Case Brief Wiki


This was an appeal by way of stated case for the determination of the jurisdiction of a provincial court judge to make an order respecting the occupation of a family residence under s. 7 of the Family Maintenance Act (now the Maintenance and Custody Act), the judge having ruled that the provision was ultra vires as it dealt with property matters which were constitutionally only able to be dealt with by s. 96 courts. The appellant was seeking an order for sole occupancy of the home.


  1. Is s. 7 of the Family Maintenance Act ultra vires the Province of Nova Scotia?


Appeal dismissed.


Clarke CJNS, for a unanimous court, held that they were bound by the decision of the Supreme Court in Reference re Section 6 of the Family Relations Act, S.B.C. 1978, Chapter 20 as amended which held that while occupancy was not the same as ownership, it was nevertheless a property interest and could only be dealt with by a superior court.


Property rights, including occupancy, must be dealt with in a court of superior jurisdiction.