IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: J.M.J. v. C.L. J., 2007 NSSC 242
Date: 20070905
Docket: 1201-058994
Registry: Halifax
Between:
J. M. J.
Respondent/Applicant
v.
C.L. J.
Petitioner/Respondent
LIBRARY HEADING
Judge: The Honourable Justice Moira C. Legere Sers
Heard: June 18 and 19, 2007, in Halifax, Nova Scotia
Subject: Motion to strike an application to overturn a divorce judgment and a corollary relief judgement. Motion to compel named persons to answer Interrogatories.
Summary: The parties divorced by Order dated March 28, 2006. The corollary relief judgment incorporated the terms of their separation agreement dated November 12, 2004, as it related to all matters of property, finances and support except for the custody and access provisions as determined by the court after a contested hearing on these specific issues. The mother filed an application to overturn the divorce judgment and the corollary relief judgment on the basis of allegations of fraud, lack of disclosure and duress, seeking in the interim a return to the custody and access provisions in the separation agreement.
Issue: Are the various aspects to the application made by the mother “obviously unsustainable” such that the father succeeds on his motion to strike?
Result: The application to reinstate custody and access as per the separation agreement are obviously unsustainable. Matters relating to a reinstatement or rehearing on the matters of custody and access are struck.
The corollary relief judgment simply incorporated the agreement relating to property and support. The discussion and disclosure of these issues took place in private negotiations between the parties. The court had no information regarding the nature and extent of these discussions. The court is restricted on this application to consider the motion to strike and not to determine the truth of the allegations. Therefore, the court cannot determine, at this stage, whether the allegations are sustainable. The burden is on the mother to prove these allegations to justify reopening the case. Until such time, the court adjourns the motion to compel named persons to answer interrogatories.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.