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MARITAL PROPERTY - Practice and procedure - Courts - Jurisdiction

Monday, May 06, 2019 @ 9:12 AM  

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Application by the respondent Hill to add a third-party negligence claim to an existing family law proceeding. In the family law proceeding, Goyeche claimed an entitlement to a division of matrimonial property and spousal support. Hill contested the family law proceeding on the basis that his former solicitor, Smyth, prepared a marriage agreement which precluded Goyeche from claiming his pension or spousal support. However, Hill subsequently determined that the marriage agreement was unenforceable as his signature and Goyeche’s signature were not witnessed. Hill wanted to commence a negligence claim against Smyth and the law firm partnership, alleging breach of a duty to ensure that the marriage agreement was enforceable. Hill successfully sought an order transferring the family law proceeding to the General Division to seek leave to issue a third-party claim against Smyth. The intended third parties took the position that the General Division had no jurisdiction over the transferred family law proceeding in this instance.

HELD: Application dismissed. The Family Division had no jurisdiction to adjudicate Hill’s tort claim against his lawyer. The proceeding commenced by Goyeche in the Family Division was a family law proceeding. The transfer of the family law proceeding to the General Division under section 43.10(1) of the Judicature Act did not change the essential character of the proceeding. Just as the Family Division did not have jurisdiction to adjudicate Hill’s negligence claim against his lawyer, in the transferred family law proceeding, the General Division likewise had no jurisdiction to do so. Even if that were not the case, the Court would nevertheless have declined to grant the application. The issues at play in the family law proceeding and the third-party negligence claim were not common issues such that a joint trial was convenient.

Goyeche v. Hill, [2019] N.J. No. 110, Newfoundland and Labrador Supreme Court - General Division, D.H. Burrage J., April 1, 2019. Digest No. TLD-May62019002