R.F.L. (6th) 148; 2007 CarswellNS 451. The main issue on appeal is whether the appellant, Karen Quigley, satisfied the residence requirements of the Divorce Act prior to filing her petition for divorce in Nova Scotia on November 7, 2006.
Background:
[3] The respondent, Gary Willmore filed a petition for divorce in Liberty County, Texas on November 9, 2006. In August 2007 Mr. Willmore applied pursuant to Civil Procedure Rule 11.05 to strike out Ms. Quigley’s petition on jurisdictional grounds. Justice Wilson found that Ms. Quigley had not been ordinarily resident in Nova Scotia for at least one year immediately preceding the filing of her petition as required by s. 3(1) of the Divorce Act, R.S.C. 1985, (2nd Supp.), c. 3. The order of Justice Wilson set aside the petition for divorce and declared that all interim orders, interlocutory orders, execution orders, and judgments in the proceeding were void. Included in the orders declared void were interim orders giving custody of the eight year old child of the marriage to the appellant, and providing for access, child support and spousal support. As well, an order had issued releasing the respondent’s interest in their Nova Scotia matrimonial property, subject to accounting at a later date.
[4] The background and facts surrounding the marriage and the unusual living arrangements of the couple are comprehensively set out in the decision under appeal and need not be repeated here (see ¶ 6 to ¶ 36). For the purposes of this appeal it is sufficient to note that the parties were married on September 25, 1999 and separated in November, 2006. During the marriage they lived together in Milford, Nova Scotia for some periods and in Texas for other periods of time. When they were in Texas they maintained their home in Nova Scotia. They also spent long periods living separately, largely due to the fact that Mr. Willmore worked overseas in the oil industry and Ms. Quigley practiced law in Nova Scotia.
[5] The period of time on which it is necessary to specifically focus is November 2005 to November 2006. In that respect Justice Wilson concluded as follows:
53 The evidence establishes that the Petitioner was ordinarily resident in the Province of Nova Scotia from the time of her marriage in 1999 until late August, 2005. She was living in Milford, employed in her own law practice or by the Province of Nova Scotia as a solicitor and/or prosecutor, caring for her son and looking after her horses on the farm. The Respondent visited her and Ryan in Nova Scotia on his work leave and on occasion, the Petitioner and Ryan visited the Respondent in Texas. During the marriage, the Respondent resided with the Petitioner and Ryan in Nova Scotia on two (2) occasions for significant periods of time. Until August, 2005, I would characterize the Petitioner's time with the Respondent in Texas as visits or sojourns. The Petitioner would then return to Nova Scotia, her usual place of residence.
54 Although discussions took place in 2004 or early 2005 about the Petitioner and Ryan residing in Texas for Ryan's schooling and steps were taken to prepare for this potential move such as acquiring land, purchasing a modular home, moving some furnishings and horses, the Petitioner did not actually arrive in Texas with an intention to live there until late August of 2005.
55 It is the Petitioner's submission that she continued to be ordinarily resident in Nova Scotia after August 2005 because she maintained significant ties with Nova Scotia, including her law practice, membership in the Nova Scotia Barristers' Society, maintaining the family residence in Milford for her and Ryan's use when she was in Nova Scotia, continuing use of existing bank, insurance and other financial arrangements for the family through Nova Scotia organizations and she intended to return to Nova Scotia if the parties were unable to reside together as a family.
56 I find that when the Petitione[r] travelled with Ryan to Cleveland, Texas in August 2005 she intended to live with Ryan in Texas for his kindergarten school year. The Petitioner agreed to register Ryan in school in Texas to see if the parties could live together as a family. The Petitioner gave her Texas residence as Cleveland, Texas which was communicated to the Tarkington School District as Ryan's residence. The Petitioner was Ryan's primary caregiver. The Petitioner moved her horses to Texas and paid the same employee who cared for them in Nova Scotia to look after them in Texas. The Petitioner travelled to Nova Scotia for brief periods of time to deal with outstanding issues from her reduced law practice and then returned to Texas to care for Ryan. While in Texas she took mediation courses on two occasions. She initiated steps to set up a riding school in order to pay some of the expenses of maintaining the horses.
57 Ordinary residence refers to a person's residence in the course of a customary mode of life during the relevant time. Texas was the real home of the parties from August, 2005 until June 2, 2006. There was a fixed address, Ryan was attending school, the Petitioner was Ryan's primary caregiver, her horses were moved to Texas and being looked after by the same person who cared for them in Nova Scotia, she travelled to Nova Scotia for short trips to look after her law practice and returned to Texas to care for Ryan. She intended to live with the Respondent in Texas for an indefinite period to see if the parties could live together as a family. In this period of time, she was not a sojourner as she was on other occasions when she was residing in Nova Scotia and visiting the Respondent in Texas. I find that during this period of residence in Texas, she was regularly, normally, or customarily living in that State.
58 Although the Petitioner expressed an intention to return to Nova Scotia in January, 2006 after the Christmas tree incident, intention alone does not determine ordinary residence. The Respondent continued to reside in Texas from January 2006 to June 2006.
59 The Petitioner’s circumstances are not similar to those persons who maybe ordinarily resident in one jurisdiction but are posted in different jurisdictions for employment purposes and then return to their usual home. Some of these situations were referred to in the Ontario Court of Appeal decision in MacPherson, supra, which concluded that a person arriving in a new location with intent of making that location a home for a[n] indefinite period means the person is ordinarily a resident in that community. In this circumstance the Petitioner voluntarily moved to Texas with Ryan and was not ordered there as a condition of employment. The decision to move to Texas was a joint decision of the parties with the specific purpose to see if they could live together as a family.
60 Many of the factors that the Petitioner requests the court to consider as evidence that her ordinary residence during this time was Nova Scotia relate more to the concept of habitual resident or domicile which are distinct from the concept of ordinary residence as it has been interpreted in the Divorce Act.
61 Since June 2, 2006, the evidence establishes that the Petitioner was ordinarily resident in Nova Scotia. The Petitioner's horses were returned to Nova Scotia. The Petitioner and Ryan resided at the farm in Milford and the Petitioner was employed either in her law practice or with the Department of Justice for the Province of Nova Scotia. Ryan was enrolled in school in September. The Petitioner's home base was Nova Scotia when she visited the Respondent in Scotland during September and Texas during November, 2006.
62 Since the Court finds that the Petitioner was ordinarily resident in Texas from August, 2005 to June 2, 2006, which includes the period of time from November 6, 2005 to June 2, 2006, which is within the year preceding the issuance of the Divorce Petition, the Petitioner did not establish that she was ordinarily resident in Nova Scotia for at least one (1) year immediately preceding the commencement of these proceedings. The application to set aside the Petition for Divorce filed by the Petitioner on the grounds that this court has no jurisdiction is granted. Interim Orders issued in this proceeding are void.
Issues:
[6] The appellant states four grounds of appeal:
1. Did the Honourable Court err in law in its finding that the Appellant was not ordinarily resident in Nova Scotia for the one-year period preceding the filing of the Petition for Divorce within the meaning of s. 3 of the Divorce Act?
2. Did the Honourable Court err in law and in fact in failing to properly consider the relevant facts related to the issue of the Appellant’s residency when determining the legal issue of residency?
3. Did the Honourable Court err in rendering a decision that was not supported by the evidence?
4. Did the Honourable Court err in not severing the Applications made under other legislation, namely the Matrimonial Property Act and the Maintenance and Custody Act from those under the Divorce Act before declaring all Interim Orders to be void?
New Evidence:
[7] Both parties seek the admission of new evidence by way of affidavits on the appeal. As is the practice with such applications, we received the proposed fresh evidence but reserved our decision on its admission (R. v. Stolar, [1988] 1 S.C.R. 480; 40 C.C.C. (3d) 1 at p. 491 S.C.R., p. 8 C.C.C.). The test for admission of fresh evidence on appeal, directed to an issue of fact or law decided at trial, was set out by McIntyre, J., in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759; (1979), 50 C.C.C. (2d) 193. In Thies v. Thies (1992), 110 N.S.R. (2d) 177, this court approved the use of the Palmer test for admission of fresh evidence on appeals in civil cases. The test is that the proposed evidence must satisfy all of the following criteria: it is not generally admitted if, by due diligence, it could have been produced at trial; it must bear upon a potentially decisive issue; must be reasonably capable of belief; and must be such that, if believed, it could reasonably be expected to have affected the result.
[8] Much of the new evidence proposed in this case relates to matters that happened subsequent to the appearance before Justice Wilson. For example, in Ms. Quigley’s affidavit, she vehemently disputes a comment made by then counsel for Mr. Willmore at the hearing of the stay application in chambers in this court about whether she allowed Mr. Willmore to have a specific access visit. That evidence is not relevant to the issues before us on the appeal. In any event, representations by counsel in court about the facts are not evidence of those facts and should not be relied on as such. We have reviewed all of the proposed new evidence and find that but for the court records relating to ongoing proceedings both in Nova Scotia and Texas, we are not persuaded that the proffered documents are relevant to the issues before us on the appeal and therefore find them inadmissible. The decisions and orders made by judges in Texas and Nova Scotia subsequent to those made by Justice Wilson are admitted to complete the record.
Standard of Review:
[9] When considering whether a petitioner has met the residence requirements of the Divorce Act, a judge of first instance is addressing a question of mixed law and fact. Questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests: (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at ¶ 35). Here, Justice Wilson was required to first make the necessary findings of fact regarding where Ms. Quigley resided during the relevant period of time and then apply those facts to the legal standard of “ordinary residence”.
[10] In Ulnooweg Development Group Inc. v. Wilmot, 2007 NSCA 49, Saunders, J.A. provided a succinct summary of the standard of review:
[24] Deciding the appropriate standard of review depends on how one characterizes the particular question that is under scrutiny.
[25] 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 for example Housen v. Nikolaisen et al, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24; Campbell‑ MacIsaac v. Deveaux and Lombard, [2004] N.S.J. No. 250, 2004 NSCA 87; McPhee v. Gwynne‑Timothy, [2005] N.S.J. No. 170, 2005 NSCA 80; Flynn v. Halifax (Regional Municipality), [2005] N.S.J. No. 175, 2005 NSCA 81; and Secunda Marine Services Ltd. v. Liberty Mutual Insurance Company, [ 2006] N.S.J. No. 266, 2006 NSCA 82.
[11] The issues raised by the appellant in the first three grounds of appeal are questions of fact and questions of mixed fact and law without an extricable question of law, and will therefore be reviewed on the standard of palpable and overriding error. A palpable and overriding error of fact is a finding that is clearly wrong and is shown to have affected the result: H. L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, at ¶ 65 and 69. The fourth ground of appeal raises a question of law which will be reviewed for correctness.
Ordinary residence:
[12] We will deal with the first three grounds of appeal together and restate the combined question as: Did Justice Wilson commit palpable and overriding error in determining that Ms. Quigley was not ordinarily resident in the province of Nova Scotia for one year prior to filing the petition for divorce?
[13] The appellant concedes that Justice Wilson cited the relevant law and articulated the proper test respecting ordinary residence. She says however that Justice Wilson incorrectly applied the law to the facts. She argues that the facts support her contention that she was in Texas only for a limited and temporary purpose. She says that she went to Texas in order to see if she and Mr. Willmore could resolve their difficulties and save their marriage. It is submitted that she had no intention of becoming a resident of Texas. Her intention was to remain a resident of Nova Scotia and to return here as soon as her first son finished the school year. Additionally, since she maintained her home, work, and all her connections in Nova Scotia and returned to the province as often as possible, she says that her ordinary residence was Nova Scotia. The appellant argues that the totality and weight of the evidence supports a finding that her stay in Texas was “special” and “extraordinary” not “ordinary”.
[14] The relevant section of the Divorce Act states:
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.
[15] The term “ordinarily resident” is not defined in the Divorce Act. Many cases dealing with the issue start with the discussion of the term “ordinarily resident” in Thomson v. Canada (M.N.R.), [1946] S.C.R. 209 where the Supreme Court was dealing with the term in an income tax case. In that case each of the five judges wrote decisions with four of them agreeing that the appellant was ordinarily resident in the province of New Brunswick and thus liable to pay Canadian income tax. The judgments of Rand J. and Estey, J. appear to be those most commonly cited in the context of the Divorce Act. Justice Rand explained the meaning of the term at page 224 as follows:
In Lysaght v. Commissioners, supra, "residing" was examined by the House of Lords and it must, I think, be said that the language of "plain men" was stretched to the breaking point to encompass the facts that had been found by the Commissioners to be residence. The enquiry lies between the certainty of fixed and sole residence and the uncertain line that separates it from occasional or casual presence, the line of contrast with what is understood by the words "stay" or "visit" into which residence can become attenuated; and the difference may frequently be a matter of sensing than of a clear differentiation of factors.
The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance "residing" is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.
The expression "ordinarily resident" carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the per[s]on concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.
For the purposes of income tax legislation, it must be assumed that every person has at all times a residence. It is not necessary to this that he should have a home or a particular place of abode or even a shelter. He may sleep in the open. It is important only to ascertain the spatial bounds within which he spends his life or to which his ordered or customary living is related. Ordinary residence can best be appreciated by considering its antithesis, occasional or casual or deviatory residence. The latter would seem clearly to be not only temporary in time and exceptional in circumstance, but also accompanied by a sense of transitoriness and of return.
But in the different situations of so‑called "permanent residence", "temporary residence", "ordinary residence", "principal residence" and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited. On the lower level, the expressions involving residence should be distinguished, as I think they are in ordinary speech, from the field of "stay" or "visit".
[16] Justice Estey explained the term in this oft-quoted passage, starting at page 231:
A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives. One "sojourns" at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. Even in this statute under section 9(b) the time of 183 days does not determine whether the party sojourns or not but merely determines whether the tax shall be payable or not by one who sojourns.
[17] The only appellate court decision squarely facing this issue in the context of the residence requirements for filing a petition under the Divorce Act is MacPherson v. MacPherson, [1976] 70 D.L.R. (3d) 564. In that case, Evans, J.A., speaking for the court on the question of the definition of ordinarily resident, after referring to Thomson, supra, approved of the following statement from Macrae v. Macrae, [1949] 2 All E.R. 34:
Ordinary residence is a thing which can be changed in a day. A man is ordinarily resident in one place up till a particular day. He then cuts the connection he has with that place – in this case he left his wife; in another case he might have disposed of his house – and makes arrangements to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that date he is ordinarily resident at that place.
[18] The facts in the MacPherson case are very similar to those of the present case. The MacPhersons were married in Glace Bay, Nova Scotia and lived there until 1969 when they moved to Ontario. In September 1973 they returned to Glace Bay where they established a home. The wife visited Ontario for a three to four week period of time while they lived in Glace Bay and then she moved back to Ontario in April 1974. In July 1974 Mrs. McPherson filed a petition for divorce in Ontario. The Court of Appeal found that Mrs. MacPherson had not been ordinarily resident in Ontario for a year prior to filing the petition. Evans, J.A. explained:
15 In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community. In the present matter, while the husband and wife expressed opposing views as to their intention with respect to the establishment of a permanent residence in Nova Scotia, I do not believe that that intention alone can determine the issue of ordinary residence. Mrs. MacPherson left Ontario to reside with her husband and family with the intention of residing in Nova Scotia for an indefinite period of time. Her stated intention of returning to live in Ontario does not detract from the fact that she was ordinarily resident in Nova Scotia for that period which continued until she moved and established her residence in Ontario. The fact that Mr. MacPherson returned to Ontario in search of employment, leaving his wife and children in Nova Scotia, does not destroy the intimate community ties which Mrs. MacPherson had established in that Province.
[19] Another case with facts similar to those in the matter under appeal is Girardin v. Girardin, [1973] S.J. No. 255(Q.B.) which was cited with approval in MacPherson, supra. In Girardin, the petitioner had lived in Saskatchewan from 1954 to 1969 when she moved to Nova Scotia with her husband who was transferred there by his employer. She returned from Nova Scotia in September 1972 and filed her petition in Saskatchewan on August 13, 1973. Mrs. Girardin testified that her ordinary residence was Saskatchewan because she had lived there most of her life, she considered her parents’ home there to be her home, and she left many of her personal possessions there when they moved to Nova Scotia. She thought that she was never ordinarily resident in Nova Scotia because her husband was not there on a permanent basis because he was subject to being transferred to some other province at any time. Justice Disbery came to the conclusion that Mrs. Girardin was not ordinarily resident in Saskatchewan at the time she filed her petition, and explained the relevance of a person’s state of mind, in this passage:
17 When engaged in determining for jurisdictional purposes in matrimonial cases where a person is ordinarily resident, the persons state of mind may properly be taken into consideration for the limited purpose as to whether he was at the material time within the jurisdiction as a mere visitor, tourist or for some other temporary purpose; for example, on a business trip from another jurisdiction where he normally or customarily would be found living as one of the inhabitants thereof. If his home base was in another jurisdiction from which he ventured from time to time into other jurisdictions, he would, in my opinion, be ordinarily resident in the jurisdiction wherein his home base was situate, and he could not be said to be ordinarily resident in any other jurisdiction into which he intermittently travelled.
[20] Another case which is helpful because of the similarity of the facts to the matter under appeal is Arnold v. Arnold, [1998] S.J. No. 63. The parties were American citizens who lived together in Texas until 1996 when the husband’s employer posted him to Regina, Saskatchewan. At first he lived in a hotel and returned to visit his family in Dallas every weekend. In June 1996 the mother and children joined the father in Regina where they first lived in a hotel and later in a rented furnished apartment. They maintained their home with its furnishings in Dallas and had someone looking after it for them. Mr. Arnold returned to Texas in June 1997 and commenced divorce proceedings there. Mrs. Arnold filed a petition for divorce in Saskatchewan in July 1997. She testified that they anticipated living in Regina for at least two years and it was their home, while the husband argued they were in Regina as sojourners. It appeared that Mrs. Arnold spent significant periods of time in the United States during the year prior to filing her petition. McIntyre J. found that the petitioner had met the residence requirements and stated:
22 The issue is answered by asking where in the settled routine of her life the petitioner may be said to have regularly, normally or customarily lived in the year preceding the commencement of these proceedings. As noted in Thomson v. Minister of National Revenue, supra, it is not the length of the visit or stay that determines the question but rather the nature of the time spent. The sojourners presence is unusual, casual or intermittent. This is to be distinguished from a situation where a person may be said to be customarily or ordinarily living during a specified time frame even though residence is intended or known to be for a defined duration or purpose.
23 In June, 1996, the petitioner and the children moved to Regina to live with the respondent while he was working here. During much of the subsequent 12 months their house in Dallas was being house sat. The parties and their children lived in Regina as a family unit until the separation of the parties. The fact the petitioner was away for periods of time does not detract from the fact that from June, 1996, until their separation Regina was home base for the family unit.
24 To paraphrase the question used in Girardin, supra, if one asked where the parties lived in the period June of 1996 to their separation, the answer would be Regina. When the parties separated the respondent chose to return to Dallas, Texas, while the petitioner chose to remain in Regina.
25 While the children may not have become habitually resident in Saskatchewan for the purposes of The Children's Law Act, the test is different under the Divorce Act. The fact a person may be resident in a particular locale for a defined duration or purpose does not mean that the person cannot be said to be ordinarily resident in that locale during that period. There are many examples of people such as armed forces personnel who may be assigned to a specific locale for a specified period with the anticipation of being assigned elsewhere upon conclusion of the assignment. The question remains one of determining where the person m[a]y be said during that period of time to be regularly, normally or customarily living.
[21] 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.
[22] After thoroughly reviewing the evidence and considering the able argument made by the appellant’s counsel, and recognizing our restricted role and the required deference, we are not persuaded that Justice Wilson made any palpable or overriding error in his assessment of the facts, nor in his application of the law as summarized above. The factors that Justice Wilson relied upon in coming to his conclusion that Ms. Quigley was not ordinarily resident in Nova Scotia for the year prior to her filing her petition are numerous and significant. For example, Ms. Quigley established and moved into a home purchased by the couple on a farm in Texas, registered Ryan for school, transported 10 horses from Nova Scotia to Texas and had the person who looked after them in Nova Scotia move with her to Texas, took steps to begin a riding school, attended courses in mediation and looked into the possibility of working as a lawyer there. Although Ms. Quigley maintained her home in Nova Scotia and intended to return to the province at some point, the totality of the evidence supports Justice Wilson’s conclusion.
Severing the applications made under provincial legislation:
[23] The appellant submits that Justice Wilson should have severed the applications she made pursuant to the Matrimonial Property Act and the Maintenance and Custody Act prior to dismissing her petition and declaring all interim orders to be void. Apparently, the reason the appellant wishes to somehow revive applications made in November 2006 pursuant to provincial legislation is to indicate to the Texas courts that Nova Scotia retains jurisdiction over the dispute between the parties regarding custody, access, child support and spousal support. Although the court in Liberty, Texas made a temporary order pursuant to the petition filed by Mr. Willmore in April 2007, none of its provisions in relation to custody and matrimonial property are in conflict with the interim orders made in Nova Scotia that were voided by Justice Wilson.
[24] The first difficulty with this position is that Justice Wilson was never asked to sever the applications made under provincial legislation from the petition for divorce nor to make any new interim orders. It is therefore difficult to find that he erred by not severing the applications or granting new interim relief. The second problem is that the sections of the orders in question dealing with custody, access and support indicate on their face that they are made pursuant to the Divorce Act. The Maintenance and Custody Act is not referenced.
[25] The third and most significant difficulty with this ground of appeal is that while Justice Wilson may have been able to sever the applications if the request had been made, events that have occurred since the date of the order of Justice Wilson seem to make the request redundant at this point, at least with respect to custody and access. We have been advised through the filing of the decision of Justice R. James Williams, dated March 20, 2008 (2008 NSSC 96), that Ms. Quigley commenced another petition pursuant to the Divorce Act in December 2007. Justice Williams indicates in his decision that on December 20, 2007 the Texas court observed that Nova Scotia would take jurisdiction over the dispute. Justice Williams has assumed jurisdiction under the second divorce petition and has also invoked his parens patriae jurisdiction to make orders concerning the child. He has made an interim order for custody and access and determined that Nova Scotia is the forum conveniens. The next hearing before Justice Williams is scheduled for April 11, 2008 the day after the hearing of this appeal.
[26] Assuming without deciding, that this court could revive the interim orders made pursuant to the Maintenance and Custody Act in December 2006 in January 2007, in our opinion, it makes little sense to do so at this time given that Justice Williams has assumed jurisdiction over the outstanding matters between the parties.
[27] Parts of the interim order made by Justice MacLellan on February 1, 2007 are specifically made pursuant to the Matrimonial Property Act, not the Divorce Act. Clauses 2 and 3 of the order provide that the interests of Mr. Willmore in the Milford, Nova Scotia property be released and conveyed to Ms. Quigley, subject to his right to claim against her for the value of his interest in the final settlement between the parties, and that the order be registered under the Land Registration Act. There is no doubt that Justice Wilson had the jurisdiction to confirm the order respecting matrimonial property. Since this part of the interim order has been executed and third parties, including Ms. Quigley’s Trustee in Bankruptcy, have relied on the order, and since Mr. Willmore’s financial interests in the property remain subject to determination and accounting, it is appropriate to grant the relief sought by the appellant in respect to this part of the interim order.
[28] For these reasons the appeal on the jurisdictional question is dismissed, and the order of Justice Wilson setting aside the petition for divorce is confirmed. The order of Justice Wilson setting aside all interim orders, with the exception of clauses 2 and 3 of the order of Justice MacLellan dated February 1, 2007, respecting the matrimonial property, is also confirmed. Clauses 2 and 3 of the order of Justice MacLellan dated February 1, 2007 respecting the matrimonial property are reinstated and remain in full force.
[29] It is also ordered that the parties bear their own costs of the appeal.
Roscoe, J.A.
Cromwell, J.A.
Saunders, J.A.