Court of Appeal for Ontario
Judges: Cronk, Pepall and Tulloch JJ.A.
Between:
Peggy Lynn Syrette
Applicant (Respondent in Appeal)
and
Bradley Stephen Syrette
Respondent (Appellant)
Counsel:
T. Frederick Baxter, for the appellant
Peggy Lynn Syrette, in person
Heard and released orally: October 11, 2012
On appeal from the order of Justice E. Koke of the Superior Court of Justice, dated October 14, 2011.
Endorsement
1During the course of oral argument before this court, the appellant husband’s challenge to the application judge’s decision in this matrimonial case was both clarified and narrowed. As argued, the appellant seeks: (1) declarations that (a) the application judge erred in declaring that each party has an equal interest in the former matrimonial home; (b) the appellant is the sole owner of the home; and (c) the appellant is entitled to exclusive possession of the lands on which the home is situate pursuant to a Certificate of Possession granted to him by the Band Council in 1992; and (2) an “in personam” order requiring the respondent wife to vacate the home. The appellant advised the court, through counsel, that if he is unsuccessful in obtaining this relief, he is not pursuing the other relief outlined in his factum.
2In our view, given the narrowed focus of the relief sought by the appellant, the disposition of this appeal is straightforward.
3The lands on which the matrimonial home is situate are located on an Indian reserve in the Sault Ste. Marie area. The application judge made no finding and the appellant, although invited to do so, could point to no evidence establishing that the home is of a type rendering it readily severable from the lands on which it is located.
4On the authority of the Supreme Court of Canada’s decision in Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285 and its progeny, neither this court nor the application judge in this case have authority to make any order concerning possession, ownership or disposition of property on a reserve that, like the property at issue here, is governed by the provisions of the Indian Act, S.C. c. I-5.
5Accordingly, to the extent that paragraph 7 of the application judge’s order dated October 14, 2011 is intended to address ownership or possession of the former matrimonial home, this part of his order cannot stand. For the same reasons, all other aspects of the relief sought by the appellant must be denied.
6In the circumstances, therefore, paragraph seven of the application judge’s order dated October 14, 2011 is varied to read, consistent with his finding in the second sentence of paragraph 40 of his reasons, as follows: “Each party has an equal interest in the matrimonial home at 483 Gran Street, Sault Ste. Marie, for equalization purposes.”
7In the result, the appeal is allowed in part by varying paragraph seven of the application judge’s order dated October 14, 2011 to accord with these reasons. In all other respects, his order remains in full force and effect. We make no determination of any kind regarding the parties’ rights of ownership or possession, if any, to the lands and home in question.
8No costs by either party having been sought and given the results of this appeal, this is not an appropriate case for any award of the costs of this appeal.
“E.A. Cronk J.A.”
“Sarah Pepall J.A.”
“M. Tulloch J.A.”
