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JURISDICTION - Domestic issues (between Canadian jurisdictions)

Monday, September 16, 2019 @ 9:25 AM  


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Appeal by the husband from a decision dismissing the husband’s application to have the wife’s Saskatchewan action transferred to Alberta. The parties were common law spouses. After the parties separated, the wife commenced an action in Saskatchewan, claiming an equal division of the family home and an unequal division of family property. The husband subsequently commenced an action in Alberta. The parties appeared to reside both in Alberta and Saskatchewan during their relationship, spending much time travelling and spending some time in Alberta and some time at their cottage in Saskatchewan. The Chambers judge found the wife lived in BC but was not certain where the appellant lived at the time of application. The Chambers judge reasoned in part that the Alberta Matrimonial Property Act only applied to married couples and that if the matter were to be transferred to Alberta, the husband would take the position that the wife would not be entitled to any family property.

HELD: Appeal dismissed. While the judge’s notion that the law that would be applied to adjudicate the parties’ dispute would be determined by the location where the dispute was heard was incorrect and the Chambers judge also wrongly engaged in a comparative analysis of fairness of the laws in force in Saskatchewan and Alberta for the purpose of assessing the relative substantive fairness of the applicable laws in those jurisdictions, this error was not determinative. Given the facts found by the Chambers judge, any reasonable and responsible decision-maker would have concluded that Saskatchewan was the forum conveniens. The husband tendered no evidence to support his request to sever the joint tenancy of the Saskatchewan cottage. In the absence of an evidentiary basis, and considering the standard of review, there was no reviewable error with respect to the Chambers judge’s decision not to sever the property.

Hampton v. Boychuk, [2019] S.J. No. 267, Saskatchewan Court of Appeal, R.K. Ottenbreit, P.A. Whitmore and R. Leurer JJ.A., July 26, 2019. Digest No. TLD-September162019001