IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Wescott v. Dumont , 2006 NSSC 335
Date: 20061025
Docket: SN 260023
Registry: Sydney
Between:
Marilyn Wescott
v.
Jean-Yves Dumont and K. Paul McPhee Insurance Limited, a body corporate
Judge: The Honourable Justice Simon J. MacDonald
Decision: October 25, 2006
Counsel: Hugh R. McLeod, for Marilyn Wescott
Harvey M. McPhee, for Jean Yves Dumont
Roderick (Roy) H. Rogers for K Paul Insurance Limited, a body corporate.
By the Court:
[1] This matter arose out of an Originating Notice (Action) between the plaintiff, Marilyn Westcott, (Wescott) and the defendants, Jean Yves Dumont (Dumont) and Co-operators General Insurance Company, carrying on business under the firm name and style of the Co-operators (Cooperators) dated the 14th day of December, 2005. It concerned property at 1457 Donkin-Morien Highway in Port Morien, Nova Scotia. (The property)
[2] It was subsequently ascertained that the Co-operators was not a proper defendant and the defendant K. Paul MacPhee Insurance Limited, a body corporate (MacPhee) was substituted therefore.
[3] The property suffered an insurable loss from a fire.
[4] The Insurance Policy covering said property was purchased from McPhee by Wescott. However, the policy was issued in the name of both Wescott and Dumont.
[5] Wescott claims she should be the only person named on the policy.
[6] On January 9, 2006 the Plaintiff, Wescott obtained Interlocutory Judgment against Dumont. Wescott’s counsel, Hugh MacLeod then made an Interlocutory Notice, Application Inter-Parties on the 5th day of April, 2006 for an Order that the defendant, Dumont has no insurable interest in the property and further the Defendant, Dumont has no interest in Policy No. 5840036, pursuant to Civil Procedure Rules 12.01(2)(b); 12.01(3); 12.02; 12.03(1)(2)(a) and 12.03(1)(2)(b).
[7] Prior to the application being heard, Harvey MacPhee, counsel representing Dumont brought an Interlocutory Notice (Application Inter-Parties) dated June 8th, 2006 seeking:
1. An order dispensing with the timing of service requirement for this notice;
2. An order setting aside the January 9, 2005 Interlocutory Judgment against the defendant Dumont;
3. An order that the claim herein be dismissed and the matter of the defendant Dumont’s interest in the property , or any insurance proceeds realized with respect to this property, be transferred to the Supreme Court of Nova Scotia, Family Division, court file number 41933 involving Dumont and Wescott.
[8] Before the hearing of Dumont’s application, the Court received correspondence from Mr. Roderick (Roy) H. Rogers concerning to Mr. MacLeod’s Application for a Declaration. In a letter, Mr. Rogers advised the Court his client took no position with respect to the application as in no way did it represent any concession or acknowledgment of any wrong doing on the part of MacPhee or any of it’s employees or agents.
[9] Mr. MacLeod and Mr. MacPhee appeared before me on June 26, 2006 and the Court heard arguments. At the conclusion of the hearing the Court made a decision on all matters with the exception of Dumont’s application to have the matter of his interest in the property or any insurance proceeds realized with respect to the property transferred to the Family Division per paragraph 7 (3) herein.
[10] The Family Division file referred to in paragraph 7 (3) is an action pending between Wescott and Dumont relating to custody and access, child support, and other issues relating to their children. Mr. MacPhee, who had just been retained, advised the Court it was his intention to add to the application a division of property.
[11] He alleges there was a common law arrangement between Dumont and Wescott. He claims Dumont is entitled to a division of those assets in law. He stated this would include one half interest in the family property and as well any insurance proceeds which would be realized from the fire damage to the property.
[12] Mr. MacLeod advised the Court Mr. Rogers would be opposed to this issue being referred to Family Division. As a result of Mr. MacLeod’s comments and a review of Mr. Roger’s letter, the Court adjourned the matter. Mr. MacLeod was to write Mr. Rogers and advise him the Court was considering transferring the matter to the Family Division and to obtain his views in writing.
[13] Contrary to Mr. MacLeod’s remarks in Court, Mr. Rogers wrote to the Court on July 13, 2006 and wanted the issue of dispute between Wescott and Dumont transferred and heard as part of the Family Division action.
[14] Subsequent to Mr. Roger’s letter, Mr. MacLeod and Mr. MacPhee both responded. Mr. MacLeod was adamant the matter ought not to go there and referrred the Court to the case of Walsh v Bona 2000 NSCA 53. He did not provide a copy of the case but summarized it’s position in his correspondence of July 17, 2006. In each case the facts are different as I find them to be here and in the Walsh case.
[15] In essence Mr. MacLeod argues there is no precedent under Civil Procedure Rule 70.03(1)(k) to allow the relief Mr. MacPhee asks on behalf of Dumont. He says it is without precedent and the matter ought to stay in the Nova Scotia Supreme Court, General Division.
[16] Mr. MacPhee argued before the Court this is primarily a matrimonial issue to be argued in the Family Division. He argues that Dumont’s claim from a common law cohabitation arrangement would be best determined in that Court. He stated further that Rule 70.03(1)(k) allows that to happen.
[17] Civil Procedure Rule 70 dealing with family proceedings states as follows in Rule 70.03(1):
70.03(1) This rule applies to proceedings in the Family Division respecting:
(k) relief by way of the Partition Act constructive or resulting trust or a monetary award as compensation for unjust enrichment between person who have co-habitated.
[18] The Family Division of the Supreme Court of Nova Scotia was set up as a specialized court to deal with family matters and relations. It is this court’s opinion having heard the parties the fundamental issues here involve family matters between Wescott and Dumont.
[19] I am satisified Rule 70.03(1)(k) provides express jurisdiction for the Family Division to deal with the type of relationship that may or may not have existed between Wescott and Dumont during their life together. Dumont claims in his affidavit he has lived and formed a common law relationship with Wescott and therefore is entitled to relief under rule 70.03(1)(k). Wescott, on the other hand, denies there is any claim nor any property interest that Dumont might have as a result of their common law relationship.
[20] Those are matters properly in the realm of the specialized Family Division. The determination as to whether or not there was a common law relationship and what, if any, assets and their division should properly be heard by that court.
[21] The court has concern when one considers all the material on file, that if the action proceeds in this Court, it is conceivable Dumont could become involved in litigation in which he apparently is not a party and according to Wescott has no interest.
[22] As I weigh the interests of the parties, consider the law and remarks of counsel, I conclude and order the matter of Dumont’s interest in the property or any insurance proceeds realized with respect to the property be transferred to the Family Division to form part of the existing proceeding Family Division Court file number 41933.
[23] I further order Dumont file the necessary documentation for determination of this issue no later than Thursday, November 30th, 2006. I put this date in because I appreciate Mr. MacLeod’s argument about his continuous effort to try and get this matter resolved and get some kind of response from Dumont.
[24] It is my view the matter ought to move forward without delay.
[25] I further order in the alternative, if Dumont does not file the necessary documentation on or before the November 30, 2006 date that Mr. MacLeod be at liberty to apply to the Court to have the action dismissed. It would then become obvious, I suggest, as Mr. MacLeod argues Dumont is simply attempting to drag this matter out and not really interested in pursuing his claim.
[26] I further conclude it is possible as well that any determination of the issues between Wescott and Dumont could render moot the claim by Wescott against MacPhee.
[27] Finally I would order, as suggested by Mr. Rogers, that Wescott’s claim against MacPhee be placed on hold pending a resolution of the Family Division matters referred to above.
[28] Since Mr. MacPhee was successful on this portion of the application I would appreciate him drafting the order, circulating same and having it returned to my office no later than Friday, November the 10th, 2006.
[29] The matter of costs were already dealt with at the conclusion of the hearing and same stands.
J.