Laurie Goyeche Applicant And: ROBERT HILL RESPONDENT AND: JAMES J. SMYTH INTENDED FIRST THIRD PARTY AND: BARRY, SMYTH, HURLEY, WOODLAND, WALSH INTENDED SECOND THIRD PARTY, 2019 NLSC 74

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Goyeche v. Hill , 2019 NLSC 74 Date : April 1, 2019 Docket : 201801G8666 Between: Laurie Goyeche Applicant And: ROBERT HILL RESPONDENT AND: JAMES J. SMYTH INTENDED FIRST THIRD PARTY AND: BARRY, SMYTH, HURLEY, WOODLAND, WALSH INTENDED SECOND THIRD PARTY Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 22 and 26, 2019

Summary: This decision concerns the transfer power vested in the Family Division under

section 43.10 of the Judicature Act , and the appropriateness of adding a Third Party negligence claim to an existing family law proceeding. The application to commence a Third Party claim was dismissed.

Appearances: No Appearance On behalf of the Applicant Stephen J. May, Q. C. Appearing on behalf of the Respondent Gregory M. Smith Appearing on behalf of the Intended Third Parties Authorities Cited: CASES CONSIDERED: Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43; Canada (Attorney General) v. TeleZone Inc., 2010 SCC62; George v. Newfoundland and Labrador, 2016 NLCA 24; Newfoundland and Labrador (Royal Newfoundland Constabulary Chief) v.Newfoundland and Labrador (Royal Newfoundland Constabulary Public Complaints Commissioner), 2014 NLTD(G) 80); Zahn v.

Zahn,1995 CarswellNfld 332 (U.F.C.); Barnes v. Barnes, 2010 NLCA 17; Lemoine v. Lemoine, (1990), (NL SC), 80 Nfld.& P.E.I.R. 339, 1990 CarswelllNfld 205 (T.D.); Ryan v. Dew Enterprises Ltd., 2014 NLCA 11; MacDonald v. Legault, 2000CarswellOnt 5372; Fitzpatrick v. A. Harvey & Co. (1986), 59 Nfld. & P.E.I.R. 144, 1986 CarswellNfld 96 (Nfld. S.C. (T.D.)) STATUTES CONSIDERED: Limitations Act, S.N.L 1995, c. L-16.1; Judicature Act, R.S.N.L. 1990, c. J-4;

Interpretation Act,R.S.N.L. 1990, c. I-19; Unified Family Court Act, R.S.N.L. 1990, c. U-3 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] This case concerns an application by the Respondent, Robert Hill, to add Third Parties to an existing family law proceedingcommenced in the Family Division, involving Laurie Goyeche, as Applicant and Robert Hill.

The family law proceeding was transferredfrom the Family Division to this court for the sole purpose of deciding the Third Party application. [2] At issue is the jurisdiction of this court, sitting as part of the General Division, and whether the test for adding the ThirdParties has been met. background [3] On 25 November 2016, an Originating Application was filed in the Family Division of the Supreme Court of Newfoundlandand Labrador, in St. John’s, with Laurie Goyeche (Ms. Goyeche) as Applicant and Robert Hill (Dr. Hill) as Respondent (the “family lawproceeding”). [4] In the family law proceeding Ms.

Goyeche claimed, inter alia, an entitlement to a division of matrimonial property, includingDr. Hill’s pension plan, as well as spousal support. [5] Dr. Hill contested the family law proceeding on the basis that in 1993 his former solicitor, James J. Smyth, Q.C. (Mr. Smyth),the First Intended Third Party, prepared a Marriage Agreement which precluded Ms. Goyeche from claiming his pension or spousalsupport. [6] In his affidavit in support of the within application, Dr. Hill states that he and Ms. Goyeche separated on 23 August 2016, andon or about 20 December 2017 he received the Marriage Agreement from Mr. Smyth.

According to Dr. Hill, upon receiving theMarriage Agreement he learned that “the Agreement was not enforceable due to the fact that Goyeche’s signature and my signature werenot witnessed when we signed it.” [7] In his affidavit Dr. Hill further deposes that, “as a result of the Agreement not being enforceable”, on 19 April 2018 aConsent Order declaring that Ms. Goyeche is entitled to a portion of his pension was filed in the family law proceeding. On that date thisOrder was endorsed as a Final Order on Consent by a judge of the Family Division, thus resolving the pension issue as between Ms.Goyeche and Dr. Hill.

[ 8 ] On 20 January 2018 an Interim Order was entered in the family law proceeding with respect to the payment of spousal support to Ms. Goyeche by Dr. Hill. [ 9 ] On 6 November 2018 an Interim Order on Consent was entered in the family law proceeding, terminating Dr. Hill’s obligation to pay spousal support effective 15 October 2018. In this Interim Order the parties agreed that it would not be binding on them as a Final Order. [ 10 ] In his affidavit, Dr.

Hill states that his initial inability to locate the Marriage Agreement, and his subsequent determination that it was unenforceable, has resulted in him making 21 monthly spousal support payments, commencing on 15 January 2017. [ 11 ] On 24 May 2018 Dr. Hill issued a Statement of Claim in this court (2018 01G 3350) naming James J. Smyth as First Defendant and the partnership of Barry, Smyth, Hurley, Woodland, Walsh, as Second Defendant (the “negligence claim”). [ 12 ] In the negligence claim, Dr.

Hill seeks “damages arising from Smyth’s and the partnership’s breach of duty owed to him in contract and Smyth’s breach of duty owed to him in tort”. The duty alleged was to ensure that the Marriage Agreement was enforceable. Dr. Hill also claims damages arising from his reliance on Mr. Smyth’s alleged “negligent representation” that the Marriage Agreement was valid, as initialed and signed by the parties, but not witnessed. [ 13 ] On 4 September 2018 Mr. Smyth applied to strike the negligence claim on the basis that section 14(3) of the Limitations Act , S.N.L 1995, c.

L-16.1 bars a claim in professional negligence after the expiration of the ten year period following the date of the act or omission. This application has not yet been heard. [ 14 ] In the meantime, on 23 November 2018 Dr. Hill filed an “Interim Application for a Procedural Order (Family Law)” in the Family Division, seeking an order pursuant to

section 43.10(1) of the Judicature Act , R.S.N.L. 1990, c. J-4 , transferring the family law proceeding to the General Division. [ 15 ] In the transfer application Dr. Hill states that the transfer is sought in order “to seek leave to issue a Third Party claim against Smyth since the Limitations Act states that there is not a time limitation to a Third Party claim and this court [the Family Division] does not have jurisdiction over the Respondent’s [Dr. Hill’s] claim seeking indemnification from Smyth.” [ 16 ] This objective was confirmed by counsel for Dr.

Hill at the hearing in the Family Division of the application to transfer: MR. MAY, Q.C.: … However, under that same Limitations Act there is no time limitation in respect of a third party claim, and we wish to file and bring and application for a third party claim in this proceeding here.

The concern in my view in terms of dealing with it here is whether the statutory jurisdiction in this court allows this court to make a determination of solicitor’s negligence based on a finding that the Matrimonial Agreement was unenforceable, and as a result our intention here is to apply for this proceeding to be transferred to the General Division to allow an application to be brought to add a third party proceeding where there would be no time limitation.

If that application is granted there could be then an application to sever that third party proceeding from this action allowing this action to be returned to this court for determination while the third party proceeding can still be dealt with in the General Division. [ 17 ] On 28 November 2018 a judge of the Family Division granted Dr. Hill’s transfer request and made the following Order: 1. Having found that there is a preponderance of convenience for this proceeding to be dealt with by the Supreme Court of Newfoundland and Labrador, General Division at St.

John’s, Newfoundland and Labrador, this proceeding shall be transferred to the Supreme Court of Newfoundland and Labrador, General Division, Newfoundland and Labrador forthwith. [ 18 ] On 18 December 2018, Mr. Smyth filed a Notice of Appeal in the Supreme Court of Newfoundland and Labrador, Court of Appeal, appealing the decision of the Family Division to transfer the family law proceeding to the General Division. To date, no further steps have been taken on this appeal.

Nor is there a stay of the transfer Order. [ 19 ] The family law proceeding (2016 02F 0973) was subsequently received by the General Division, which for tracking purposes assigned it a General Division file number, 2018 01G 8666. [ 20 ] As received by the General Division, the file contains the following undated note appended to its cover: This file was transferred to General Division from Unified Family Court (sic.) for the purpose of hearing a specific application. It is understood that the file will be transferred back to the Unified Family Court (sic.) after the application has been heard.

As the file will be transferred back to Unified Family Court (sic.) at some point, access to this file will be determined by Family Court Rule F 2.02. A party may at any time apply for an order permitting access to the Court record of a proceeding. Rule 3 says an officer of the Court can apply in accordance with Rule F 16 for an interim application, without notice, for a procedural order. Form is required to be filed out indicating why access is required and an undertaking must be provided. [ 21 ] On 31 December 2018 Dr.

Hill filed the within application in the transferred family law proceeding, pursuant to Rule 12.03 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D for leave to commence a third party proceeding against Mr. Smyth and the law firm partnership. [ 22 ] The cause of action in the draft Third Party Statement of Claim, as appended to the application, mirrors that in the negligence action previously commenced by Dr. Hill in the General Division.

Issues [ 23 ] The issues raised by the within application relate to the court’s jurisdiction and the test for adding Third Parties. As raised by the Intended Third Parties, the jurisdictional issues are twofold: 1) Does the General Division have jurisdiction over a proceeding appropriately started in the Family Division and transferred to the General Division, if both Divisions are in the same judicial area? 2) Is the General Division’s jurisdiction limited to the subject matter jurisdiction of the Family Division, following transfer of a family law proceeding under

section 43.10(1) of the Judicature Act ? [ 24 ] Assuming the court has jurisdiction to adjudicate the Third Party claim in this instance, the remaining issue may be stated, as follows: 3) Does Dr. Hill’s application meet the test for adding the Third Parties? THE COURT’S JURISDICTION [ 25 ] The starting point for consideration of the jurisdictional issues must be the principles of statutory

interpretation and the legislative framework. Principles of

Interpretation [ 26 ] As the Court of Appeal observed in Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 , the starting point for the

interpretation of any statute in this province is the legislature’s own directive as found in s.16 of the

Interpretation Act , R.S.N.L. 1990, c. I-19 : 16. Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive the liberal construction and

interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to its true meaning [ 27 ] In the application of

section 16, the Court of Appeal in Archean Resources provided the following guidance (at paragraphs 22 – 23): 22. Instead of mandating some fictionalized search for a collective "legislative intention", s. 16 directs the court to consider every provision "remedial" and to interpret it so that it "best" ensures the attainment of its "objects" according to its "true" meaning.

This requires a consideration, as an integral part of the interpretive exercise, of the problem or "mischief" to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court's general knowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a "true" meaning.

That inevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear or unambiguous they may at first blush appear. The surrounding text, the interrelation of other related statutes, the social and legislative context in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise .

Obviously, if the bare words of the relevant provision appear to be straightforward and seem on their face to admit of only one meaning, they may end up controlling the result, but even in such a case, it is not sufficient to stop the interpretive exercise at this "plain" meaning; s. 16 requires that at the very least this plain meaning be given a "reality check" by being tested against other relevant sources of meaning to ensure that there is not some nuance or variation in the normal or apparent meaning that might indicate a different meaning in the particular context under consideration.

"True" meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators of meaning that the court is directed to consider. 23. In truth therefore, s. 16 enunciates a principle of harmonization in which the courts are directed, in cases of dispute, to adopt and apply an

interpretation that fairly reconciles the language used in the enactment with the broader objects of the legislation so as to achieve the general goal, or to rectify the mischief, to which the legislative act appears to have been directed .

That exercise determines the general ambit of impact of the legislative act and provides the basis for the court to conclude whether the particular fact situation before it should fall inside our outside that ambit. [emphasis added] [ 28 ] In the present circumstance, the court is required to apply the foregoing interpretative principles to a question of the jurisdiction of the General Division and Family Division, both of which comprise the Supreme Court of this province. [ 29 ] In Canada (Attorney General) v.

TeleZone Inc. , 2010 SCC 62 the Supreme Court of Canada had the following to say respecting the jurisdiction of a Superior Court (at paras. 43 – 44): 43. The oft-repeated incantation of the common law is that "nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged": Peacock v. Bell (1667), 1 Wms. Saund. 73 , 85 E.R. 84 (Eng. K.B.) , at pp. 87-88 .

In contrast, the jurisdiction of the Federal Court is purely statutory.

44. The term "jurisdiction" simply is shorthand for the collection of attributes that enables a court or tribunal to issue an enforceable order or judgment. A court has jurisdiction if its authority extends to "the person and the subject matter in question and, in addition, has authority to make the order sought"… [ 30 ] In a similar vein, our Court of Appeal in George v.

Newfoundland and Labrador , 2016 NLCA 24 , has confirmed that a statute should “not be interpreted as abrogating the inherent jurisdiction of the Superior Courts unless it employs clear language to this effect” (at paragraph 117). [ 31 ] The observation in Canada (Attorney General) and George are apropos, for as we shall see in the Judicature Act there is clear language placing limitations on the jurisdiction of the Family and General Divisions. The Statutory Framework [ 32 ] The Supreme Court is addressed in

Part II of the Judicature Act . This Part, in turn is divided into three divisions. Division 1 - General Provisions; Division 2 – Supreme Court – General Division and; Division 3 – Trial Division – Family Division. [ 33 ] Section 21(3) of the Judicature Act provides that the Supreme Court “shall be composed of 2 divisions called the General Division and the Family Division” (unless otherwise stated, all

section references herein refer to the Judicature Act ). [ 34 ] The starting point for the jurisdictional inquiry is

section 23. It provides that the Supreme Court has jurisdiction over all civil and criminal proceedings that were in the former jurisdiction of the Trial Division. No limitations are thus placed on either the General Division or the Family Division by operation of this section, as both are divisions of the Supreme Court. That is not the end of the matter, however. [ 35 ] The subject matter jurisdiction of the General Division is set forth in

section 43.2, as follows: 43.2 The General Division has jurisdiction over (

a) all civil and criminal proceedings, including pending civil and criminal proceedings, that were within the jurisdiction of the Trial Division of the Supreme Court of Newfoundland and Labrador immediately before the commencement of this section; (

b) all civil and criminal proceedings of original and appellate jurisdiction that may be conferred on it under

an Act of the province or

an Act of the Parliament of Canada; and (

c) all proceedings that are within the subject-matter jurisdiction of the Family Division in areas in the province not included in a judicial area or the expanded service area. [ 36 ] Subsection 43.2(

c) references the subject matter jurisdiction of the Family Division, as distinct from “all civil and criminal proceedings.” [ 37 ] In keeping with the principles of

interpretation in Archean Resources the court was provided with the social and legislative context surrounding the creation of the Family Division. [ 38 ] It is clear that in examining the legislative context the court may consider extrinsic aids such as debates of the House of Assembly as recorded in Hansard (see Newfoundland and Labrador (Royal Newfoundland Constabulary Chief) v.

Newfoundland and Labrador (Royal Newfoundland Constabulary Public Complaints Commissioner ) , 2014 NLTD(G) 80). [ 39 ] In 2009 the House of Assembly sat on the second reading of Bill 18, an Act to Amend the Judicature Act (the “Proposed Act”). Prior to the Proposed Act the Supreme Court was comprised of the Trial Division and Court of Appeal. The Proposed Act would reorganize the Trial Division into two divisions: i. To reorganize the trial division of the Supreme Court into two parts.

One will be a general division that will have a responsibility for all matters at the Supreme Court level in this Province other than family law matters; it will create a new family division that will have responsibility, obviously, for family law matters in areas of the Province that currently are served in that regards by what is called the Unified Family Court and new areas to be set up; ii. the areas of the Province where the family division would exercise its authority would initially be the same as that currently exercised by the Unified Family Court, but it can be expanded by the Cabinet regulation, who would have the authority to pass regulations, increasing the number of areas in the Province where this act would apply.

The first would be in Western Newfoundland; iii. the subject matter jurisdiction of the family division is changed to reflect current developments in family law jurisprudence and to modernize the language commonly used in family law matters. iv. The repeal of the Unified Family Act.

Reference : Hansard , Vol. XLV1NO. 22 (19 May 2009) (Hon. T. Marshall) [ 40 ] The Family Division (formerly Unified Family Court) is a specialized court with subject matter jurisdiction to hear all issues raised in family law without the need to go to different courts for resolution of different issues. It is designed to reduce time, conflict and the cost of litigation. In the fulfillment of this function, the Family Division provides easy access to a full range of family justice services, directed to education, mediation and alternative dispute mechanisms, based on consent rather than an adversarial approach.

Judges of that Division have particular expertise in the resolution of family law matters ( Hansard , Vol XLVI No. 22 (19 May 2009) (Hon. T. Marshall)). [ 41 ] In recognition of the specialized nature of the Family Division,

section 43.9 provides for its exclusive subject matter jurisdiction, as follows: 43.9(1) The Family Division has and may exercise the powers and duties possessed by the Trial Division in relation to, and has and may exercise exclusive jurisdiction in relation to, proceedings in the following matters taken in a judicial area or the expanded service area, other than by way of appeal: (

a) formation of marriage; (

b) divorce; (

c) dissolution and annulment of marriage; (

d) judicial separation and separation orders; (

e) disputes in relation to property between spouses, former spouses, partners as defined in paragraph 35(

c) of the Family Law Act or former partners and whether seeking relief by way of resulting trust, constructive trust, unjust enrichment, monetary award or otherwise; (

f) applications under the Family Relief Act ; (

g) declarations of status including validity of marriage and parentage of a child; (

h) entitlement to support arising under the Family Law Act or the Divorce Act (Canada) ; (

i) enforcement of support orders including reciprocal enforcement of these orders; (

j) parenting orders with respect to children; (

k) adoption; (

l) protective intervention matters relating to children under the Child, Youth and Family Services Act ; (l.1) protective intervention matters relating to adults under the Adult Protection Act; (

m) interspousal and familial torts;

(

n) the consent to medical treatments of minors; (

o) applications for the change of name of a minor; (

p) the

interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement or paternity agreement; and (

q) those other matters stated as being within the jurisdiction of the Family Division under

an Act of the province or of the Parliament of Canada.

(2) Nothing in this Act shall be interpreted to derogate from or suspend the powers of the Provincial Court of Newfoundland and Labrador outside a judicial area or in the expanded service area referred to in subsection 43.5(5) or to confer upon the Family Division jurisdiction outside a judicial area or the expanded service area which the Trial Division would not otherwise have.

(3) The jurisdiction of the Family Division may be exercised by a presiding judge of the Family Division or a judge of the General Division who has been designated by the Chief Justice under subsection 43.6(5).

(4) For the purpose of paragraph 266 (b), sections 733.1 , 810 and 811 of the Criminal Code , a judge of the Family Division has the powers of a Provincial Court judge under the Criminal Code in matters arising within a judicial area or the expanded service area.

(5) In relation to a proceeding otherwise before him or her, a judge of the Family Division has jurisdiction to vary or terminate an emergency protection order issued under

section 5 of the Family Violence Protection Act. [ 42 ]

Section 43.11 recognizes circumstances where the jurisdiction of the Family Division may be extended beyond its

section 43.9 subject matter jurisdiction, to include matters within the jurisdiction of the General Division. It reads: 43.11 Where a proceeding is started in the Family Division in a matter over which jurisdiction may be exercised in the Family Division and it is combined with a matter within the jurisdiction of the General Division, the Family Division may, with the consent of the parties, determine and dispose of the combined matters. [ 43 ] Where a proceeding is appropriately started in the Family Division, but it includes a matter within the jurisdiction of the General Division, the Family Division may dispose of the combined matters with the consent of the parties . While

section 43.11 it does not state so expressly, in adjudicating upon the General Division matter in this instance the Family Division draws upon its Supreme Court jurisdiction in

section 23. [ 44 ] The case of Zahn v. Zahn , 1995 CarswellNfld 332 (U.F.C.) serves as an example of how

section 43.11 might operate. While Zahn addressed what was then

section 8 of the Unified Family Court Act , R.S.N.L. 1990, c. U-3 the operative language is identical to

section 43.11 of the Judicature Act . [ 45 ] In an amended defence and counterclaim, the husband asserted that his wife’s failure, following separation, to execute a renewal of the mortgage on the matrimonial home, amounted to misrepresentation on her part. Misrepresentation is a tort not falling within the subject matter jurisdiction of the Unified Family Court. However, the parties consented to the adjudication of this issue in the Unified Family Court and Orsborn, J. proceed to do so. [ 46 ] Sections 43.9 and 43.11 are examples of the clear language limitation contemplated in George .

There are two sides to the coin. In judicial areas serviced by the Family Division, that Division’s jurisdiction is limited to the matters prescribed in

section 43.9, subject only to the exceptions in

section 43.11. At the same time, in those areas, the Family Division’s jurisdiction is exclusive, such that those matters are removed from the jurisdiction of the General Division. [ 47 ]

Section 43.4(2) creates a further exception, this time as it relates to the General Division. [ 48 ]

Section 43.4 provides for those circumstances where a proceeding is started in the General Division that should have been started in the Family Division. It reads: 43.4(1) Where a proceeding is started in the General Division that should have been started in the Family Division, a judge of the General Division may direct the proceeding to be transferred to the Family Division, and steps taken by a party in the proceeding and orders made before the transfer are valid and effective as if they were made in the Family Division. (2)Notwithstanding subsections (1) and 43.9(1), where a matter which would otherwise be within the jurisdiction of the Family Division under paragraph 43.9(1)(

e) arises incidentally or would affect a result in a proceeding in the General Division, a judge of the General Division may proceed to adjudicate that issue but all persons affected shall be given notice of the proceeding and an opportunity to be

heard. [ 49 ] Subsection 43.4(2) carves out an exception in relation to a proceeding in relation to

section 43.9(1)(e), disputes in relation to property. Where such disputes arise incidentally, or would affect a result in a proceeding in the General Division, a judge of the General Division may adjudicate that issue upon notice to all persons affected and after providing an opportunity to be heard. In such circumstances, that issue stands as an exception to the exclusive jurisdiction of the Family Division under

section 43.9(1). [ 50 ] Finally, in terms of the relevant statutory framework

section 43.10 provides for a transfer to the General Division of a proceeding started in the Family Division. It reads: 43.10(1)Notwithstanding

section 43.9, a judge of the Family Division may, upon application, order that a proceeding started in the Family Division be transferred to the General Division or another appropriate court whether inside or outside a judicial area or the expanded service area referred to in subsection 43.5(5) where, in the opinion of the judge, there is a preponderance of convenience for the proceeding to be dealt with by that division or court. (2)The provisions of this Act relating to the transfer of a proceeding to another division or court under subsection (1) shall apply, with the necessary changes, to that proceeding in the other division or court. (3)Where a proceeding that should not have been started in the Family Division is started in that division, a judge of the Family Division may direct the proceeding to be transferred to the General Division or another court, and steps taken by a party in the proceeding and orders made before the transfer are valid and effective as if they were made in the division or court in which the proceeding ought to have been started. [ 51 ]

Section 43.10(1) is the vehicle whereby the family law proceeding was transferred from the Family Division to this court. issues 1) Does the General Division have jurisdiction over a proceeding appropriately started in the Family Division and transferred to the General Division, if both Divisions are in the same judicial area? [ 52 ] It is common ground that the General Division, to which the family law proceeding was transferred in this instance, falls within the “judicial area”, as defined, of the Family Division from whence it came. [ 53 ] It will be recalled that subsection 43.2(

c) provides that the General Division has jurisdiction over: (

c) all proceedings that are within the subject-matter jurisdiction of the Family Division in areas in the province not included in a judicial area or the expanded service area . [emphasis added] [ 54 ] As a consequence of the highlighted language in

section 43.2(c), the Intended Third Parties argue that the General Division has no jurisdiction over the transferred family law proceeding in this instance. According to the Intended Third parties, the General Division’s jurisdiction is limited to areas of the province not included in a judicial area or expanded service area. [ 55 ] The test for transfer is whether there is a “preponderance of convenience” for the proceeding to be dealt with by the General Division, or another court. According to the Intended Third Parties, where judicial areas don’t change there can be no “convenience” in a transfer, as the territory remains the same. They argue that the language in

section 43.10(1) “whether inside or outside a judicial area or the expanded service area”, is intended to qualify the preceding reference to “another court” and not the reference to “General Division.” [ 56 ] The Intended Third Parties argue that this

interpretation is necessary in order to avoid a conflict between the transfer power under

section 43.10(1) and the jurisdiction of the General Division under

section 43.2(c). [ 57 ] With the greatest respect, I do not agree. [ 58 ] I see no inconsistency in the transfer language of

section 43.10(1) and the subject matter jurisdiction language in

section 43.2(c). In areas not included in a judicial area or expanded service area, the General Division has the same subject-matter jurisdiction as the Family Division. This subject matter jurisdiction is distinct from the General Division’s jurisdiction over civil and criminal matters. [ 59 ] However, in circumstances where the Family Division would otherwise have exclusive jurisdiction, if there is a “preponderance of convenience” for doing so,

section 43.10(1) provides for a transfer to the General Division or another appropriate court. The language of

section 43.10(1) bears repeating: 43.10(1) Notwithstanding

section 43.9 , a judge of the Family Division may, upon application, order that a proceeding started in the Family Division be transferred to the General Division or another appropriate court whether inside or outside a judicial area or the expanded service area referred to in subsection 43.5(5) where, in the opinion of the judge, there is a preponderance of convenience for the proceeding to be dealt with by that division or court. [emphasis added] [ 60 ] I see nothing in this language limiting the transfer in a manner argued by the Intended Third parties.

There is no comma after “General Division” such as to distinguish it from “another appropriate court”, as suggested. Nor is there language limiting “preponderance of convenience” to “territorial” convenience. Rather, by its express language

section 43.10(1) provides that the Family Division may order that a proceeding started in that division be “transferred to the General Division or another appropriate court whether

inside or outside a judicial area or expanded service area” [emphasis added] [ 61 ] This

interpretation is supported by the opening language of

section 43.10(1), which reads “Notwithstanding

section 43.9…. .”

Section 43.9 provides that the Family Division “has and may exercise exclusive jurisdiction” in a judicial area or expanded service area, as it relates to the subject matters in that section. The “Notwithstanding” language in

section 43.10(1) thus opens the door for the General Division, or other appropriate court, to receive a transfer where the Family Division has or may otherwise exercise exclusive jurisdiction. [ 62 ] The notwithstanding language in

section 43.10(1) is also consistent with

section 43.9(1) which provides that the Family Division “has and may exercise exclusive jurisdiction.” The introduction of the word “may” suggests that while in the circumstances identified in

section 43.9(1) the Family Division has exclusive jurisdiction, there may be circumstances when it chooses not to do so. This

interpretation is consistent with the ability of the Family Division to transfer a matter to the General Division, or another court, which might otherwise fall within its exclusive jurisdiction. [ 63 ] In support of their argument, the Intended Third Parties refer to Barnes v. Barnes , 2010 NLCA 17 , in which our Court of Appeal addressed the “preponderance of convenience” test, in the context of

section 7 of the Unified Family Court Act (the equivalent of

section 43.10(1) of the Judicature Act ). [ 64 ] In Barnes the case management judge concluded that family law proceedings commenced by Mr. Barnes in St. John’s should be transferred to Gander. The Court of Appeal observed that such a change of venue was not an issue of jurisdiction, as both the Trial Division and Unified Family Court are divisions of the one court, the Supreme Court of Newfoundland and Labrador.

On the meaning of “preponderance of convenience”, Green, C.J.N.L. stated (at paragraphs 14 and 23): 14. … The test for whether a case should be tried in the Unified Family Court or in the Trial Division in another judicial centre is whether there is a "preponderance of convenience" favouring one forum over another: Unified Family Court Act , s. 7(1) .

A decision under s. 7 is a discretionary decision that involves a balancing of a variety of factors impacting on where it is most convenient to try the case, bearing in mind the overriding requirement of trying to maintain fairness to each party. 23. … By the application of the "preponderance of convenience test" the court necessarily must weigh and balance a variety of factors before coming down on one side or the other as to where is the most convenient place to hold the trial.

In this case, the case management judge identified the proper test to be applied (she called it the "balance of convenience"). [ 65 ] While Barnes addressed which venue were more appropriate, St. John’s or Gander, I do not read the language of Green, C.J.N.L. as precluding the possibility of a transfer from the Family Division to the General Division, or another appropriate court, within the same judicial area, when convenient to do so. [ 66 ] In areas not serviced by the Family Division, pursuant to

section 43.2(

c) the General Division has the same subject matter jurisdiction. In areas where the Family Division has exclusive jurisdiction, however, the General Division has that subject matter jurisdiction only upon transfer from the Family Division. 2) Is the General Division’s jurisdiction limited to the subject matter jurisdiction of the Family Division, following transfer of a family law proceeding under

section 43.10(1) of the Judicature Act ? [ 67 ] On 28 November 2018 the family law proceeding was transferred to the General Division for the limited purpose of hearing the application of Dr. Hill to commence Third Party proceedings against his lawyer and the lawyer’s law firm. A note on the family law proceeding file provides that it is to be returned to Family Division after the within application is decided. [ 68 ] Dr.

Hill’s application to transfer the family law proceeding to the General Division was for the sole purpose of bringing the within Third Party application, so as to avoid the limitation period challenge faced by him in the negligence action. The Intended Third Party submits that this procedure amounts to an end run around the “subject matter jurisdiction” constraints that apply to proceedings appropriately started in the Family Division. [ 69 ] As noted, the subject matter jurisdiction of the Family Division is prescribed by

section 43.9. These are, of course, family law matters over which the Family Division has specialized expertise and supports in place for litigants. [ 70 ] It is common ground between the parties that Dr. Hill’s negligence claim against his lawyer does not fall within the ambit of the Family Division’s jurisdiction under

section 43.9. I agree. [ 71 ] The Family Division therefore has no jurisdiction to adjudicate Dr. Hill’s tort claim against his lawyer, whether brought by a claim in the first instance or by way of a third party action. Nor can this court, as part of the General Division, bestow upon the Family Division that jurisdiction. A legislative change would be required. [ 72 ] Whether

section 43.11 could be used to expand the Family Division jurisdiction in this instance is academic, as there is no agreement of the parties. [ 73 ] On the other hand, the proceeding as commenced by Ms. Goyeche in the Family Division is a family law proceeding concerning matters which clearly fall within the subject matter jurisdiction of the Family Division, and in this case within its exclusive jurisdiction. [ 74 ] In my view, the transfer of the family law proceeding to the General Division under

section 43.10(1) does not change the essential character of that proceeding. It remains a family law proceeding, although its adjudication is now moved to this court.

[75] Such an

interpretation is consistent with test for convenience as identified in Barnes. The decision to be taken under section43.10(1) is a procedural one based on the preponderance of convenience. It is not to be decided based on jurisdictional considerations. [76] The decision of the most convenient place to adjudicate the family law dispute is a discretionary decision involving thebalancing of a variety of factors “bearing in mind the overriding requirement of trying to maintain fairness to each party” (Barnes,paragraph 14). I would interpret “each party”, in this context, to be Ms. Goyeche and Dr.

Hill, the question thus being what is the mostconvenient forum for the adjudication of the family law proceeding. The proceeding, as transferred, thus remains a family lawproceeding. [77] Nor does the General Division have an expanded jurisdiction to entertain matters transferred to it by the Family Division, undersection 43.10(1), beyond that of the Family Division itself. [78]

Section 43.10(2) of the Judicature Act provides: 43.10(2) The provisions of this Act relating to the transfer of a proceeding to another division or court under subsection (1) shallapply, with the necessary changes, to that proceeding in the other division or court. [emphasis added] [79] As noted, the subject matter jurisdiction of the Family Division is circumscribed by

section 43.9. I interpret

section 43.10(2) tomean that when a proceeding is transferred under

section 43.10(1) from the Family Division to the General Division (as was the familylaw proceeding in this case), the subject matter jurisdictional limitations in

section 43.9 continue to apply to that proceeding. Were itotherwise,

section 43.10(2) would serve no purpose. [80] Such an

interpretation is consistent with the remainder of

section 43.10. Subsections 43.10(1) and (2) apply to the transfer of aproceeding appropriately commenced in the Family Division (i.e. a family law proceeding). Where, on the other hand, a proceeding isstarted in the Family Division that should not have been started there,

section 43.10(3) provides for a transfer of that proceeding to theGeneral Division. [81]

Section 43.10(3) reads: 43.10(3) Where a proceeding that should not have been started in the Family Division is started in that division, a judge of the FamilyDivision may direct the proceeding to be transferred to the General Division or another court, and steps taken by a party in theproceeding and orders made before the transfer are valid and effective as if they were made in the division or court in which theproceeding ought to have been started. [82] In the circumstance governed by

section 43.10(3), the limiting language of

section 43.10(2) does not apply and the GeneralDivision’s subject matter jurisdiction over that proceeding is not limited by

section 43.9. Instead,

section 43.2 now governs theproceeding. This is logical, as there would be no reason for the limited subject matter jurisdiction of the Family Division to apply to theGeneral Division, following the transfer of a matter not appropriately started in the Family Division in the first place. [83] However, with regard to a family law proceeding appropriately started in the Family Division and transferred to the GeneralDivision on a “preponderance of convenience” under

section 43.10(1), by virtue of

section 43.10(2), this court can have no greaterjurisdiction than the Family Division where it originated. [84] Support for this

interpretation may also be found in the decision of this court in Lemoine v. Lemoine, (1990), (NL SC), 80 Nfld. & P.E.I.R. 339, 1990 CarswelllNfld 205 (T.D.). At issue in this case was the authority of the Provincial Court toadjudicate upon a matter falling within the exclusive jurisdiction of the Unified Family Court, under what was then

section 7 of theUnified Family Court Act, namely matrimonial property. The operative language of

section 7 and the power to transfer proceedings inwhat was then section 8(1) of the Unified Family Court Act, mirrors sections 43.9 and 43.10 of the Judicature Act, respectively. [85] In concluding that the Provincial Court had no jurisdiction in that instance, Puddester, J. stated (at paragraphs 31 – 32): 31. The provisions of s. 7 of The Unified Family Court Act are not matters of procedure. They are matters of substance, creatingwithin the authority of a single court a unified jurisdiction in matrimonial causes.

In this context, it is not possible for either party, or bothparties, to "submit to the jurisdiction" of a court which by express provision of statute, has no such jurisdiction. The parties cannotthereby confer jurisdiction on the Provincial Court. 32. There is no provision in the Act expressing, or implying, the capacity of the parties to consensually oust the jurisdiction of theUnified Family Court. True, s-s. 8(1) does give that court authority to transfer a proceeding commenced properly within its jurisdiction,to another court. However, I do not interpret this

section as supporting the principle that such other court has some inherent jurisdiction.Rather, s-s. 8(1) permits the Unified Family Court to transfer its own jurisdiction to the other court, in the circumstances contemplatedunder the sub-section. [emphasis added] [86] The jurisdiction thus transferred from the Family Division in the family law proceeding is “its own jurisdiction”, namely asfound in

section 43.9. [87] To coin a phrase from Archean Resources, what is the mischief the legislature sought to address in providing for the transferpower under

section 43.10(1)? Having carefully drafted the Judicature Act to carve out specific subject matter jurisdiction for theFamily Division in family law proceedings, I do not accept that the legislature created

section 43.10(1) as a loophole through which

family law proceedings might be high jacked into something else in the General Division. [ 88 ] Rather,

section 43.10(1) is purely procedural and is designed to service those parties embroiled in the family law proceeding. It recognizes that there may be circumstances where it is more convenient to have those proceedings held in other than the Family Division. [ 89 ] It follows that just as the Family Division would have no jurisdiction to adjudicate the negligence claim against his lawyer advanced by Dr. Hill, in the transferred family law proceeding the General Division would likewise have no jurisdiction to do so. [ 90 ] With respect, the jurisprudence relied upon by Dr.

Hill for joining third parties, operates on the premise that the court adding the third parties has jurisdiction to decide the third party claim. In this case, however, for the reasons stated, this court does not. [ 91 ] For this reason, I would dismiss the within application and return the family law proceeding to the Family Division for future management. 3) Does Dr. Hill’s application meet the test for adding the Third Parties in this instance? [ 92 ] My conclusion with respect to the jurisdictional issue is sufficient to dispose of the Third party application.

However, in the event I am wrong and this court has jurisdiction to adjudicate the Third Party claim as part of the family law proceeding transferred to it, I will proceed to examine the Third Party application on its merits. [ 93 ] Procedurally, Third Party claims are governed by the interrelation between sections 93 - 94 of the Judicature Act and Rule 12 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , as follows: 93. The court may grant to a defendant (

a) in respect of an equitable estate or right, or other matter of equity; and (

b) in respect of a legal estate, right or title claimed or asserted by that defendant, all the relief against a plaintiff or petitioner that the defendant has properly claimed and that the court might have granted in a proceeding instituted for that purpose by the same defendant against the same plaintiff or petitioner. 94.

(1) Relief (

a) claimed under

section 93; (

b) related to or connected with the original subject matter of the proceeding; and (

c) in a similar manner claimed against another person whether a party to the same proceeding or not, may be granted against a person who has been served with written notice of the claim under a rule or an order of the court, and that might have been granted against that person if that person had been made a defendant to a proceeding instituted by the defendant seeking relief under

section 93 for a similar purpose.

(2) A person served with a notice under subsection (1) is considered to be a party to the proceeding with the same rights in respect of that person's defence against the claim as if that person had been sued in the ordinary way by a defendant seeking relief under

section 93. 12.02.

(1) Where a defendant claims against any person, who is a co-defendant or who is not a party to the proceeding, that the latter is or may be liable to the defendant for all or any part of the plaintiff's claim against the defendant, the defendant may, before the defendant files a defence or appears on a hearing under an originating application, issue and serve a third party notice without the leave of the Court, and thereafter with leave.

(2) A third party notice shall be in Form 12.02A and contain a statement of the plaintiff's claim against the defendant and a statement of the defendant's claim against the third party.

(3) A third party shall, from the time of service upon the third party of the third party notice, be a party to the proceeding with the same right to oppose any claim made against the third party as if the defendant had commenced a proceeding against the third party in the ordinary way. 12.03.

(1) Unless the court otherwise orders, an application for leave to issue a third party notice shall be made with notice to all existing parties.

(2) An application for leave to issue a third party notice shall be supported by an affidavit stating (

a) the nature of the claim made by the plaintiff in the proceeding; (

b) the stage which the proceeding has reached; (

c) the nature of the claim made by the applicant and the facts on which the third party notice is based; and (

d) the name and address of the person against whom the third party notice is to be issued and served.

(3) The order granting leave to issue a third party notice may contain directions as to the period within which the notice is to be issued and served. [ 94 ] In the within matter, as Dr. Hill has filed a reply in the family law proceeding, he brings his application under Rule 12.03 . [ 95 ] In Ryan v. Dew Enterprises Ltd. , 2014 NLCA 11 , Green, J. identified the following guiding principles for joining third parties (at paragraphs 58, 74, and 78): 58. ... As noted, this

section is the statutory authorization for third party procedure. It contemplates a person being joined as a third party whenever the defendant is making a claim "related to or connected with the original subject matter of the proceeding". That language extends beyond contribution or indemnity claims, inasmuch as it does not require the defendant to claim to pass on liability for the plaintiff's claim to the third party.

All that would appear to be required is to show that the defendant's cause of action against the third party arises out of the same general factual and/or legal matrix of the extant issues between the plaintiff and defendant . 74 . In addition to determining whether the nature of the claim is within the scope of third party procedure, the Court must also consider practical questions related to whether, from a logistical and timing point of view, the third party claim can be accommodated within the contemplated litigation between the plaintiff and defendant…. 76.

Factors other than delay of the proceeding and proximity to an existing trial date that may be considered include the possibility that the inclusion of third party issues in the trial would unduly complicate the disposition of the trial. … [emphasis added] [ 96 ] At the end of the day the burden is on Dr. Hill to justify the issuance of the Third Party Notice (see Ryan , paragraph 78 ). [ 97 ] I agree with the Intended Third Party’s argument that the reference in Ryan to “extant issues” refers to those issues that actually exist between Ms. Goyeche and Dr. Hill at the time the Third Party application is brought.

Issues which have been resolved by either agreement or court order can no longer be considered “extant”. [ 98 ] On 6 April 2018 a “Final Order on Consent” was signed by both Ms. Goyeche and Dr. Hill and endorsed by a judge of the Family Division. It provided for the payment of a portion of Dr. Hill’s pension to Ms. Goyeche and thereby finally resolved the pension issue as between these parties. As such, Ms. Goyeche’s entitlement to Dr. Hill’s pension can no longer be considered as an extant issue between these parties. [ 99 ] In this case Ms. Goyeche and Dr.

Hill filed an Interim Consent Order on 6 November 2018 which provided that inter alia , that effective 15 October 2018 Dr. Hill’s obligation to pay spousal support shall cease.

[ 100 ] While the interim order ended spousal support on 15 October 2018, for Ms. Goyeche to seek a variation in the family law proceeding she would have to establish a material change in circumstances. The legal and factual matrix underlying such a change would be very different from, and would not include a consideration of the facts applicable to Dr. Hill’s professional negligence claim. [ 101 ] In the family law proceeding Ms. Goyeche and Dr.

Hill have thus resolved the question of whether the Marriage Agreement is enforceable, thus sparing a judge of the Family Division from having to decide this question. [1] The enforceability is no longer an extant issue between the parties to the family law proceeding. Whether or not Mr. Smyth was negligent was never an issue as between them. [ 102 ] In Ryan , the Court quoted with approval from the Nova Scotia Court of Appeal (at paragraph 63): 63. The Nova Scotia Court of Appeal held that Nova Scotia's rule 17.02, the equivalent of our rule 12.02, should be construed to allow the claim.

After tracing the history of the linguistic development of the English and Nova Scotian judicature provisions and rules, Hart J.A. explained: [31] … All the defendant must show is that the plaintiff is claiming against him something for which the third party is liable to the defendant and it then becomes convenient to have the common issues tried at the same time unless good reason is shown by one of the parties to convince the Court that it would be unfair to have a joint trial of the two causes. … [ 103 ] The issues at play in the family law proceeding and Third Party negligence claim are not “common issues” such that a joint trial is “convenient”. [ 104 ] I also agree with the submission of the Intended Third Parties to the effect that the requisite commonality between the factual and/or legal matrix of the issues underpinning the family law proceeding and Dr.

Hill’s professional negligence claim is missing in this case. [ 105 ] The factual matrix of Dr. Hill’s professional negligence claim relates to the dealings between Dr. Hill and his lawyer in 1993. This matrix involves evidence regarding the drafting of the cohabitation agreement, the advice provided by the lawyer and meetings with the parties, and preparation and execution of the cohabitation agreement.

The legal matrix involves the application of the common law principles of contract and duty of care governing the solicitor client relationship. [ 106 ] The question of the enforceability of the Marriage Agreement, had it been left to the Family Division to decide, would not entail a consideration of the factual or legal matrix underpinning Dr. Hill’s claim of professional negligence. Rather, in deciding enforceability the court’s focus would have been on the Marriage Agreement itself and the personal circumstances of Ms. Goyeche and Dr.

Hill. [ 107 ] Support for this conclusion may be found in the Ontario decision in MacDonald v. Legault , 2000 CarswellOnt 5372 . In MacDonald the wife sought to bring a third party claim against her former lawyer for negligence in the drafting of a cohabitation agreement.

Blishen, J. characterized the question as whether the wife could “include a claim alleging negligence against her former lawyer in the context of the family law proceedings before this court” (at paragraph 3). [ 108 ] In declining to add the third party claim, Blishen, J. stated (at paragraph 5): 5. … The fact situations with respect to the negligence claim and the fact situations with respect to the issues before the court under the family law proceedings are not the same .

This in my view would only cause further delay and sidetrack the other significant family law matters and therefore I am not going to permit the adding of Mr. Gouin [the lawyer] as a party to this proceeding. [emphasis added] [ 109 ] Dr. Hill refers to the underlying objectives of third party procedures as set out by Noel, J. in Fitzpatrick v. A. Harvey & Co. (1986), 59 Nfld. & P.E.I.R. 144, 1986 CarswellNfld 96 (Nfld. S.C. (T.D.)) (as endorsed by the Court of Appeal in Ryan ) at paragraph 14: 14.

The objects of third party procedure are stated in The Law of Civil Procedure, Williston and Rolls, at p. 426, they may be summarized: (1) to avoid a multiplicity of actions; (2) to avoid contradictory or inconsistent findings in two different actions on the same facts; (3) to allow the third party to defend the plaintiff's claim; (4) to save costs; and (5) to prevent the plaintiff enforcing a judgment against the defendant before the third party issue is determined. [ 110 ] With respect, I fail to see how any of these objectives would be met in granting the Third Party application in this instance.

[ 111 ] I have to consider whether from a logistical and timing perspective the Third Party Claim could be accommodated within the family law proceeding between Ms. Goyeche and Dr. Hill. Clearly, in the Family Division it cannot. [ 112 ] However, the transfer order from that court provides that after hearing the within Third Party application the family law proceeding is to be returned to it. Dr. Hill’s response is to say that, if the Third Party application is granted, he will apply to sever [2] the Third party claim from the family law proceeding.

Under these circumstances it can hardly be said that the Third Party claim will be accommodated with the litigation between Ms. Goyeche and Dr. Hill. Rather, the family law proceeding and Third Party claim would proceed along different tracks in different Divisions. There will continue to be a multiplicity of actions. [ 113 ] The parties in the family law proceeding have already agreed that the Marriage Agreement is unenforceable. The Family Division cannot, decide the negligence claim of Dr. Hill against his lawyer, so there is no danger of contradictory findings in two different actions. [ 114 ] Finally, Ms.

Goyeche is entitled to enforce the Consent Order filed in the family law proceeding without awaiting the outcome of Dr. Hill’s negligence claim. [ 115 ] The application of the objectives in Fitzpatrick can only serve to underscore the very different factual and legal matrixes in play in the family law proceeding and negligence claim. [ 116 ] For the foregoing reasons, in the event this court has jurisdiction to adjudicate the Third party claim in the transferred family law proceeding, I would nevertheless decline to grant the Third Party application.

Disposition [ 117 ] The within application to commence Third Party proceedings is dismissed. The family law proceeding between Ms. Goyeche and Dr. Hill is returned to the Family Division for future management. [ 118 ] As the Intended Third Parties were successful, they are entitled to their party/party costs against Dr. Hill under Column 3 of Rule 55. _____________________________ Donald H. Burrage Justice