Davies v. Collins, 2011 NSCA 79

Editor’s Note: Corrigendum released on October 14, 2011. Original judgment has been corrected with text of corrigendum appended. NOVA SCOTIA COURT OF APPEAL s Citation: Davies v. Collins, 2011 NSCA 79 Date: 20110913 Docket: CA 342419 Registry: Halifax Between: Pamela Mary Davies Appellant v. Jennifer Jaroda Collins Respondent Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: June 14, 2011 Subject: Conflicts of laws. Succession. Wills and Estates.

Summary: Appeal of declaration that deceased’s Nova Scotia Will was revoked by his deathbed marriage in Trinidad. Appellant was executrix and principal beneficiary under deceased’s 1988 Will. Appellant and deceased were divorced in 2001. Deceased lived with the respondent from 2000 until death in 2007. Trinidad marriage was in extremis – a form of marriage not recognized in Nova Scotia. Such marriages do not revoke a Will under Trinidad law.

Section 17 of the Wills Act , R.S.N.S. 1989, c. 505, revokes Wills made prior to marriage (unless made in contemplation of marriage). Chambers judge determined that Nova Scotia law recognized the marriage in Trinidad. The deceased was domiciled in Nova Scotia when he married. Therefore, s. 17 of the Wills Act revoked his will. Issue: Did Chambers judge err by not applying law of Trinidad which would not have revoked the 1988 Will?

Result: Appeal dismissed. Appellant conceded that Trinidadian marriage was valid and should be recognized under Nova Scotia law. Parties agreed that the deceased was domiciled in Nova Scotia at the time of marriage. Thus, Nova Scotia law determined the effect of the marriage on the Will, ie., it was revoked. Comity did not require Nova Scotia to recognize the Trinidadian consequence of non-revocation which contravened domestic law and the deceased’s presumed intention. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet.

The full court judgment consists of 13 pages. NOVA SCOTIA COURT OF APPEAL Citation: Davies v. Collins, 2011 NSCA 79 Date: 20110913

Docket: CA 342419 Registry: Halifax Between: Pamela Mary Davies Appellant v. Jennifer Jaroda Collins Respondent Judges: Saunders, Farrar and Bryson, JJ.A. Appeal Heard: June 14, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bryson, J.A., Saunders and Farrar, JJ.A. concurring. Counsel: Timothy C. Matthews, Q.C. and Gregory Clooney, for the appellant J. Gordon Allen, for the respondent Reasons for judgment : 1 .

This appeal raises the interesting question of whether a foreign marriage – whose form would not be recognized in Nova Scotia – has the effect of revoking a Nova Scotia Will. 2 . In 1971 Dr. Davies and the appellant, Ms. Davies, were married in the United Kingdom. In 1975, they moved to Nova Scotia. In 1976, they both became Canadian citizens. On July 25, 1989, Dr. Davies executed a Will naming Ms. Davies as executrix and principal beneficiary. 3 . In 1993, Dr. Davies and Ms. Davies separated and began living apart. They were divorced on August 11, 2001. 4 . In 1999, Dr.

Davies began working in Trinidad and Tobago (“Trinidad”). In 2000, Dr. Davies developed a relationship with the respondent, Jennifer Jaroda Collins, which continued until his death on July 29, 2007. 5 . On July 27, 2007, Dr. Davies was admitted to hospital in Trinidad. In a dying condition and two days before he died, Dr. Davies entered into a marriage in extremis with Ms. Collins. Such marriages are not recognized by Nova Scotia law but are valid under the laws of Trinidad. 6 . When he died, Dr. Davies owned real estate in Trinidad and Wales as well as personal property in Canada, the U.K., Ireland and Trinidad.

The parties agreed that Dr. Davies died while domiciled in Canada and specifically, Nova Scotia. 7 . On April 6, 2008, Ms. Collins obtained a Grant of Administration in Trinidad. Ms. Davies brought proceedings to revoke

that Grant but her application was dismissed without a hearing on December 17, 2009. 8 . Ms. Davies subsequently attempted to probate the Will in Nova Scotia but this was declined in light of the Grant of Administration in Trinidad. 9 . On May 11, 2010, Ms. Davies applied to the Supreme Court of Nova Scotia for a declaration that the marriage in extremis in Trinidad did not revoke the 1989 Nova Scotia Will. The matter was heard by the Honourable Justice Peter Rosinski. 10 . Justice Rosinski found and declared that the marriage of Dr. Davies and Ms.

Collins in Trinidad on July 27, 2007 was valid and constituted a “marriage” within the meaning of s. 17 of the Wills Act , R.S.N.S. 1989, c. 505 and thus had the effect of revoking Dr. Davies’ Will of July 25, 1989 ( 2010 NSSC 457 ). 11 . Ms. Davies now appeals alleging the following errors: i. 1. In deciding that the Will was revoked by the marriage in Trinidad, the judge erred in characterizing the legal question as one of succession law (governed by the law of Nova Scotia) as opposed to matrimonial law (governed by the law of Trinidad); ii. 2.

The judge erred by failing to apply the whole law of Trinidad as a matter of comity; iii. 3. The judge erred by analyzing the question as a contest between the present wife and former wife, or as a matter of preferring the “new” family over the “old”, and inappropriately took into account other “extraneous” matters. iv. STANDARD OF REVIEW 12 . The parties both submit that the issues raised on appeal are questions of law, reviewable on a standard of correctness. I agree. i. ISSUE 1 - Characterization of the Issue: Succession Law or Matrimonial Law? 13 .

Under s. 17 of the Nova Scotia Wills Act , the marriage of a testator revokes his or her Will. The law of Trinidad and Tobago is to the same effect, except in the cases of marriages in extremis . Both the Wills Act and Probate Act , Laws Trinidad & Tobago, c. 9:03, s. 48 and the Marriage Act , Laws Trinidad & Tobago, c. 45:01, s. 42 provide that marriages in extremis do not revoke a prior Will. 14 . In essence, the argument of Ms. Davies is that the status of Dr. Davies’ last Will should be determined under the law of one jurisdiction - that of Trinidad.

She points to the apparent contradiction between Nova Scotia recognizing a marriage in extremis – a form of marriage not known to our law – but then giving effect to s. 17 of the Wills Act , whereas in Trinidad marriages in extremis do not revoke a Will. 15 . On appeal, Ms. Davies agreed that the judge was correct to recognize the validity of the marriage between Dr. Davies and Ms. Collins since it was a valid marriage in Trinidad, the lex loci celebrationis , (the law of the place of celebration). There was no challenge regarding Dr. Davies’ capacity to marry. But Ms.

Davies argues that the judge erred by not applying the matrimonial property consequences of such a marriage according to the law of Trinidad. For marriages in extremis , that means no revocation of Dr. Davies’ Will. 16 . Typically, a choice of law analysis involves three steps: i. (1) characterization of the question or issue to be decided; ii. (2) selection of the “connecting factor” which connects the legal question with the law of a particular place; and iii. (3) application of the law selected to the facts of the case. iv. (Castel, infra ,

chapter 3.1, p. 3-2.) 17 . Both parties agreed that the judge’s first task was to characterize the type of issue involved.

The judge made these comments in that context: a. [59] It is important in my view to appreciate that it is not the different forms of marriage which create the conflict, but the consequences of the form of marriage in Trinidad upon a prior Will, which are distinct from the consequences on a prior Will according to Nova Scotia law. b. [60] Since it is those consequences, if any, upon a Will, and because a Will determines succession to a testator’s Estate, the core issue in this case traditionally should be viewed as a “succession” issue and not a matrimonial law issue. c. [61] In light of that characterization, the issue would therefore properly be stated as a succession law conflict of laws issue, and those rules should be applied to the case at Bar. [Emphasis in Original] 18 .

Justice Rosinski acknowledged that the potential consequences of this characterization could be to have divergent “connecting factors”:

a. [66] However, characterising the issue as one of “succession” for conflict of laws purposes leads one to a split in theapplicable connecting factors: the lex situs will govern immovables and the law of the deceased’s domicile will govern movables. It istherefore preferable in my view to accept Dicey’s suggestion that whether a marriage revokes a will should be characterised as anindependent category of conflict of laws in its own right, with the same choice of law rule (as if it were a matrimonial law issue): Thatthe law of the Testator's domicile at the time of marriage (revocation) governs (the succession to the Estate'

s) movables andimmovables. Dicey para. 2-039. [Emphasis in Original] 19.

After reviewing the leading textual authorities (Dicey, Morris & Collins Conflict of Laws, 14th ed. (London, UK: Sweet &Maxwell, 2006) “Dicey”, and Castel & Walker, Canadian Conflict of Laws, 6th ed. (Markham, Ont.: LexisNexis, 2005 (updated to2010) “Castel”), Justice Rosinski concluded: a. [93] I find most appealing the opinion of Dicey that the effect of a marriage on a will should be governed by the law ofthe domicile of the testator/testatrix at the date of marriage, which should be considered “an independent conflict category in its ownright (with the same choice-of-law rule)” applying to movables and immovables – Dicey 14th ed. p. 50. 20.

Ms. Davies says that Justice Rosinski erred in characterizing the issue as one of succession law rather than as one ofmatrimonial law. Accordingly, the place of “matrimonial domicile” should govern succession. Traditionally, that would be the place ofthe husband’s domicile, because the wife took her husband’s domicile at the time of marriage irrespective of residency. Now spousesmay have separate domiciles and Dicey suggests that the effect of marriage on a Will could be determined by the law of the place towhich the parties and marriage have the closest connection.

But he goes on to argue that while one matrimonial property regime needs toapply to both spouses, the law relating to revocation of a Will, need not do so. In such a case, revocation should be governed by thetestator’s place of domicile at the time of marriage for both movables and immovables, (Dicey, para. 2-039). In effect, Ms. Davies wouldadopt Dicey’s suggestion of characterizing the issue as one of matrimonial law, without his caveat regarding revocation of Wills.

Sheargues that Dicey and Justice Rosinski wrongly ignored jurisprudence that favours “matrimonial domicile”: Re Martin: Loustalan v.Loustalan, [1900] P. 211 (C.A.); Davies v. Davies (1915), (AB KB), 8 W.W.R. 803, (Alta. S.C.); Re the Estate ofCovone (1989), 36 E.T.R. 114 (B.C.S.C.); Allison v. Allison, (B.C.S.C.); and Seifert v. Seifert (1914), (ON SC), 23 D.L.R. 440 (O.S.C.). 21. With respect, the problem with Ms. Davies’ argument here is that she uses the words “matrimonial domicile” and “individualdomicile” as if they were discrete categories.

For example, in paragraph 40 of her factum summarizing Canadian law, Ms. Daviessubmits: a. (

b) The effect of marriage on a Will should be determined as a matter of matrimonial law in the matrimonial domicile. 22. Similarly, paragraph 45, she submits: a. ...Why, then, as suggested by Dicey and by the learned trial judge, should it determined by the law of the individualdomicile of the testator or testatrix, rather than their common matrimonial domicile?... i. Here Ms. Davies posits a form of matrimonial domicile that is independent from personal domicile. But it is trite law thatan individual can only have one domicile: Castel, p. 4-3, citing the Supreme Court of Canada in Wadsworth v.

McCord, (1886), 1886CanLII 65 (SCC), 12 S.C.R. 466, aff’d sub nom. McMullen v. Wadsworth, (1889), 14 A.C. 631 (P.C.). Wadsworth also clarifies thatdetermining domicile is a question of fact. It is common ground that Dr. Davies was domiciled in Canada when he died in Trinidad. 23. To the extent that some of the authorities use the language of “matrimonial domicile”, it is used in a temporal rather than aconceptual sense, coincident with the domicile of the testator at the time of marriage.

For example, matrimonial domicile may describewhere both parties are domiciled at the time of their marriage, as opposed to some later time when their domicile changes. But it is notused in the conceptual sense of domicile independent of the personal domicile of the parties themselves. This is clear from an analysis ofthe authorities.

In Davies the court says that the law relating to the effect of the marriage upon a Will goes to the law of “matrimonialdomicile” and not to the law of the place where the property affected is situated (lex situs), but this was in an era when the husband’sdomicile determined his wife’s – and therefore the “matrimonial domicile”. Davies does not use the language of “matrimonial domicile”in the sense of a place independent of where one or both spouses are domiciled.

In Davies itself, the court determined that Alberta realproperty should be disposed of in accordance with a Montana Will because the deceased was domiciled in Montana at the time of themarriage. Under Montana law, the testator’s Will was not revoked because it was made in contemplation of marriage, but it would havebeen revoked under Alberta law. Because the testator was domiciled in Montana at the time of marriage, it did not revoke the MontanaWill. 24. This was also the case in Martin, when the law recognized the domicile of a wife as that of her husband.

The real contest inMartin was really one of domicile, rather than the effect of marriage upon a prior Will. Seifert is to the same effect: the court held that aQuebec Will was revoked by the testator’s later marriage because at the time of the marriage his place of domicile had become Ontarioand in Ontario, a marriage revoked a Will. 25. In Covone, the testatrix’s Quebec Will was found to be valid because at the time she married in Quebec, she was domiciledthere. Again, in Allison, the outcome was determined by the place of domicile, at the time of marriage.

Although the testator wasdomiciled in British Columbia at the time of his death, the court applied the law of “matrimonial domicile” which really meant thepersonal domicile of the testator at the time of his marriage. 26. To summarize on this point: in each of these cases the relevant domicile is that of the testator at the time of marriage. Matrimonial domicile is not used in a sense independent of the testator’s personal domicile, as Ms. Davies is arguing. Justice Rosinskimade no error of law in declining to accept Ms. Davies’ argument here. Once the appellant accepts – and the judge found – that Dr.

Davies’ place of domicile at the time of marriage was Nova Scotia, revocation of the Will fell to be determined under Nova Scotia law. 27 . The foregoing analysis and outcome is confirmed by the approach in more recent cases addressing “characterization” of the issue. In Raiffeisen Zentralbank Österreich AG v. An Feng Steel Co. Limited and Others , [2001] EWCA Civ 68, Q.B. 825, the English Court of Appeal put it this way: a. 26.

Both parties accept that, at common law, the identification of the appropriate law may be viewed as involving a three-stage process: (1) characterisation of the relevant issue; (2) selection of the rule of conflict of laws which lays down a connecting factor for that issue; and (3) identification of the system of law which is tied by that connecting factor to that issue: see Macmillan Inc. v. Bishopsgate Investment Trust Plc [1996] 1 WLR 387 , 391-2 per Staughton LJ.

The process falls to be undertaken in a broad internationalist spirit in accordance with the principles of conflict of laws of the forum, here England. b. 27. While it is convenient to identify this three-stage process, it does not follow that courts, at the first stage, can or should ignore the effect at the second stage of characterising an issue in a particular way. The overall aim is to identify the most appropriate law to govern a particular issue. ... [Emphasis added] c. 28. The three-stage process identified by Staughton LJ cannot therefore be pursued by taking each step in turn and in isolation.

As Auld LJ said in Macmillan , at page 407: d. “…. the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and defence . This requires a parallel exercise in classification of the relevant rule of law .

However, classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between competing legal systems, should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system . Nor should the issue be defined too narrowly so that it attracts a particular domestic rule under the lex fori which may not be applicable under the other system....” [Emphasis added] 28 .

Dicey (at 2-038) explains how the foregoing approach can work by using an example helpful in this case: a. Revocation of a will by the subsequent marriage of a testator will serve as an example to demonstrate this methodology. The English rule . . . is subject to certain exceptions, one of which is that if it appears from the will that, at the time when it was made, a testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage, it will not be revoked by his marriage to that person.

This suggests that the purpose of the rule is to give expression to the presumed intention of the testator : except where the will is made in contemplation of marriage, one might assume that the change of circumstances brought about by the marriage will be such that the average testator would want to make a different disposition of his property. Scottish and French law take a different view. To which testators is it appropriate to apply the English rule?

The best way of answering this question is to ask which testators would be most likely deliberately to have refrained from revoking their will because they thought it would automatically revoked by reason of the English rule. The answer must be: Those testators who, at the time of their marriage, thought that their affairs would be governed by English law. This suggests the law of domicile at the time of marriage, both for movables and immovables. [Emphasis added] 29 .

The choice of domicile at the time of marriage best avoids the eccentric succession difference between Trinidad and Nova Scotia arising from a marriage in extremis . Here the words of Lord Justice Auld in Macmillan quoted at paragraph 27 supra , merit partial repetition: a. “...classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between competing legal systems, should not be constrained by particular notions or distinctions . . . which may have no counterpart in the other's system. ... [Emphasis added] i.

In this case, accepting the validity of the Trinidadian marriage should not oblige this Court to recognize succession consequences unknown to Nova Scotia law and inimical to Dr. Davies’ presumed intention. Applying the law of Dr. Davies’ domicile following marriage is the appropriate “connecting” factor. 30 . This also accords with most of the textual and jurisprudential authority. For example, in Dicey at para. 27R-084: a.

Rule 150 - ...Subject to the Exception hereinafter mentioned, the question whether a Will has been revoked depends on the law of the testator’s domicile at the date of the alleged act of revocation. i. And at para. 27.08: b. ...This is not the case with regard to the question whether a marriage revokes a Will; therefore, the governing law for the latter remains that of the testator’s or testatrix’s domicile immediately after the marriage. This is the Rule which has been applied in all of the decided cases, but it now has a different effect in view of the fact that a wife can retain a separate domicile. i.

Similarly, Castel says (at least with respect to movables) that the effect of a marriage on a will is determined by the testator's domicile at the time of marriage, although the lex situs applies to immovables, (para. 27.4 (i), p. 27-11). 31 . In the result, I agree with the Chambers judge at para. 146: a. [146] In my view, there is sufficient authority and rationale to depart from the strict traditional rules. To the extent that an Estate of a testate contains both movables and immovables, the same rules should apply to movables as to immovables, and the question

of whether a marriage revokes a prior Will should be considered to be governed by the law of the domicile of the testator / testatrix at thetime of marriage. This accords with Dicey's analysis and conclusion that: This question should be regarded “as independent conflictcategory in its own right (with the same choice of law rule [i.e. The law of the testator / testatrix domicile at the time of marriagegoverns])” - para. 2-039 (14th ed.). [Emphasis in original] i. ISSUE 2 - Application of Law of Trinidad, as a Matter of Comity? 32. Ms.

Davies provides no authority for following the law of Trinidad simply as a matter of “comity”. Comity is certainly not aterm of art in the conflict of laws. Ms. Davies does not explain in which sense she offers it in argument. As a concept it is reallydescriptive of a theory or principle of international law. For example, in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, (SCC), [1994] 3 S.C.R. 1022, Justice La Forest speaking for the court described comity as respect for the actions ofother states, usually within their territorial limits and subject to breach of some overriding norm.

States “...will open their nationalforums further for the resolution of specific legal disputes arising in other jurisdictions consistent with the interests and internal values ofthe forum state.” (p. 1047). And in Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, Justice LeBel, speaking forthe court said: a. 16 Despite its importance, comity has proven a difficult concept to define in legal terms (see: J.-G.

Castel and J.Walker, Canadian Conflict of Laws (5th ed. (loose leaf)), at pp. 1.13-1.14). ... b. 17 Notwithstanding these limitations, comity is still considered a useful guiding principle when applying the rules ofprivate international law. For example, the notion of comity is invoked today as a guiding principle in the context of anti-suit injunctions,as noted by the editors of Dicey and Morris, supra, at p. 6: c. More recently, comity has been invoked to justify the caution which is required in the exercise of the power to grantinjunctions to restrain proceedings in foreign courts.

Comity requires that the English forum should have a sufficient interest in, orconnection with, the matter in question to justify the indirect interference with the foreign court which such an injunction entails.[Footnote omitted.] d. . . . e. 19 The notion of comity has retained its vitality in the jurisprudence of Canadian courts.

This Court has adopted thefollowing definition of the concept: f. . . . the recognition which one nation allows within its territory to the legislative, executive or judicial acts of anothernation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who areunder the protection of its laws. g. (Hilton v. Guyot, 159 U.S. 113 (1895), at p. 164) h. (See Spencer v. The Queen, (SCC), [1985] 2 S.C.R. 278, at p. 283, per Estey J.; Morguard Investments Ltd.v.

De Savoye, (SCC), [1990] 3 S.C.R. 1077, at p. 1096, per La Forest J.; and Holt Cargo Systems Inc. v. ABCContainerline N.V. (Trustees of), 2001 SCC 90, at para. 69, per Binnie J.) i. . . . j. 23 As the basic rules of private international law are codified in Quebec, courts must interpret those rules by firstexamining the specific wording of the provisions of the C.C.Q. and then inquiring whether or not their

interpretation is consistent withthe principles which underlie the rules. Given that the provisions of the C.C.Q. and of the C.C.P. do not refer directly to the principles ofcomity, order and fairness, and that the principles are at best, vaguely defined, it is important to emphasize that these principles are notbinding rules in themselves. Instead, they inspire the

interpretation of the various private international law rules and reinforce theinterconnected nature of the issues. ... [Emphasis added] 33. The Supreme Court’s resurrection of comity has not escaped criticism which argues the difficulty, if not irrelevance ofapplying “comity” to choice of law questions in a private setting: Peter Kincaid, Jensen v. Tolofsen and the Revolution in Tort Choice ofLaw (1995), 74 Can. Bar Rev. 537, at 541-45. 34. In any event, Justice La Forest’s generic statement in Tolofson is clearly not intended to assist courts in the specific choice ofa conflict of law principle.

Comity adds little to an analysis here of the effect of marriage on a will. Indeed, the argument of Ms. Daviesunder this issue is primarily directed to discussion of the policy choices between states within the Caribbean which recognize marriagesin extremis and concerns about the capacity of the dying party to make a fully informed choice. 35. In light of the conclusions under issue number one, it is not necessary to delve into the policy issues which Ms. Daviesraises. The real question is the characterization of the issue to be decided and the choice of law that resolves it.

A generic reference to“comity” cannot supply an alleged deficiency which is not resolved under the analysis of the first issue. ISSUE 3 - Extraneous Considerations 36. Ms. Davies objects to the trial judge’s analysis of the case in terms of “ex-wife” versus “present wife/widow” and “old”

family versus “new” family. She also raises concerns about the trial judge’s references to s. 19A of the Wills Act and to the Minutes of Settlement between Dr. Davies and Ms. Davies, as well as the history of Wills legislation generally. 37 . Resolution of the first issue renders these concerns moot. i. DISPOSITION 38 . The appeal is dismissed. I would accept the figure for costs suggested by appellant's counsel at the hearing and order costs of $4,000 plus disbursements payable by the appellant to the respondent. Bryson, J.A. Concurred in: Saunders, J.A. Farrar, J.A. NOVA SCOTIA COURT OF APPEAL

NOVA SCOTIA COURT OF APPEAL Citation: Davies v. Collins , 2011 NSCA 79 Date: 20110913 Docket: CA 342419 Registry: Halifax Between: Pamela Mary Davies Appellant v. Jennifer Jaroda Collins Respondent Revised judgment: The text of the original judgment has been corrected according to this erratum dated October 14, 2011. Judges: Saunders, Farrar and Bryson, JJ.A. Appeal Heard: June 14, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bryson, J.A., Saunders and Farrar, JJ.A. concurring. Counsel: Timothy C. Matthews, Q.C. and Gregory Clooney, for the appellant J.

Gordon Allen, for the respondent Erratum: [39] The last sentence in paragraph 30 of the original should be amended as follows: [30] ...Similarly, Castel says (at least with respect to movables) that the effect of a marriage on a will is determined by the testator's domicile at the time of marriage, although the lex situs applies to immovables, (para. 27.4 (i), p. 27-11).