Lamothe v. Lamothe, 2014 NSSC 137

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Lamothe v. Lamothe , 2014 NSSC 137 Date: 2014-04-10 Docket: SFHMCA-089959 Registry: Halifax Between: Maria Christine Lamothe Applicant v. Corey Murdock Lamothe Respondent Library Heading Judge: The Honourable Justice Elizabeth Jollimore Heard: April 10, 2014 in Halifax, Nova Scotia

Summary: Wife in Nova Scotia applied for spousal maintenance and property division. At interim motion, husband challenged court’s jurisdiction. Parties last lived in Ontario and had lived there for 13 years over 19 years of cohabitation (including last 7 years). Children, aged 18 and 20, remained with husband in Ontario. Real and substantial connection to Nova Scotia not found to exist and no circumstance justifying exercise of general discretion to assume jurisdiction. Relief could be pursued in Ontario and wife could also apply for maintenance under the Interjurisdictional Support Orders regime.

Key Words: Civil Procedure Rules (2009), Rule 54.03, Court Jurisdiction and Proceedings Transfer Act , Divorce Act , Interjurisdictional Support Orders Act , jurisdiction, Maintenance and Custody Act , Matrimonial Property Act , Pension Benefits Division Act , real and substantial connection Legislation: Court Jurisdiction and Proceedings Transfer Act , S.N.S. 2003 (2d Sess.), c. 2, sections 4, 7 , 11 and 12 Civil Procedure Rules (2009), Rule 54.03 Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 3(1) Family Law Act , R.S.O. 1990, c. F.3,

section 33 Maintenance and Custody Act , R.S.N.S. 1989, c. 160, subsections 3A(1) and

section 4 Interjurisdictional Support Orders Act , S.N.S. 2002, c. 9 Matrimonial Property Act , R.S.N.S. 1989, c. 275,

section 22 Pension Benefits Division Act , S.C. 1992, c. 46, Sch. II THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Lamothe v. Lamothe , 2014 NSSC 137

Date: 2014-04-14 Docket: SFHMCA-089959 Registry: Halifax Between: Maria Christine Lamothe Applicant v. Corey Murdock Lamothe Respondent Judge: The Honourable Justice Elizabeth JollimoreHeard: April 10, 2014, in Halifax, Nova ScotiaCounsel: Maria Lamothe, self-represented Amber Penney, for Corey Lamothe By the Court: Introduction [1] These are written reasons following an oral decision rendered on April 10, 2014.

I have edited them for grammar and toprovide citations to the statutes and scholarship I mentioned in my decision. [2] In February 2014, Maria Lamothe applied for spousal maintenance and a division of property. Her spousal maintenanceapplication is pursuant to the Maintenance and Custody Act, R.S.N.S. 1989, c. 160 and her application for a property division is pursuantto the Matrimonial Property Act, R.S.N.S. 1989, c. 275. Today, she seeks interim spousal maintenance and an interim division ofpension benefits. [3] Ms.

Lamothe filed an affidavit and Statements of Income, Expenses and Property when she started her application. On April4, 2014, she filed a supplemental affidavit. [4] In response, Corey Lamothe filed financial documents (Statements of Income, Expenses and Property) and an affidavit. He hasalso raised a preliminary matter, that of my jurisdiction to hear Ms. Lamothe’s applications. Family history [5] The Lamothes cohabited for some months prior to their marriage in September 1992. They separated in May 2011. Accordingto Mr.

Lamothe, his wife has lived in Nova Scotia since the spring of 2011, while he and the children continue to live in Ontario. Ontario is the last place where the parties lived together. They aren’t divorced, and no legal proceedings have been started in Ontario. [6] Mr. Lamothe is employed by the Department of National Defence where he’s worked since 1988. His career has required thecouple to relocate various times during their marriage. From their original home, they moved to Trenton, Ontario in 1994. They cameto Halifax in 1997. They moved to Washington, D.C. in 2000.

In 2004, they moved to Borden, Ontario and, in 2009, they moved toKingston, Ontario. They lived as a family in Ontario from 2004 until the separation in 2011. Mr. Lamothe and the children still live inOntario. [7] Over the nineteen years of their cohabitation, they spent thirteen years in Ontario, including the last seven. Jurisdiction [8] Jurisdictional disputes are governed by the Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2d Sess.), c. 2. The Court of Appeal has discussed

Part I of the Act most recently in Bouch v. Penny, 2009 NSCA 80. (Leave to appeal this decision tothe Supreme Court of Canada was dismissed on March 25, 2010 at .) [9] In Bouch v. Penny, 2009 NSCA 80, Justice Saunders, with whom Justices Roscoe and Oland concurred, approved of JusticeWright’s analysis in deciding the application at first instance. Justice Wright said, at paragraph 20 of his decision in Penny v.

Bouch,2008 NSSC 378, that where there’s a dispute over assuming jurisdiction, the Court Jurisdiction and Proceedings Transfer Act requires Imust first determine whether I can assume jurisdiction, given the relationship between the subject matter of the case, the parties and theforum. Whether I can do this is addressed in the analysis required by

section 4 of the Court Jurisdiction and Proceedings Transfer Act. [10] If that legal test is satisfied and I can assume jurisdiction, I must then consider whether I ought to assume jurisdiction. The

analysis this requires is found in

section 12 of the Court Jurisdiction and Proceedings Transfer Act. Conversely, if that legal test is notsatisfied and I cannot assume jurisdiction, I turn to

section 7 and ask if there are circumstances that mean I should exercise my generaldiscretion and assume jurisdiction to hear Ms. Lamothe’s applications. Can I assume jurisdiction? [11] The Court Jurisdiction and Proceedings Transfer Act addresses the court’s territorial competence in

Part I.

Section 4 of the Actsays that only in certain circumstances does a court have territorial competence in a proceeding brought against a person and it identifiesthose circumstances. Subsections 4(

a) to (

d) are not relevant to Ms. Lamothe’s applications. The only circumstance that might apply isfound in subsection 4(

e) which refers to circumstances where there is a real and substantial connection between Nova Scotia and the factson which the proceeding against Mr. Lamothe is based. [12] A “real and substantial connection” is presumed to exist in the twelve different categories listed in

section 11. Ms. Lamothe’sclaims do not fall within legislated presumption of real and substantial connection. [13] The opening clause of

section 11 explicitly says that the

section doesn’t limit Ms. Lamothe’s right to prove other circumstancesthat constitute a real and substantial connection between Nova Scotia and the facts on which her applications are based. [14] Since there is no legislated presumption that Ms. Lamothe’s claims have a real and substantial connection to Nova Scotia, Imust actually assess whether they do. In Muscutt v. Courcelles, (ON CA), Justice Sharpe (with whom JusticesRosenberg and Feldman concurred) said, at paragraph 75, that there is no “fixed formula” for this assessment.

At paragraphs 76 to 110of the Court’s reasons, Justice Sharpe discussed eight factors identified in the jurisprudence which are relevant to assessing whether thereis a real and substantial connection. [15] While Muscutt v. Courcelles, (ON CA) was decided before the Court Jurisdiction and ProceedingsTransfer Act was enacted, Nova Scotia’s Court of Appeal affirmed continued reliance on Muscutt v. Courcelles, (ONCA) at paragraphs 44 and 45 in Bouch v. Penny, 2009 NSCA 80, as noted by Vaughan Black, Stephen G.A.

Pitel and Michael Sobkin inStatutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act (Toronto: Carswell, 2012) at 137. So I turnto the factors in Muscutt v. Courcelles, (ON CA). The connection between Nova Scotia and Ms. Lamothe’s applications [16] Ms. Lamothe resides in Nova Scotia. She says her parents and cousins live in Nova Scotia as well and they would bewitnesses. Her parents would testify about a family loan and her cousins would testify about events which she says occurred between1997 and 2000 when the family lived in Halifax.

It isn’t apparent that the events about which her cousins would testify are immediatelyrelevant to her applications. The connection between Nova Scotia and Mr. Lamothe [17] Mr. Lamothe has lived in Nova Scotia in the past, for an uncertain period of time, but at least from 1997 until 2000. Unfairness to Mr. Lamothe in taking jurisdiction [18] The unfairness to Mr. Lamothe in taking jurisdiction arises because most of the parties’ married life was spent in Ontario. Thewitnesses he would call are there. [19] Ms. Lamothe’s spousal maintenance proceeding is governed by the Maintenance and Custody Act.

Subsection 3A(1) of the Actsays that when I’m faced with applications for both child maintenance and spousal maintenance I’m to give priority to childmaintenance. [20] In his affidavit, Mr. Lamothe says that the couple’s older child is in university. She’s received student loans to finance herstudies. Their younger child has completed high school and has recently applied to join the military. Both children live with at homewith their father, and he hasn’t received financial assistance from Ms.

Lamothe for the children at any point since the separation in thespring of 2011. [21] I don’t have a child maintenance application before me; however, I don’t believe I could ignore the interplay between thesefinancial obligations if I was deciding the spousal maintenance claim. The best evidence regarding the children’s financialcircumstances is currently available in Ontario. [22]

Section 4 of the Maintenance and Custody Act lists one dozen factors I’m to consider in awarding spousal maintenance. Someof these, as reflected in the evidence contained in Mr. Lamothe’s affidavit and Ms. Lamothe’s supplemental affidavit, require witnesses inOntario. Given the evidence provided to date, it appears that there more witnesses in Ontario than in Nova Scotia, which would put Mr.Lamothe to greater expense.

In my limited experience (Brandon, 2011 NSSC 128 at paragraph 13), even if witnesses from anotherprovince are able to testify by video link, there’s expense associated with the video service. [23] Mr. Lamothe says that he would seek an unequal division of property, in light of Ms. Lamothe’s conduct during the latter yearsof their marriage and the early years of their separation.

Again, all the relevant witnesses are located in Ontario, where events occurred. [24] In Nova Scotia, the Matrimonial Property Act governs the division of property, including pensions and any order for division ofan Armed Forces pension is given effect under the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II: Croitor, 2001 NSCA 37. [25]

Section 22 of the Matrimonial Property Act is a choice of law provision. With regard to movable property, it requires that thelaw of the parties’ last common habitual residence be applied in addressing their property rights. So, even if the application to divideproperty was heard in Nova Scotia, the decision would be made pursuant to Ontario law, the Family Law Act, R.S.O. 1990, c. F.3.

[26] There are means for proving foreign law in Nova Scotia. Civil Procedure Rule 54.03 explains how the law of another provinceis proven. An expert witness may be required in Nova Scotia to prove Ontario law. This would not be necessary in Ontario. Unfairness to Ms. Lamothe in not taking jurisdiction [27] The unfairness to Ms. Lamothe would be that arising from being compelled to litigate her pension division claim in Ontario. [28] In Ontario, Ms. Lamothe’s spousal maintenance claim could proceed under

section 33 of the Family Law Act. Like theMaintenance and Custody Act, it contains a lengthy list of factors to be considered. Many are better addressed by witnesses or evidencein Ontario. None, on my review, requires any witness from Nova Scotia except Ms. Lamothe. So she would not be required to producewitnesses from Nova Scotia at an Ontario proceeding. [29] The unfairness of proceeding in Ontario is mitigated by the availability of interjurisdictional support legislation. Ms. Lamothecan claim maintenance without ever leaving Nova Scotia.

She may apply under the Interjurisdictional Support Orders Act, S.N.S. 2002,c. 9 in Nova Scotia. Her applicatoin will be transmitted to Ontario and Mr. Lamothe can respond to it there. Other parties’ involvement [30] There are no other parties, so this is not weigh in my considerations. The court’s willingness to enforce a foreign judgment rendered on the same jurisdictional basis [31] At paragraph 93 in Muscutt v. Courcelles, (ON CA), Justice Sharpe said that I should consider whether thejudgment of a foreign court, acting on the same jurisdictional basis as I am acting, would be recognized and enforced here.

If I would notrecognize and enforce such a judgment, I should not assume jurisdiction. [32] This court would recognize and enforce a foreign judgment obtained on the same jurisdictional basis. This factor favoursassuming jurisdiction. The nature of the dispute: international or interprovincial [33] This is an interprovincial dispute which means it is easier for me to assume jurisdiction because there is much greaterconsistency and uniformity and much less risk of unfairness to the parties than there might be in an international dispute where the lawsand legal systems may be much different.

Comity and the standards of jurisdiction used by other courts [34] According to Justice Sharpe at paragraph 102 in Muscutt v. Courcelles, (ON CA), I need not consider this. Is there a real and substantial connection? [35] Overall, there is a greater connection between the claims, Mr. Lamothe and Ontario than between the claims, Mr. Lamothe andNova Scotia. There is greater unfairness to Mr. Lamothe in proceeding in Nova Scotia, having regard to the availability of witnesses andthe proof of Ontario property division law, than there is to Ms.

Lamothe, who can pursue her maintenance claim under theInterjurisdictional Support Orders Act and who will be dealing with Ontario law on her property division application in any event. [36] Considering all these factors, I conclude that there is no real and substantial connection to Nova Scotia and I cannot assumejurisdiction. Should I exercise my general discretion? [37] Where I cannot assume jurisdiction, I don’t enter into the second step of the analysis, considering whether I ought to assumejurisdiction, having regard to subsection 12(2). However, my analysis isn’t complete. I must have regard to

section 7 of the CourtJurisdiction and Proceedings Transfer Act which provides that I have a general discretion to hear Ms. Lamothe’s applications,notwithstanding

section 4, if I consider that there’s no court outside Nova Scotia where Ms. Lamothe can bring her applications or Ms.Lamothe cannot reasonably be required to bring her applications outside Nova Scotia. Can Ms. Lamothe bring her claims in a court outside Nova Scotia? [38] Before I consider whether Ms. Lamothe can bring her spousal maintenance claim in a court outside Nova Scotia, I do remindher that she can bring this application in the Family Division, under the Interjurisdictional Support Orders Act.

Once filed in NovaScotia, her application is then sent to a court in Ontario (the reciprocating jurisdiction – Mr. Lamothe’s ordinary residence) where Mr.Lamothe can respond and an Ontario judge will make an order. In his article, “Conflict of Laws: Court Jurisdiction and Choice of Lawin Family Matters”, (2013) 32 C.F.L.Q. 53 at 68, Vaughan Black observed that most geographically complex support cases are coveredby this legislation which has a simple jurisdictional test: where is the applicant’s ordinary residence?

The Interjurisdictional SupportOrders Act has a tremendous advantage in simplifying geographically complex support cases. [39] Otherwise, Ms. Lamothe’s spousal maintenance claim can be brought in Ontario under

Part III (section 33) of the Family LawAct. Alternately, since Mr. Lamothe has lived in Ontario for the last year, Ms. Lamothe could petition for divorce in Ontario pursuant to subsection 3(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and claim spousal support. [40] Ms. Lamothe’s property division application can also be brought in another court. It is possible for her to advance this claim inOntario on its own or joined in a petition for divorce.

[ 41 ] There are courts outside Nova Scotia where Ms. Lamothe can start these claims. This means there’s no basis for me to exercise my discretion and assume jurisdiction under subsection 7 (a). [ 42 ] Subsection 7(

b) allows me to assume jurisdiction where I consider that it cannot be reasonably required that Ms. Lamothe start a proceeding outside Nova Scotia. The requirement that Ms. Lamothe start a maintenance and property proceeding outside Nova Scotia can reasonably be required; indeed, it may be preferable, given the application of Ontario law. Conclusion [ 43 ] I do not have jurisdiction to hear Ms. Lamothe’s applications under

section 4 of the Court Jurisdiction and Proceedings Transfer Act, and I have no discretion to assume such jurisdiction under

section 7 of the Act. Mr. Lamothe’s motion is granted. The order is being provided to the parties with these reasons. _________________________________ Elizabeth Jollimore, J.S.C.(F.D.) Halifax, Nova Scotia