Detcheverry v. Herritt, 2013 NSSC 315

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Detcheverry v. Herritt, 2013 NSSC 315 Date: 20131004 Docket: SFHMCA 065813 Registry: Halifax Between: Elodie Denise Detcheverry Applicant and Ivan Ulisses Herritt Respondent Judge: Associate Chief Justice Lawrence I.

O ’ Neil Heard: June 17, 2013, in Halifax, Nova Scotia Counsel: Elodie Detcheverry, not present and not represented Krista Forbes , Counsel for the Respondent By the Court : Index Introduction.............................................................................................. para. 1 Legal History............................................................................................. para. 6 Issues...................................................................................................... para. 20 Jurisdiction Simpliciter............................................................................ para. 21 - common law................................................................................ para. 23 - parens patriae ............................................................................ para. 26

- Van Breda v. Village Resorts Ltd. , 2012 SCC 17 ............................. para. 35 -specific statutes............................................................................. para. 38 (

a) Divorce Act , RSC 1985, c. 3 (2nd Supp.).................................. para. 41 (

b) Reciprocal Enforcement of Custody Orders Act , R.S.N.S 1989, c.387 ...................................................................................................... para. 44 (

c) Matrimonial Property Act , R.S.N.S. 1989, c.275 ...................... para. 45 (

d) Rule 86..................................................................................... para. 47 (

e) Convention on Civil Aspects of International Child Abduction... para. 49 Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 .................. para. 51 Conclusion............................................................................................... para. 63 - Has territorial competence been established?.................................. para. 71 - Has the forum been challenged?.................................................... para. 82 - What is the forum conveniens ?....................................................... para. 87 - Comparative convenience and expense.......................................... para. 95 - Law to be applied........................................................................ para. 102 - Avoidance of a multiplicity of legal proceedings........................... para. 106 - Avoidance of conflicting decisions............................................... para. 108 - Enforcement of judgment............................................................ para. 109 - Fair and efficient working of the Canadian legal system............... para. 111 Conclusion............................................................................................. para. 114 Introduction [ 1 ] The parties have a daughter born February 16, 2007.

They were never married. They lived in Halifax as a couple from 2006 until 2009. Ms. Detcheverry is a native of Saint-Pierre and Miquelon, a self governing territory of France. Mr. Herritt is a native of Nova Scotia. They separated in early 2009. [ 2 ] An interim consent order issued in this proceeding on September 10, 2009 following a Court appearance on August 21, 2009. The interim consent order of Justice Campbell governed interim care of the parties ’ child. The order conferred care of the child on Ms. Detcheverry and reasonable access for Mr. Herritt.

The order also prohibited removal of the child from Nova Scotia by either parent for the purpose of changing the child ’ s residence without the consent in writing of the other or a Court order. [ 3 ] The parties reconciled in late 2009. Approximately one year later , on December 28, 2010 they moved to Saint-Pierre and Miquelon from Halifax. [4] Ms. Detcheverry could not remain in Canada because her student visa had expired. The Court was told it was not possible to renew the visa. [5] The parties separated for a second time in October 2011. Ms.

Detcheverry and the child subsequently stayed in Saint-Pierre and Miquelon. The child returned to Nova Scotia to spend time with Mr. Herritt in February 2012. Mr. Herritt then refused to return the child to Ms. Detcheverry in Saint- Pierre and Miquelon.

Legal History [6] Ms. Detcheverry sought the assistance of the Court in Saint-Pierre and Miquelon. On April 13, 2012 the Saint-Pierre and Miquelon Supreme Court declined to accept jurisdiction over the issue of custody and access of the parties ’ child. That decision was appealed. [7] Ms. Detcheverry then filed an emergency application in Nova Scotia on June 13, 2012 and sought the return of the child to her. At the time of the hearing on July 17, 2012, both parties asked the Supreme Court of Nova Scotia to assume jurisdiction. A transcript of Justice MacDonald ’ s decision has been provided by counsel for Mr.

Herritt. [8] Justice MacDonald delivered an oral decision on July 17, 2012 and issued an order on July 29, 2012. Pursuant to the Nova Scotia Maintenance and Custody Act , Ms. Detcheverry was granted interim sole custody of the subject child and permitted to live with the child in Saint-Pierre and Miquelon. Mr. Herritt was directed to have parenting time for specified block periods. [9] A transcript of the Saint-Pierre and Miquelon appeal decision was provided to Justice MacDonald prior to her hearing on July 17, 2012.

It revealed that on July 6, 2012 the Saint-Pierre and Miquelon Appeal Court overturned the lower Court decision and held the Saint-Pierre and Miquelon Trial Court did, in fact, have jurisdiction to hear the custody matter.

It ordered the Trial Court to rehear the matter. [10] The Higher Appellate Court of Saint-Pierre and Miquelon summarized the trial decision as follows: By judgment, of April 13, 2012, pronounced in the absence of the respondent, the judge raised voluntarily the question of his competence and considered that a foreign jurisdiction was more competent to decide on the matter and declared to be non competent on this matter as the child regularly resided in Nova Scotia (Canada); [11] The Appellate Court ruled as follows: Grounds of the decision: Considering that the territorial competence rules are established by

Article 1070 of the Civil Procedure Code which stipulates: “the territorial competent family court judge is, if the parents live separately, the judge in the residence place of the parent with whom the minor children regularly reside in case of exercising together the parental authority or in the residence place of the parent who exercises alone this authority ” and that the only exception from this rule is in the case of fraud; Considering that after the separation of the couple Mrs.

Elodie DETCHEVERRY has continued to reside in HALIFAX, that a judgment of the Supreme Court of Nova Scotia, of September 10, 2009, has granted her the custody of the couple’s child, Jade, conferring the father visitation and housing rights; Considering that it results, from the evidence presented during the hearing, that Mrs.

DETCHEVERRY had to leave the Canadian territory upon the expiry of her student visa, without which she would have illegally been on the Canadian territory and the exchange of SMS messages between the mother and the father of the child, occurred after departure of the mother, did not reveal any hostility of Mr. HERRITT with regard to Mrs. DETCHEVERRY; Considering that Mrs.

DETCHEVERRY has established her residence in Miquelon in December 2010, that she asserts that subsequently the father has exercised his visitation and housing rights under normal conditions and only at the end of the February 2012 vacation he refused to let Jade return to live with her mother in Miquelon and that this long reaction time confirms that Mr. HERRITT has not objected immediately to the accomplishing fact that he seems to contest today;

Considering that the first judge has also based his decision on one of the provisions contained in the abovementioned judgment of the Supreme Court of Nova Scotia, thus drawn up: “Neither parent shall remove the said child from the province of Nova Scotia for the purpose of changing the child ’s residence without the consent in writing of the other parent or a Court order ” [In English in the original document] , that the judge in civil matters has the responsibility to translate a text in foreign language, if he knows it, that this provision can be translated as follows: “aucun des parents ne pourro deplacer l ’enfant de la Province de Nouvelle Ecosse, dans le but de changer la résidence de l ’enfant, sans le consentement écrit de l ’autre parent ou une décision de justice ” [In French in the original document] ; Considering that, however, this provision, that restricts the liberty of movement, is contrary to the French international public order and cannot be effectively invoked; Considering that the circumstances in which Mrs.

Elodie DETCHEVERRY has left the Canadian territory together with her daughter Jade do not constitute unlawful conduct or fraud, that the territorial competence rules defined in

Article 1070 of the Civil Procedure Code are applicable in this case and that the family court judge of the Trial Court of Saint-Pierre and Miquelon has jurisdiction in this case; On these grounds: The Higher Appellate Court of Saint-Pierre and Miquelon, ruling after duly hearing both sides, in Court Chamber and in the last resort; Declares admissible the appeal lodged by Mrs.

Elodie DETCHEVERRY; States that the family court judge of the Trial Court of Saint-Pierre and Miquelon has jurisdiction and sends the case to that court; [12] In the pre hearing brief submitted to Justice MacDonald on July 12, 2012, on behalf of Ms. Detcheverry, the following submission is made: It is submitted, accordingly, that the forum non conveniens analysis is applicable, and favours Nova Scotia. Mr. Herritt is located in Halifax, and Ms. Detcheverry is travelling to Halifax to attend the hearing. Mr. Herritt has not attended the two hearings that took place in Saint-Pierre and Miquelon.

It is likely that his financial circumstances precluded him from doing so. It is an interim order from Nova Scotia that is currently in place and requires varying and enforcement. Furthermore, the reality of the situation requires a timely resolution. Jade has not seen her mother since February 17, 2012. It is Ms. Detcheverry’s evidence that Jade has been living with her father and sharing his bed, and has not been attending school as she did in Saint-Pierre and Miquelon. To

schedule a hearing in Stain [Saint]-Pierre and Miquelon would delay the determination of this matter, which is being heard on an emergency basis. [13] Accompanying the pre hearing submission was the French text of the appeal decision. The English translation was provide the day of the hearing, July 17, 2012. [14] The matter was next in this Court on March 5, 2013 for a pre-trial before me in anticipation of a final hearing.

Filing deadlines in preparation for a June 2013 final hearing were given to counsel for both parties. [15] Counsel advised me on March 5, 2013 that the Trial Court in Saint-Pierre and Miquelon would be re-hearing arguments on May 3, 2013 and would consider the custody and access issue as it pertained to the parties ’ child.

[16] Also, on March 5, 2013, this Court was advised that the jurisdiction of the Nova Scotia Supreme Court to continue to hear the custody and access issue would be challenged as a consequence of a Saint-Pierre and Miquelon Trial Court ruling in Ms. Detcheverry ’ s favour. Time on May 10, 2013 was therefore scheduled for a status report on the Saint-Pierre and Miquelon re-trial and to

schedule a hearing on the jurisdictional issue, if necessary. The jurisdictional hearing was tentatively scheduled for June 17, 2013 before me. (By letter dated and filed May 7, 2013, counsel for Ms. Detcheverry advised the Court Ms. Detcheverry would be acting on her own thereafter.) [17] On May 10, 2013, Ms. Detcheverry was not present for the status report on the outcome of the retrial in Saint-Pierre and Miquelon, nor was she represented.

Filing deadlines relevant to the jurisdictional issue were nevertheless set for the parties so they could prepare to argue the jurisdictional matter before me on June 17, 2013 as previously scheduled. [18] On June 17, 2013, Ms. Detcheverry did not appear and she was not represented. Ms. Forbes, counsel for Mr. Herritt asked that this Court retain jurisdiction to proceed with a final hearing on the parenting issue. This is a decision in response to her submissions. [19] Supreme Court Rules 4.07 and 5.10 permit a motion to dismiss an action for want of jurisdiction. [20] Issues 1.

Do the Nova Scotia courts have jurisdiction to consider the application of Ms. Detcheverry or Mr. Herritt for custody of the child now living in Saint-Pierre and Miquelon? 2. If the Nova Scotia court has jurisdiction to do so, should it nevertheless decline jurisdiction i.e. is it the forum conveniens ? Jurisdiction Simpliciter [21] The Maintenance and Custody Act , R.S.N.S. c.160 does not specifically address the issue of the court ’ s jurisdiction to make a custody and access order. The statute does not require that a subject child live within the province for a court to have jurisdiction to do so.

The court ’ s power to make a custody and access order is contained in s.18(1) and is subject to an assessment of what is in the child ’ s best interests: 18

(1) In this

Section and

Section 19, "parent" includes the father of a child of unmarried parents unless the child has been adopted.

(2) The court may, on the application of a parent or guardian or other person with leave of the court, make an order (

a) that a child shall be in or under the care and custody of the parent or guardian or authorized person; or (

b) respecting access and visiting privileges of a parent or guardian or authorized person. [22] One must look to other statutes and the common law to first, determine the Court ’ s jurisdiction and secondly, whether the court should exercise jurisdiction if found to exist. -Common law

[23] At common law, issues of custody and access relating to children must generally be adjudicated in the most convenientjurisdiction. This is most often the jurisdiction where the children are living.

This is the forum conveniens analysis ; the follow upanalysis, once jurisdiction of a Court to consider the issues is established. [24] In the Annual Review of Family Law, McLeod and Mamo, 2008, at p.28, the principles are explained as follows: At common law, courts had jurisdiction to entertain custody and access proceedings if a child was present, resident, or domiciled in thejurisdiction at the time proceedings were commenced . . . While jurisdictional requirements vary among provincial custody statutes, in general, a court in a province has jurisdiction to entertaincustody/access proceedings if (

a) a child is ordinarily/habitually resident in the jurisdiction; (

b) a child is present in the forum, has a realand substantial connection with the forum, no proceedings are pending in the place of habitual/ordinary residence, and the forum is theforum conveniens; or (

c) a child would be at risk if a court did not assume jurisdiction . . . While it is trite law, it always bears to be reminded that the parties cannot confer jurisdiction or take away jurisdiction from a court byagreement when it comes to child related issues . . . There is a heavy onus on a party seeking to convince a court to take custody jurisdiction if the child is not ordinarily/habitually residentin the province to explain why the child’s welfare necessitates the court overriding its basic ordinary/habitual residence jurisdictionalprinciple . . .

A court may decline jurisdiction that it possesses under the relevant custody legislation where it is not the forum conveniens . . . [25] In addition, the Courts’ parens patriae jurisdiction must be considered as well as other established common law principles. - Parens patriae [26] The court has parens patriae jurisdiction upon which to find jurisdiction and will do so if it determines it is the mostappropriate forum for the issue of custody and access to be adjudicated. [27] The Supreme Court of Canada in Re Eve (SCC), [1986] 2 S.C.R. 388 thoroughly discussed the genesis anddevelopment of the courts’ parens patriae jurisdiction.

In that case the court was asked to inter alia authorize the sterilization of amentally challenged person. The court held that it had parens patriae jurisdiction to consider the issue. At paragraph 73 Justice Laforeststated: 73. The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannotcare for themselves. The Courts have frequently stated that it is to be exercised in the “best interest “ of the protected person, or again,for his or her benefit or “welfare”. . . . . . 75. ....I might add that the jurisdiction is a carefully guarded one.

The courts will not readily assume that it has been removed bylegislation where a necessity arises to protect a person who cannot protect himself.

[28]

Section 32 A (1) (

t) of the Judicature Act, R.S.N.S. 1989 c. 240 expressly states that the parens patriae jurisdiction of theSupreme Court also exists in the Supreme Court (Family Division). Section 32 (10) of the same statute provides that “in questionsrelating to the custody and education of infants, the rules of equity shall prevail”. [29] Our Court of Appeal in M. (N.N.) v. Nova Scotia (Minister of Community Services) 2008 NSCA 69 , 2008 NSCA 69at para. 37 affirmed the jurisdiction of the Supreme Court to rely upon the doctrine of parens patriae to address gaps in legislation andfor the purpose of judicial review.

At the trial level Justice Lynch discussed the existence of the parens patriae jurisdiction (seeparagraph 19 M. (N.N.) v. Nova Scotia (Minister of Community Services) 2008 NSSC 72 , 2008 NSSC 72). [30] Justice Williams of this court relied upon this jurisdiction, in part, as a basis for assuming jurisdiction of a child in Nova Scotiawho was “subject” to a Texas divorce proceeding (see Quigley v. Willmore [2008] N.S.J. No. 552 at page 23 and page 66-68).

Heconcluded that the child was endangered emotionally by the jurisdictional uncertainty, given divorce proceedings in Nova Scotia andTexas and this was a rationale for invoking the court’s parens patriae jurisdiction (paragraph 78). [31] In Yassin v. Loubani , 2006 CarswellBC 2763 (B.C.C.A.) the trial judge relied upon his parens patriae jurisdiction to ordercustody to the mother. The children and parents were Canadian citizens but the children were neither physically present nor habituallypresent in Canada at the time of the application.

The children were in Saudi Arabia. (This decision is described as very troubling byPhilip Epstein and Aaron Franks whose annotation appears at p. 2 of the case report.) [32] In A. (A.) v. B. (B.) 2007 ONCA 2 , 2007 CarswellOnt 2 (O.C.A.) the court filled the legislative gap that affected asame sex couple by exercising the court’s parens patriae jurisdiction. [33] In his newsletter, FAMLNWS 2013-31, Philip Epstein reports on the recent Ontario divorce case of Knowles v. Lindstrom,2013 CarswellOnt 6935 (Ont. S.C.J.); 2013 ONSC 2818. This case did not involve issues of custody and access.

It did, however, turnon a determination of whether the Respondent had a real and substantial connection to Ontario. The competing jurisdiction was Florida. The Court applied the law as outlined by the Supreme Court of Canada in Van Breda v. Village Resorts Ltd., 2012 SCC 17 ,2012 CarswellOnt 4268 (S.C.C.); 2012 S.C.C. 17. The Van Breda case resulted from Ontario residents being injured in Cuba. [34] In both Knowles v. Lindstrom and Van Breda v. Village Resorts Ltd. the Respondents were found to have a real and substantialconnection with Ontario.

As Epstein points out, once a real and substantial connection is found, the case moves to the issue of forumconveniens. - Van Breda v. Village Resorts Ltd., 2012 SCC 17 [35] Justice LeBel for the Court in Van Breda discussed the tests to be applied by a court when faced with the task of determiningwhether it has jurisdiction to hear a matter. Justice LeBel reviewed the evolution of the common law principles in this area andreferenced recently enacted statute law in Canada.

The following extensive extracts from Justice LeBel’s decision are a valuablesynopsis of these changes: . . . . . [22] The real and substantial connection test arose out of decisions of this Court that were aimed at establishing broad and flexibleprinciples to govern the exercise of provincial powers and the actions of a province’s courts. It was focussed on two issues: (1) the risk ofjurisdictional overreach by provinces and (2) the recognition of decisions rendered in other jurisdictions within the Canadian federationand in other countries.

In developing the real and substantial connection test, the Court crafted a constitutional principle rather than asimple conflicts rule (see G. Goldstein and E. Groffier, Droit international privé, vol. I, Théorie générale (1998), at p. 47). However, thetest was born as a general organizing principle of the conflict of laws. Its constitutional dimension appeared only later. Courts have usedthe expression “real and substantial connection” to describe the test in both senses, and often in the same judgment.

This has producedconfusion about both the nature of the test and the constitutional status of the rules and principles of private international law. A clearerdistinction needs to be drawn between the private international law and constitutional dimensions of this test.

. . . . . [35] Turning to the search for appropriate conflicts rules, the trend is towards retaining or establishing a system of connecting factors informed by principles for applying them, as opposed to relying on almost pure judicial discretion to achieve order and fairness. This trend is apparent in the laws passed by certain provincial legislatures and is reflected in a number of judicial decisions. These decisions include the important jurisprudential current that the Ontario Court of Appeal has been developing since Muscutt, which is in issue in the cases at bar.

The real and substantial connection test should be viewed not in isolation, but rather in the context of its historical roots, contemporary legislative developments, the academic literature and initiatives aimed at developing and modernizing Canada’s conflicts rules. The test was not born ex nihilo, without any awareness of the methods and techniques that evolved in the field of private international law.

In this respect, both the common law and the civil law have relied largely on the selection and use of a number of specific objective factual connections. . . . . . [40] Across Canada, various initiatives have been undertaken to flesh out the real and substantial connection test. For example, the Uniform Law Conference of Canada proposed a uniform Act to govern issues related to jurisdiction and to the doctrine of forum non conveniens (see Uniform Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) (online)). [41] The CJPTA focusses mainly on issues related to the assumption of jurisdiction.

Section 3(

e) provides that a court may assume jurisdiction if “there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based” (text in brackets in original).

Section 10 enumerates a variety of circumstances in which such a connection would be presumed to exist. For example, it lists a number of factors that might apply where the purpose of the proceeding is the determination of property rights or rights related to a contract. In the case of tort claims, s. 10(

g) provides that the commission of a tort in a province would be a proper basis for the assumption of jurisdiction by that province’s courts.

Section 10 states that the list of connecting factors would not be closed and that other circumstances might be proven in order to establish a real and substantial connection. The CJPTA also includes specific provisions regarding forum of necessity (s. 6) and forum non conveniens (s. 11). A number of subsequent provincial statutes are clearly based on the CJPTA (see, e.g., Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 ; Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c.

C-41.1 ; Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2nd Sess.), c. 2; Court Jurisdiction and Proceedings Transfer Act, S.Y. 2000, c. 7 (not yet in force)). [42] In these statutes, the legislative scheme proposed in the CJPTA has been adopted, with some differences in wording, as they include non-exhaustive lists of prescriptive connecting factors which are presumed to establish a real and substantial connection.

Unlike with Book Ten of the Civil Code of Québec , the legislatures that enacted them did not attempt to codify the entire field of private international law, but attached particular importance to issues related to the assumption and exercise of jurisdiction. [43] Unlike in these other provinces, the Ontario legislature has not enacted a statute based on the CJPTA. However, the province has established its own set of connecting factors for the purposes of service outside Ontario, which are set out in the Ontario Rules of Civil Procedure .

These factors, which are found in rule 17.02, are similar, in part, to those of the CJPTA and of the statutes based on the CJPTA. It has been observed, though, that rule 17.02 is purely procedural in nature and does not by itself establish jurisdiction in a case (P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2010), at p. 121). . . . . . [69] When a court considers issues related to jurisdiction, its analysis must deal first with those concerning the assumption of jurisdiction itself.

That analysis must be grounded in a proper understanding of the real and substantial connection test, which has evolved into an important constitutional test or principle that imposes limits on the reach of a province’s laws and courts. As I mentioned above, this constitutional test reflects the limited territorial scope of provincial authority under the Constitution Act, 1867 . At the same time, the Constitution acknowledges that international or interprovincial situations may have effects within a province.

Provinces may address such effects in order to resolve issues related to conflicts with their own internal legal systems without overstepping the limits of their constitutional authority (see Castillo). . . . . .

[80] Before I go on to consider a list of presumptive connecting factors for tort cases, I must define the legal nature of the list. It will not be exhaustive. Rather, it will, first of all, be illustrative of the factual situations in which it will typically be open to a court to assume jurisdiction over a matter. These factors therefore warrant presumptive effect, as the Court of Appeal held in Van Breda -Charron (para. 109 ). The plaintiff must establish that one or more of the listed factors exists.

If the plaintiff succeeds in establishing this, the court might presume, absent indications to the contrary, that the claim is properly before it under the conflicts rules and that it is acting within the limits of its constitutional jurisdiction (J. Walker, “Reforming the Law of Crossborder Litigation: Judicial Jurisdiction”, consultation paper for the Law Commission of Ontario (March 2009), at pp. 19-20 (online)).

Although the factors set out in the list are considered presumptive, this does not mean that the list of recognized factors is complete, as it may be reviewed over time and updated by adding new presumptive connecting factors. [81] The presumption with respect to a factor will not be irrebuttable, however. The defendant might argue that a given connection is inappropriate in the circumstances of the case. In such a case, the defendant will bear the burden of negating the presumptive effect of the listed or new factor and convincing the court that the proposed assumption of jurisdiction would be inappropriate.

If no presumptive connecting factor, either listed or new, applies in the circumstances of a case or if the presumption of jurisdiction resulting from such a factor is properly rebutted, the court will lack jurisdiction on the basis of the common law real and substantial connection test. I will elaborate on each of these points below. . . . . . [85] The list of presumptive connecting factors proposed here relates to claims in tort and issues associated with such claims.

It does not purport to be an inventory of connecting factors covering the conditions for the assumption of jurisdiction over all claims known to the law. . . . . . [36] Justice Perkins in Knowles v. Lindstrom concluded with the following inter alia : [40] I note as well that “real and substantial connection” is a somewhat elastic concept in family law. Though the Divorce Act requires ordinary residence by one of the parties in a province for a year before the court will exercise divorce jurisdiction, the same is not true for recognition of foreign divorces.

Section 22(3) of the Divorce Act continues the recognition of foreign divorces under the common law “real and substantial connection” test developed by the House of Lords in Indyka v.

Indyka, [1969] 1 AC 33 (HL) , which creates a much lower threshold for recognition than a year’s ordinary residence. [37] To assist in resolving the jurisdictional questions that Canadian courts frequently face, Nova Scotia joined other Canadian Provinces and enacted the Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 c.2 ; the ‘ CJPTA ’ . - Specific statutes [38] Prior to a detailed commentary on the ‘ CJPTA ’ it would be helpful to remind ourselves of other statutes; rules and treaties relevant to a determination of whether a court has jurisdiction to resolve a family law issue.

Section 13 of the ‘ CJPTA ’ provides: 13 Where there is a conflict or inconsistency between this Part and another Act of the Province or of Canada that expressly (

a) confers jurisdiction or territorial competence on a court; or (

b) denies jurisdiction or territorial competence to a court, that other Act prevails.

[39] What other statutes are relevant when the Court is considering its jurisdiction to hear a family law issue with an extra territorial connection ? The following are merely some examples. I have already referenced the Judicature Act in the context of a discussion of the Court ’ s parens patriae jurisdiction. [40] The ‘ CJPTA ’ must also be read with the meaning and effect of the Divorce Act , RSC 1985, c. 3 (2nd Supp.) in mind. The Divorce Act provisions providing for transfers of proceedings and provisional hearings are often relevant when a court ’ s jurisdiction is to be determined.

The statute must be read with the knowledge that the Interjurisdictional Support Orders Act , S.N.S. 2002 c.9 impacts on the Court ’ s jurisdiction. The Reciprocal Enforcement of Custody Orders Act , R.S.N.S. 1989, c.387 may also confer jurisdiction on a Nova Scotia Court. (

a) Divorce Act, RSC 1985, c. 3 (2nd Supp.) [41] Section 3(1) of the Divorce Act , RSC 1985, c. 3 (2nd Supp.) provides: 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. [42] The meaning of ordinarily resident was discussed in Quigley v. Willmore , 2008 NSCA 33 at paragraphs 14 - 21 . [43] When the issue of custody and access must be addressed, the Divorce proceeding may be transferred to the province in which the child(ren) lives.

When a transfer is opposed, the Court embarks upon an inquiry to determine which jurisdiction has the most substantial connection to the child: 6.

(1) Where an application for an order under

section 16 is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province. (

b) Reciprocal Enforcement of Custody Orders Act , R.S.N.S. 1989, c.387 [44] As a general principle, a court “ shall ” enforce a custody order made in another Province. Most Provinces have enacted legislation giving effect to the custody and access orders of other Provinces and many Courts. However, the Reciprocal Enforcement of Custody Orders Act , does permit a Court to assume jurisdiction over the merits of a custody and access dispute once an order is before it for enforcement. In the case of a risk of serious harm to the child, an order may not be enforced.

Sections 3-5 of the Act provide as follows: Enforcement of custody order of reciprocating state 3 A court, upon application, shall enforce, and may make such orders as it considers necessary to give effect to, a custody order made by a tribunal in a reciprocating state. R.S., c. 387, s. 3. Variation of order

(1) Notwithstanding

Section 3, where a court is satisfied that a child would suffer serious harm if the child remained in or was restored to the person named in a custody order, the court may vary the custody order or make such other order for the custody of the child as it considers necessary. (

c) Matrimonial Property Act , R.S.N.S. 1989, c.275 [45] The Matrimonial Property Act , R.S.N.S. 1989, c.275 does not address the issue of the jurisdiction of the Supreme Court of Nova Scotia to resolve inter alia ownership of real and personal property as between spouses. The ‘ CJPTA ’ at s. 11(

a) codifies the common law rules governing jurisdiction over certain property issues. It provides: 11. Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between the Province and the facts on which a proceeding is based, a real and substantial connection between the Province and those facts is presumed to exist if the proceeding (

a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in immovable or movable property in the Province; [46] The common law rules govern jurisdictional issues related to property that arise upon divorce, and as a result of claims based on unjust enrichment and resulting trust following termination of a common law relationship. ( See Armoyan v. Armoyan , 2013 NSCA 99 at paragraph 277 .) (

d) Rule 86 [47] Nova Scotia Supreme Court Rule 86 allows communication between the Supreme Court of Nova Scotia and a Court in another jurisdiction. The jurisdiction may be a foreign entity, as well as a Canadian domestic jurisdiction. The communication may result in a joint conference or a joint hearing. [48] Justice LeBel in Van Breda at paragraph 43 (reproduced at paragraph 29 supra .) described the effect of Rule 17 of the Ontario Rules of Civil Procedure . The Ontario rule has procedural effect and does not establish jurisdiction in a case. Justice Wright as the trial Judge in Bouch v.

Penny , 2009 NSCA 80 also found the ‘ CJPTA ’ procedural and as having retrospective effect. Justice Saunders did not need to address this issue in the appeal of Justice Wright ’ s decision (see his comments at para. 21 of the appeal decision in Bouch v. Penny ). (

e) Convention on Civil Aspects of International Child Abduction [49] When the custody contests are between national forums, consideration must be given to the applicability of the Convention on Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35. This convention does not deal directly with jurisdiction. It is founded on the principle that custody issues should be litigated where the child ’ s habitual residence is located. The Convention is designed to address situations where a child is wrongfully removed or retained. The Child Abduction Act , R.S.N.S. 1989 c.67 gives force and effect to the Convention. The text of the Convention is a

schedule to the Child Abduction Act . Both Canada and France are signatories to the Convention. [50] There is no suggestion that the Convention has application in the circumstances before the Court. - Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 c.2 ; the ‘ CJPTA ’

[51] The ‘ CJPTA ’ , came into force on June 1, 2008. This statute is among those Provincial laws enacted and referenced by Justice LeBel in Van Breda at paragraph 41 . This statute was the subject of commentary by our Appeal Court in Bouch v. Penny , 2009 NSCA 80 . That case involved an action for damages attributable to alleged medical malpractice in Alberta. The defendants challenged the jurisdiction of the Nova Scotia Supreme Court to hear the action.

Our Court of Appeal upheld a decision of the Supreme Court of this Province to the effect that the Nova Scotia court did have jurisdiction. [52] More recently the ‘ CJPTA ’ was the focus of detailed commentary by our Appeal Court in Armoyan v. Armoyan 2013 NSCA 99 . [53] Our Court of Appeal in Bouch v Penny described the ‘ CJPTA ’ as a codification of our common law on the issue of the territorial competence of the Supreme Court of Nova Scotia.

Section 2(

h) of the ‘ CJPTA ’ defines territorial competence as follows: (h) "territorial competence" means the aspects of a court's jurisdiction that depend on a connection between (

i) the territory or legal system of the state in which the court is established, and (ii) a party to a proceeding in the court or the facts on which the proceeding is based. [54]

Section 4 of the ‘ CJPTA ’ lists five basis for finding a Nova Scotia Court has territorial competence: Proceedings against persons 4 A court has territorial competence in a proceeding that is brought against a person only if (

a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counter-claim; (

b) during the course of the proceeding that person submits to the court's jurisdiction; (

c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding; (

d) that person is ordinarily resident in the Province at the time of the commencement of the proceeding; or (

e) there is a real and substantial connection between the Province and the facts on which the proceeding against that person is based. [55]

Section 11 of the Nova Scotia statute provides a non exhaustive list of factors that give rise to a presumption that a real and substantial connection exists between the Province and the facts upon which the proceeding against that person is based [s.4(e)]: Presumption of real and substantial connection 11 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between the

Province and the facts on which a proceeding is based, a real and substantial connection between the Province and those facts is presumed to exist if the proceeding (

a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in immovable or movable property in the Province; (

b) concerns the administration of the estate of a deceased person in relation to (

i) immovable property of the deceased person in the Province, or (ii) movable property anywhere of the deceased person if, at the time of death, the person was ordinarily resident in the Province; (

c) is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to (

i) immovable or movable property in the Province, or (ii) movable property anywhere of a deceased person who, at the time of death, was ordinarily resident in the Province; (

d) is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances: (

i) the trust assets include immovable or movable property in the Province and the relief claimed is only as to that property, (ii) that trustee is ordinarily resident in the Province, (iii) the administration of the trust is principally carried on in the Province, (iv) by the express terms of a trust document, the trust is governed by the law of the Province; (

e) concerns contractual obligations, and (

i) the contractual obligations, to a substantial extent, were to be performed in the Province, (ii) by its express terms, the contract is governed by the law of the Province, or (iii) the contract (

A) is for the purchase of property, services or both, for use other than in the course of the purchaser's trade or profession, and (

B) resulted from a solicitation of business in the Province by or on behalf of the seller;

(

f) concerns restitutionary obligations that, to a substantial extent, arose in the Province; (

g) concerns a tort committed in the Province; (

h) concerns a business carried on in the Province; (

i) is a claim for an injunction ordering a party to do or refrain from doing anything (

i) in the Province, or (ii) in relation to immovable or movable property in the Province; (

j) is for a determination of the personal status or capacity of a person who is ordinarily resident in the Province; (

k) is for enforcement of a judgment of a court made in or outside the Province or an arbitral award made in or outside the Province; or (

l) is for the recovery of taxes or other indebtedness and is brought by Her Majesty in right of the Province or of Canada or by a municipality or other local authority of the Province. [56] But for s.11(a), it is noteworthy that none of these presumptions appear to be directly applicable to family proceedings. The statute does not give a comprehensive guide, encompassing all common law principles and presumptions including those that are long established in the area of family law.

We must look to the common law for more guidance in defining a real and substantial connection. [57] Justice Saunders summarized the considerations at common law that assist in determining whether “ a real and substantial connection exists “ as that phrase is used in

section 4(

e) of the ‘ CJPTA ’ . He wrote the following in Bouch v. Penny , 2009 NSCA 80 : [51] Accordingly, I reject the suggestion that considerations of fairness have no place in the inquiry into the existence of a real and substantial connection, and are only to be weighed during the application of the discretionary forum non conveniens doctrine. In my respectful view, such a prohibition would introduce an unnecessary and unrealistic rigidity to a test that is clearly designed to be flexible.

To impose such a constraint would prevent a judge’s assessment of the totality of the evidence when deciding whether the circumstances made it proper to accept jurisdiction over the action as framed by the plaintiff. [52] From the cases he reviewed, Justice Sharpe identified a list of emerging factors which would be relevant in assessing these jurisdictional questions. Sharpe, J.A. offered a list of eight factors:

(1) The connection between the forum and the plaintiff's claim

(2) The connection between the forum and the defendant

(3) Unfairness to the defendant in assuming jurisdiction

(4) Unfairness to the plaintiff in not assuming jurisdiction

(5) The involvement of other parties to the suit

(6) The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis

(7) Whether the case is interprovincial or international in nature

(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere [53] These were the same eight factors considered by Justice Wright in satisfying himself that Nova Scotia had acquired a real andsubstantial connection to the present litigation. I would endorse this list as a useful series of criteria with which to judge such matters,while at the same time observing that the list is by no means exhaustive. It offers a roadmap to guide judges hearing such applications.

To borrow the language of s. 11 of the Act, the list of factors serves to complement “[w]ithout limiting the right of the plaintiff to proveother circumstances that constitute a real and substantial connection ...”. I would conclude on this point by endorsing the observations ofJustice Sharpe in introducing the factors he identified: [75] It is apparent from Morguard, Hunt and subsequent case law that it is not possible to reduce the real and substantial connection testto a fixed formula.

A considerable measure of judgment is required in assessing whether the real and substantial connection test has beenmet on the facts of a given case. Flexibility is therefore important. [76] But clarity and certainty are also important. As such, it is useful to identify the factors emerging from the case law that arerelevant in assessing whether a court should assume jurisdiction against an out-of-province defendant on the basis of damage sustained inOntario as a result of a tort committed elsewhere. No factor is determinative.

Rather, all relevant factors should be considered andweighed together. ... [58] Nevertheless,

section 7 of the ‘CJPTA’ permits a court to hear a matter even if it lacks territorial competence. It provides: 7 A court that under

Section 4 lacks territorial competence in a proceeding may hear the proceeding notwithstanding that

Section if itconsiders that (

a) there is no court outside the Province in which the plaintiff can commence the proceeding; or (

b) the commencement of the proceeding in a court outside the Province cannot reasonably be required. [59] Finally, the ‘CJPTA’ provides for transfers to and from Nova Scotia (s.14-24). [60] In Abbot v. Algarvio, 2012 NSSC 312, Justice Jollimore followed the ‘CJPTA’ to resolve the jurisdictional issue before theCourt. This decision is a helpful discussion of the inter play of “family law/common law” principles and the subject statute. Atparagraphs 6 - 12 she wrote: [6] In Bouch v.

Penny, 2009 NSCA 80 , 2009 NSCA 80, Justice Saunders, with whom Justices Roscoe and Olandconcurred, approved of the two-step analysis Justice Wright performed in deciding the application at first instance. Justice Wright said,at paragraph 40 of his decision in Penny v. Bouch, 2008 NSSC 378 , 2008 NSSC 378, that where there’s a dispute overassuming jurisdiction, the Court Jurisdiction and Proceedings Transfer Act requires I must first determine whether I can assume

jurisdiction, given the relationship between the subject matter of the case, the parties and the forum. If that legal test is met and I can assume jurisdiction, I must then consider whether I ought to assume jurisdiction. He said this means considering the discretionary doctrine of forum non conveniens. There may be more than one forum capable of assuming jurisdiction and I may decline to exercise jurisdiction because there is another, more appropriate, forum. Can I assume jurisdiction? [7]

Part I of the Court Jurisdiction and Proceedings Transfer Act determines the court’s territorial competence.

Section 4 of the Act provides that only in certain circumstances does the court have territorial competence in a proceeding brought against a person. The only one of those circumstances that could apply in this case is subsection 4(

e) of the Act which refers to circumstances where there is a real and substantial connection between this province and the facts on which the proceeding against that person in based. [8] A “real and substantial connection” is presumed to exist in twelve different categories that are enumerated in

section 11 of the Act. Those are not the only circumstances where a real and substantial connection may exist: they are simply the categories where there is a legislated presumption of real and substantial connection. The opening clause of

section 11 explicitly says that the

section doesn’t limit the plaintiff’s right to prove other circumstances that constitute a real and substantial connection between this province and the facts on which a proceeding’s based. [9] There’s no legislated presumption of real and substantial connection in this case. So, I must return to the factors articulated in the common law to determine whether there is a real and substantial connection between Nova Scotia and the facts on which Ms. Abbott’s case is based. [10] There’s no basis for jurisdiction stated in the Maintenance and Custody Act.

At common law, a court has jurisdiction in a parenting application where the child is present, resident or domiciled in the jurisdiction when the proceedings were begun. [11] Jonah’s been present in Nova Scotia since late June 2012 when he came here with his mother. The application was commenced on July 4, 2012. [12] Jonah was present in Nova Scotia when the proceedings were begun and, as a result, I conclude that I can assume jurisdiction in this application. This conclusion means I must consider whether I ought to assume jurisdiction.

As I’ve noted this means considering the discretionary doctrine of forum non conveniens. There may be more than one forum capable of assuming jurisdiction. I may decline to exercise jurisdiction because there is another, more appropriate, forum. Justice Jollimore concluded: [27] Mr. Algarvio is ready to begin a parenting application in Ontario. He began to prepare this application shortly after Ms. Abbott moved Jonah to Nova Scotia. It’s been held in abeyance because of Ms. Abbott’s application.

If I don’t assume jurisdiction, there will not be significant delay in addressing Jonah’s parenting. [28] In light of all these considerations, I conclude this is a case where I can have jurisdiction but, to ensure fairness and the availability of the best evidence in determining Jonah’s custody, I should decline jurisdiction. This matter should be heard in Ontario. [61] In Yogis v. Garado 2011 NSSC 110 Justice Jollimore held that as between Alberta and Nova Scotia the custody and access issue should proceed in Nova Scotia.

She concluded inter alia that fairness and the availability of the best evidence dictated that the children ’ s custody be determined here. Although both Alberta and Nova Scotia had jurisdiction, no proceeding had been commenced in Alberta. [62] Given the broad and vague nature of the ‘ real and substantial connection ’ test of s.4(

e) of the ‘ CJPTA ’ , it is clear that the common law remains relevant to determining whether a Court has jurisdiction and secondly, whether it is also the forum conveniens .

The analysis must start with an application of the statute to the facts found to exist. Conclusion [63] Jurisprudence contains a range of decisions wherein a determination of territorial competence and forum conveniens was required. [64] Many of these precedents pre date the ‘ CJPTA ’ . However, they have a common and still relevant theme. [65] In Lariviere v. Lariviere [1999] N.S.J. 490 , Kelly, J. considered whether a Nova Scotia Court should exercise jurisdiction over children in Alberta.

In that case the parties had earlier agreed that the children would only be temporarily placed in the father ’ s care and then returned to the mother. Nova Scotia was not the “ ordinary residence ” of the children and at the time of the hearing, the mother had returned the children to Alberta and they were residing there with her. Justice Kelly declined jurisdiction on the basis of Alberta being the more convenient forum. [66] In Robart v. Carvery [1998] N.S.J.

No. 201 Judge Gass then of the Family Court of Nova Scotia determined that the balance of convenience weighed in favour of the British Columbia courts and she declined jurisdiction to hear the matter. [67] In MacLean v. MacLean [1996] N.S.J. 167 , Edwards, J. ordered that a custody/access hearing should take place in Truro, not Sydney because the child had, “ the most substantial connection with the Truro area.

It is in that area that the child ’ s roots, school, home, friends and support system are located. ” The substantial connection test is contained in the Divorce Act . [68] Within Nova Scotia, Rule 59.03(4) provides for the transfer of a proceeding to another judicial district: Where a proceeding is started and heard Rule 59.03(4)

(4) A judge may transfer a proceeding to an office of the court in one of the following judicial districts: (

a) a district where a child, who is the subject of a custody, access, or parenting dispute in the proceeding, ordinarily resides; (

b) a district where it is substantially more convenient to deal with the proceeding or a step in the proceeding. [69] Once again, as between competing jurisdictions even within Nova Scotia, the ordinary residence and convenient forum are the determining factors when a Court must determine the appropriate forum for hearing a matter involving a child. [70] It is argued on behalf of Mr. Herritt that Ms. Detcheverry submitted to the jurisdiction of this Court and the Court ’ s territorial competence is therefore founded on the basis of s.4(

b) of the ‘ CJPTA ’ . It is also argued that she agreed to accept the jurisdiction and that this is a second basis upon which this court may find it has jurisdiction as provided by s.4(

c) of the ‘ CJPTA ’ . Finally the Court must decide if

section 4(

e) of the ‘ CJPTA ’ has application i.e. whether the court ’ s jurisdiction can be founded on the basis that there is a real and substantial connection between Nova Scotia and the facts upon which the proceeding is based. [71] - has territorial competence been established?

(

i) s. 4(b) ‘ CJPTA ’has Ms. Detcheverry submitted to the territorial jurisdiction of this Court? (ii) s. 4(c) ‘ CJPTA ’ has Ms. Detcheverry agreed to the territorial jurisdiction of this Court? [72] I will address these two arguments together. It is correct that Ms. Detcheverry attorned to the jurisdiction of this Court in July 2012 when required to seek the return of her child to Saint-Pierre and Miquelon. At the time, she had no practical alternative or legal alternative given the parties ’ legal status quo and the physical location of the child.

The July 2012 hearing was made necessary by a unilateral change in the parenting status quo by Mr. Herritt and by the fact that the trial Court in Saint-Pierre and Miquelon refused to intervene. [73] In my view, she neither submitted to or agreed to accept the territorial jurisdiction of this Court. She was directed to utilize our Court by the Saint-Pierre and Miquelon Trial Court.

That direction has since been overturned by the Appeal Court in that territory. (iii) s. 4(e) ‘ CJPTA ’ has a real and substantial connection been found? [74] The fifth (5 th ) basis for finding territorial competence and outlined in s.4(1) of the ‘ CJPTA ’ , is that there is “ a real and substantial connection between the Province and the facts on which the proceeding against that person is based ” .

This former common law principle is now a statutory basis bringing the subject situation within the jurisdictional competence of this Court. [75] As observed, the presumptions of s.11 of the ‘ CJPTA ’ are not helpful in determining whether, on these facts a real and substantial connection exists. I must turn to the list of eight common law factors enumerated succinctly by Justice Saunders and reproduced supra at paragraph 57. These factors must be examined to determine if a real and substantial connection to Nova Scotia exists. They are:

(1) The connection between the forum and the plaintiff's claim

(2) The connection between the forum and the defendant

(3) Unfairness to the defendant in assuming jurisdiction

(4) Unfairness to the plaintiff in not assuming jurisdiction

(5) The involvement of other parties to the suit

(6) The court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis

(7) Whether the case is interprovincial or international in nature

(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere

[76] Many of these factors must also be considered if and when a Court must determine the forum conveniens for litigation. As Saunders J. writing for the majority in Bouch v. Penny observed the facts to be examined are those that exist at the time of this hearing (see the decision at para. 5-6). [77] Herein, the child has lived more than an additional year in Saint-Pierre and Miquelon since the decision of Justice MacDonald. [78] In fact, she has lived there most of the time since December 2010. [79] It is my view that the child has a substantial connection to Saint-Pierre and Miquelon.

The mother is resident there; the child has been resident there with her mother since 2010; the father lived there; both the mother and the father initiated legal proceedings in this province to address the custody and access issues and the mother did the same in Saint-Pierre and Miquelon. [80] I am also satisfied that the child has a real and substantial connection to Nova Scotia. The child, now five (5) years old, was born and lived here for the first two years of her life. Her father lives here as does his extended family. Both parties initiated litigation here. The mother and the father both sought to apply

section 37 of the Nova Scotia Maintenance and Custody Act . [81] I am therefore satisfied that both Nova Scotia and Saint-Pierre and Miquelon have jurisdiction or territorial competence to hear this matter. Must I determine whether jurisdiction should be declined? - has the forum been challenged? [82] I am mindful of Justice LeBel ’ s comments in Van Breda at paragraph 102 : [102] Once jurisdiction is established, if the defendant does not raise further objections, the litigation proceeds before the court of the forum.

The court cannot decline to exercise its jurisdiction unless the defendant invokes forum non conveniens. The decision to raise this doctrine rests with the parties, not with the court seized of the claim. . . . . . [83] I must therefore decide, whether, on these facts, the Court should embark upon an inquiry as to the forum conveniens given that Ms. Detcheverry was not represented and did not appear on June 17, 2013 when argument on the issue of the court ’ s jurisdiction was made . [84] Justice MacDonald ’ s order permitted the child to return to Saint-Pierre and Miquelon.

It is clear there was an expectation that a final hearing would occur in Nova Scotia. However, I am satisfied, after reviewing Justice MacDonald ’ s comments in context, that she was not precluding an application to have the matter adjudicated in Saint-Pierre and Miquelon. Her comments reflected the circumstances as they then existed. At page 13, line 20 Justice MacDonald observed “ it will be your client who will have to bring all those people over here if she continues to accept this jurisdiction ” . [85] Much has happened. Clearly, Ms. Detcheverry no longer accepts the jurisdiction of this Court.

This court was told in March 2013 that if the Saint-Pierre and Miquelon Appeal Trial Court re-hearing the matter ruled in Ms. Detcheverry ’ s favour, she would challenge this court ’ s jurisdiction. In the context in which this was communicated this was notice of a challenge to the conclusion that Nova Scotia was the forum conveniens . [86] Even if I am mistaken in this conclusion, I would consider the issue of forum conveniens based on the Court ’ s parens patriae jurisdiction.

- What is the forum conveniens ? [87] The foregoing conclusion as to the Court ’ s jurisdiction gives rise to an assessment of the forum conveniens for litigation centered on the future custody and access arrangement for the child. [88] This case must therefore be resolved on the basis of an application of principles that require an assessment of whether Nova Scotia or Saint-Pierre and Miquelon is the forum conveniens for a hearing to determine this child ’ s best interests, having concluded that the subject of the litigation and the parties have a real and substantial connection to Nova Scotia. [89]

Section 12 of the ‘ CJPTA ’ provides guidance on when a court may decline territorial competence. These factors address a determination of the forum conveniens after territorial competence is found to exist.

Section 12 provides: 12

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside the Province is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (

b) the law to be applied to issues in the proceeding; © the desirability of avoiding multiplicity of legal proceedings; (

d) the desirability of avoiding conflicting decisions in different courts; (

e) the enforcement of an eventual judgment; and (

f) the fair and efficient working of the Canadian legal system as a whole. [90] Justice Fichaud in Armoyan v. Armoyan 2013 NSCA 99 addressed the application of each of these factors beginning at paragraph 217. He described the objective of the governing principles to determine forum conveniens : 273. As noted above , in Van Breda , Justice Lebel said the governing objective was “to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient”.

These principles are embodied in the CJPTA ’s criteria, including: s. 12(1) [“the interests of the parties to a proceeding and the ends of justice”]; s. 12(2) [“the circumstances relevant to the proceeding”]; s. 12(2)(a) [“comparative convenience and expense for the parties to the proceeding and for their witnesses”]; s.12(2)(e) [the enforcement of an eventual judgment”]; and s.12(2)(f) [“fair and efficient working of the Canadian legal system”].

[91] With the governing objective as fairness to both parties and efficiency in resolving litigation I must consider the foregoing enumerated considerations mandated by s. 12 of the ‘ CJPTA ’ to the extent that they apply to determining whether I should decline jurisdiction. [92] The comments of Chief Justice McLachlin reproduced by Justice Fichaud at paragraph 221 in Armoyan purporting to limit the forum non conveniens test to the rules enumerated in s.11 of the British Columbia CJPTA [equivalent to s.12 of the Nova Scotia ‘ CJPTA ’ ] must not be literally construed.

The context of her comments must be understood. [93] Chief Justice McLachlin concurred with the decision of LeBel, J. who stated the following at paragraph 105 in Van Breda : [105] A party applying for a stay on the basis of forum non conveniens may raise diverse facts, considerations and concerns. Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient.

For example, s. 11(1) of the CJPTA provides that a court may decline to exercise its jurisdiction if, “[a]fter considering the interests of the parties to a proceeding and the ends of justice”, it finds that a court of another state is a more appropriate forum to hear the case. Section 11(2) then provides that the court must consider the “circumstances relevant to the proceeding”. To illustrate those circumstances, it contains a non-exhaustive list of factors: (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (

b) the law to be applied to issues in the proceeding; (

c) the desirability of avoiding multiplicity of legal proceedings; (

d) the desirability of avoiding conflicting decisions in different courts; (

e) the enforcement of an eventual judgment; and (

f) the fair and efficient working of the Canadian legal system as a whole. [s. 11(2)] [94] The Court retains a residual power to decline to exercise jurisdiction “ in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The Court can stay proceedings brought before it on the basis of the doctrine ” (see Lebel, J. at paragraph 104 in Van Breda ).

In my view, this authority includes a determination of what forum is more favourable to an assessment of what is in the best interests of a child. - Comparative convenience and expense [95] Whether Ms. Detcheverry returns to Halifax for a hearing or Mr. Herritt is required to travel to Saint-Pierre and Miquelon each is faced with substantial inconvenience and expense to simply attend. There is also the issue of the language of the proceedings. [96] The Court is not aware of the ability of either to function in a second language, English in the case of Ms. Detcheverry and French in the case of Mr. Herritt.

Each has lived in the other ’ s community for extended periods of time. However, it appears Ms. Detcheverry lived in Nova Scotia longer than was the reverse. [97] It will be more inconvenient for Ms. Detcheverry to bring forward evidence than it will for Mr. Herritt if the hearing is in Halifax. The most relevant evidence is that which describes the circumstances of this child over the past three years. This is the

evidence that will permit an assessment of how well the child is doing in her current circumstances. [98] Evidence from the child ’ s school; the child ’ s health care providers; family members and family friends is highly relevant. [99] In contrast, Mr. Herritt can not offer much local evidence about his daughter ’ s life that is current. Even he must look to the witnesses in Saint-Pierre and Miquelon.

Having these witnesses travel to Nova Scotia will be costly and inconvenient. [100] To address these practical issues that arise when a hearing is necessary, the Divorce Act offers the “ most substantially ” connected test; the Hague Convention describes the criteria as habitual residence and Rule 59.03(4) references “ ordinary residence ” . [101] The child herein is more substantially connected to Saint-Pierre and Miquelon than Nova Scotia. She has her ordinary residence there. - Law to be applied [102] The Court must be guided by an assessment of the child ’ s best interests.

Saint-Pierre and Miquelon Court ’ s are guided by the same consideration. [103] France is a developed democracy, a signatory to the Hague Convention on Civil Aspects of International Child Abduction and a signatory to the Convention on the Rights of the Child. [104] From the documents filed in this proceeding, I have evidence of the adjudicative process in Saint-Pierre and Miquelon. I conclude that their process of adjudication is similar to our own. There is also a right of appeal. France has a civil code which guides adjudication of these issues.

The civil code of the Province of Quebec is modelled on it. [105] On the issue of determining jurisdiction and forum conveniens , similar consideration apply. I conclude this after reviewing the decision of the Saint-Pierre and Miquelon Appeal Court. - Avoidance of a multiplicity of legal proceedings [106] As stated, the Saint-Pierre and Miquelon Supreme Court had declined jurisdiction over this matter by decision dated April 13, 2012. However, the Saint-Pierre and Miquelon Appeal Court overturned that ruling in late July 2012 following a hearing on July 6, 2012.

The matter was returned to the Saint-Pierre and Miquelon Trial Court. [107] This matter is being litigated in Saint-Pierre and Miquelon. That Court has now taken jurisdiction of the issues before me. That conclusion is a reasonable one. -Avoidance of conflicting decisions [108] The desire to avoid conflicting decision is obvious. Given the human cost of litigation, particularly that which involves the life of a child, it is important that all reasonable measures be taken to lessen family conflict and to eliminate uncertainty for a child. -Enforcement of judgment

[109] Given France is a signatory to international treaties that have as their objective the protection of children and which contain a commitment to cooperate with other countries, this concern is addressed. [110] There is no basis for believing that an order of a Saint-Pierre and Miquelon Court would be less enforceable here than is the reverse.

Nothing will therefore turn on this criteria. -Fair and efficient working of the Canadian legal system [111] It is not in the interest of the Nova Scotia or the Saint-Pierre and Miquelon legal system that there be a proceeding in each jurisdiction and dealing with the same parties, the same evidence and the same issues. [112] This must be avoided if at all possible. [113] Notwithstanding all of the foregoing, an assessment of the best interests of a child is not to be waived to what is otherwise a less convenient jurisdiction because of the desire to avoid a conflicting decision or in the name of an efficient Canadian legal system.

That would not be fair. Conclusion [114] I am satisfied that the interests of the parties to this proceeding and the ends of justice compel this Court to decline jurisdiction in favour of Saint-Pierre and Miquelon. [115] I therefore stay this proceeding based on the doctrine of forum conveniens . ACJ