J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Walker and Walker, 2003 NSSF002 Date: 20021210 Docket: SH 1201-55269 SFHD-008382 Registry: Halifax Between: Virginia TheresaWalker and Russell Edward Walker Respondent Judge: The Honourable Gordon A. Tidman Heard: December 10, 2002, in Halifax, Nova Scotia Written Decision: January 16, 2003 Counsel: Virginia T. Walker (The Applicant, in Person) Judith Ann Schoen, for the Respondent [1] This is an application to determine whether this court has jurisdiction to vary consent order of the Ontario Court (General Division). Background: [2] On June 13, 1994 the Ontario Court (General Division) granted judgment by consent which incorporated by reference an agreement made between the separated married couple of Virginia and Russell Walker. Part one of the Order incorporates the following term which was agreed to by the parties: That the defendant, Russell Edward Walker, shall pay to the plaintiff, Virginia Theresa Walker, on or before April 9th, 1994 to (sic) [the] sum of THIRTY SEVEN THOUSAND DOLLARS ($37,000.00) in full and final satisfaction of all claims with respect to property, division of property and an equalization payment. [3] At the time of the granting of the Order, the Walkers resided in Ontario, thus the Ontario court had jurisdiction to grant the Order. Mrs. Walker now resides in Nova Scotia where she has commenced against Mr. Walker an action for divorce. In the action Mrs. Walker also seeks a division of assets under the Matrimonial Property Act. The asset she seeks to have divided is the interest of Mr. Walker in federal government pension. [4] Since the Ontario court order purported to finalize a property division between the parties, Mrs. Walker, who claims a portion of Mr. Walker’s pension entitlement, seeks to set aside the agreement she made with Mr. Walker, which was incorporated into the Ontario court order. She does so on the grounds that she was not aware of her entitlement to share in her husband’s pension benefits at the time she entered into the agreement. Her claim is based on the equitable grounds of fraud, duress and unconscionability. [5] The issue the parties present to the court is whether this court has jurisdiction to hear Mrs. Walker’s claim to set aside the agreement. The real question embodied in that issue is whether this court has jurisdiction to set aside or vary consent order of the Ontario court. Deliberations: [6] First of all, as agreed by the parties, there is no question that Mrs. Walker is entitled to commence the divorce action in Nova Scotia. She is also in the same action entitled to seek division of assets under the provisions of the Nova Scotia Matrimonial Property Act. [7] Section 22(1) of the Nova Scotia Matrimonial Property Act provides: Conflict of laws 22 (1) The division of matrimonial assets and the ownership of movable property as between spouses, wherever situated, are governed by the law of the place where both spouses had their last common habitual residence or, where there is no such residence, by the law of the Province. [8] Therefore, although the Nova Scotia court has jurisdiction to hear the property division application, the court in determining the division must in doing so, apply the law of the last common habitual residence of the parties. Since it would appear that Mr. And Mrs. Walker had their last common habitual residence in Ontario, the division of matrimonial assets would be governed by Ontario law. [9] Section 29 of the Nova Scotia Matrimonial Property Act provides: Harsh or fraudulent contract or agreement 29 Upon an application by party to marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. [10] Under the provisions of s.29 of the Act Mrs. Walker is also entitled to seek to vary the terms of the separation agreement entered into between her and her husband upon the equitable grounds as set out in the Act. But does the Nova Scotia court have jurisdiction to vary the terms of separation agreement embodied within the terms of consent order? [11] Ms. Schoen, on behalf of Mr. Walker, submits that the Matrimonial Property Act while, by s.29, providing the court with jurisdiction to vary marriage contract or separation agreement on grounds of fraud, harshness or unconscionability, does not provide the court with jurisdiction to vary court order. Ms. Schoen submits further that there have been findings by the Family Division of this court that it has no jurisdiction to vary an order incorporating such an agreement. Ms. Schoen provides no citations or case names for her submission. [12] The Nova Scotia Court of Appeal in Bank of N.S. v. Golden Forest Holdings (1990), 1990 CanLII 2489 (NS CA), 98 N.S.R.(2d) 429, dealt with consent orders and approved the following passage from Citel v. Rothbart (1987), 19 C.P.C. (2d) 48 (Ont. S.C.): consent order is contract and must be treated as such. Such an order can only be set aside or varied by subsequent consent, or upon grounds of common mistake, misrepresentation or fraud, or on any other ground which would invalidate contract. [13] Based on that passage, it seems to me that the court has jurisdiction to vary the consent order upon the grounds as alleged by Mrs. Walker, notwithstanding that s.29 of the Matrimonial Property Act does not specifically provide the court with jurisdiction. [14] Additionally, as set out by Mrs. Walker in her brief, the English Court of Chancery in Wilding v. Sanderson, [1897] Ch.C.A., had previously determined that that court had jurisdiction to vary consent order. The court in that case stated: ..a consent order based on and intended to carry out an agreement come to between the parties, ought to be treated as an agreement which could be properly set aside on any ground on which an agreement in the terms of the order could be set aside. [15] Section 41(a) of the Judicature Act R.S.N.S. 1989 c.240 provides: If plaintiff claims to be entitled to any equitable...right, or to relief upon any equitable ground against any deed, instrument or contract...the court shall give to the plaintiff the same relief as would have been given by the court of the Equity Judge or the High Court of Chancery. [16] It follows then that Mrs. Walker by virtue of the Judicature Act is entitled to the same relief the English Court of Chancery accorded to the plaintiff in Welding v. Sanderson (supra). It then seems clear, and so find, that this court has jurisdiction to vary consent order. [17] The only question remaining is whether this court has jurisdiction to vary an order of the Ontario court. [18] There is no question that this court has jurisdiction to hear Mrs. Walker’s claim for divorce and her claim for division of property under the Matrimonial Property Act. precondition to hearing her claim for division of property requires finding as to the validity of the contract embodied in the consent order. [19] In my view it follows that the court must also have jurisdiction to deal with the precondition. In reaching that conclusion, have also considered that the Divorce Act has provided for jurisdictional difficulties arising because of the increased mobility of the population in Canada and no doubt it was with that same concern in mind that resident of the province may commence an action for divorce in this province and incorporate therein claim under the Matrimonial Property Act regardless of where the applicant’s spouse resides, where the married parties were residing at the time separation agreement was entered into or where the parties had their last common habitual residence. In the latter case, however, as provided by s.22(1) of the Nova Scotia Matrimonial Property Act the law of Ontario would govern the division of the parties’ assets. In this case the asset is personal; i.e., federal pension entitlement. Decision On Issue: [20] Under the circumstances as set out, find that the Nova Scotia court has jurisdiction to vary the Consent Order of the Ontario court. Forum Conveniens Issue: [21] Ms. Schoen argues that even if this court finds that it has jurisdiction to deal with the matter, the Ontario court would also have jurisdiction to vary the terms of its own order. would agree with that submission. Ms. Schoen submits that since both courts have jurisdiction, under the circumstances here, the Ontario court is the more convenient forum for hearing the matter. Mrs. Walker disagrees and submits that this court should be determined as being the forum conveniens. [22] The court declines to make finding on this issue on the basis that no factual body of evidence has been submitted with the application upon which the court could make such finding. No evidence relating to the issue was adduced at the hearing and no affidavits were filed by the parties setting out the facts relied upon for such finding. Tidman, J. Halifax, Nova Scotia
The applicant commenced a divorce action against her husband incorporating a claim for a division of assets under the Matrimonial Property Act. The Ontario Court had previously granted a consent order incorporating an agreement between the parties purporting to divide matrimonial assets. The applicant sought to set aside the agreement on the grounds of unconscionability, harshness or fraud. The court has jurisdiction to vary the agreement on the grounds alleged notwithstanding that the Act does not specifically provide the court with jurisdiction .