A.A.F. v. S.L.F.K. et al., (2009) 337 Sask.R. 160 (CA)

• Judge: Klebuc, C.J.S., Hunter and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 26, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 337 Sask.R. 160 (CA);2009 SKCA 101

A.A.F. v. S.L.F.K. (2009), 337 Sask.R. 160 (CA);

    464 W.A.C. 160

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. SE.034

T.P. (appellant/respondent) v. A.A.F. (respondent/petitioner) and S.L.F.K. (respondent/respondent)

(No. 1768; 2009 SKCA 101)

Indexed As: A.A.F. v. S.L.F.K. et al.

Saskatchewan Court of Appeal

Klebuc, C.J.S., Hunter and Ottenbreit, JJ.A.

June 26, 2009.

Summary:

A. and S. started dating in January 2005. Their daughter, H., was born in December 2005. A. and S. separated in March 2006. H. remained with A. A. and H. moved to Saskatchewan in September 2007. A. was having issues with her private life and she made arrangements with T. (S.'s mother) to take H. with her to Quebec for a one month period (end of September 2008). Subsquently, A. tried to contact T., without success. T. obtained two orders from the Quebec court (without notice to A.) that granted T. custody of H. A. filed a petition under the Children's Law Act, claiming custody of H.; for an order declaring that S. was H.'s father; for interim orders under the Act; and for an order that T. immediately turn over custody of H. to A. T. sought an order under ss. 15 and 16 of the Act declaring that Saskatchewan was not the appropriate jurisdiction to determine the issues in relation to H.

The Saskatchewan Court of Queen's Bench, in a decision reported at 333 Sask.R. 306, held that Saskatchewan had jurisdiction to deal with the petition and ordered that T. immediately deliver H. to A. All other issues were adjourned sine die. T. appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - A. and S. started dating in January 2005 - Their daughter, H., was born in December 2005 - A. and S. separated in March 2006 - H. remained with A. - A. and H. moved to Saskatchewan in September 2007 - A. was having issues with her private life and she made arrangements with T. (S.'s mother) to take H. with her to Quebec for a one month period (end of September 2008) - Subsequently, A. tried to contact T., without success - T. obtained two orders from the Quebec court (without notice to A.) that granted T. custody of H. - A. filed a petition under the Children's Law Act, seeking various relief with respect to custody of A. - T. sought an order under ss. 15 and 16 of the Act declaring that Saskatchewan was not the appropriate jurisdiction to determine the issues in relation to H. - The chambers judge held that Saskatchewan had jurisdiction to deal with the petition - H.'s habitual residence was Saskatchewan and T.'s act in withholding H. in Quebec without A.'s consent had not changed H.'s habitual residence - The Saskatchewan Court of Appeal dismissed T.'s appeal - While the chambers judge was entitled to assume jurisdiction based on H.'s habitual residence, given the existence of the two Quebec orders, s. 16 of the Act required her to address whether Quebec was a more appropriate jurisdiction to deal with the custody issue - An analysis under s. 16 of the Act had to be undertaken when there were existing court orders in other jurisdictions on the same matter or issue, or a party raised the issue of whether Saskatchewan was the most appropriate jurisdiction - Sections 15 and 16 of the Act affirmed the principle that a child's custodial arrangements should be dealt with in the child's home jurisdiction unless there was a very good reason for the courts of another jurisdiction to assert jurisdiction based on physical presence and balance of convenience - After weighing all the factors, it was clear that the most appropriate forum was Saskatchewan - It had the closest connection with the issue, the parties and the child.

Conflict of Laws - Topic 2306

Family law - Custody of and access to children - Forum conveniens - [See Conflict of Laws - Topic 2302 ].

Family Law - Topic 2122

Custody and access - Jurisdiction - Where custody or access order made in another jurisdiction or under Divorce Act - [See Conflict of Laws - Topic 2302 ].

Family Law - Topic 2123

Custody and access - Jurisdiction - Where child taken from one jurisdiction to another without other parent's consent - [See Conflict of Laws - Topic 2302 ].

Cases Noticed:

Sack v. Sack (1997), 159 Sask.R. 71 (Q.B. Fam. Div.), refd to. [para. 11, footnote 2].

M.M.K. v. K.R.M. (2003), 243 Sask.R. 209; 2003 SKQB 445 (Fam. Div.), refd to. [para. 11, footnote 2].

Anaka v. Yeo (2006), 282 Sask.R. 279; 2006 SKQB 201 (Fam. Div.), refd to. [para. 11, footnote 2].

Hunter v. Hunter (2005), 261 Sask.R. 10; 2005 SKQB 93 (Fam. Div.), refd to. [para. 17, footnote 3].

D.A.G. v. V.G.B. (2003), 229 Sask.R. 177; 2003 SKQB 63 (Fam. Div.), refd to. [para. 17, footnote 3].

D.A.G. v. V.G.B. (2005), 268 Sask.R. 283; 2005 SKQB 390 (Fam. Div.), refd to. [para. 17, footnote 3].

DeRoussy v. Boekemeyer (2001), 210 Sask.R. 319; 2001 SKQB 368 (Fam. Div.), refd to. [para. 17, footnote 3].

Godbout v. Curtis, [2009] Sask.R. Uned. 87; 2009 SKQB 175 (Fam. Div.), refd to. [para. 17, footnote 3].

T.K.M. v. J.A.Q., 2001 BCPC 68, refd to. [para. 17, footnote 3].

Schlotfeldt v. Schlotfeldt, [2008] B.C.T.C. Uned. 363; 53 R.F.L.(6th) 304; 2008 BCSC 678, refd to. [para. 17, footnote 3].

Hughes v. Alfano, [2006] B.C.T.C. 109; 2006 BCSC 109, refd to. [para. 17, footnote 3].

Dhillon v. Benipal, [2009] O.T.C. 736 (Sup. Ct.), refd to. [para. 17, footnote 3].

Nichols v. Nichols, [1995] O.J. No. 1980 (C.J. Prov. Div.), refd to. [para. 17, footnote 3].

Bradley v. Bradley (1994), 121 Nfld. & P.E.I.R. 74; 377 A.P.R. 74 (P.E.I.T.D.), refd to. [para. 17, footnote 3].

Duffy v. Duffy (1994), 125 Nfld. & P.E.I.R. 117; 389 A.P.R. 117 (P.E.I.T.D.), refd to. [para. 17, footnote 3].

Tech Cominco Metals Ltd. v. Lloyd's Underwriters - see Lombard General Insurance Co. of Canada v. Cominco Ltd. et al.

Lombard General Insurance Co. of Canada v. Cominco Ltd. et al. (2009), 384 N.R. 351; 266 B.C.A.C. 32; 449 W.A.C. 32; 303 D.L.R.(4th) 385; 2009 SCC 11, refd to. [para. 18, footnote 4].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 19, footnote 5].

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 20, footnote 6].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 21, footnote 7].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 21, footnote 8].

Antares Shipping Corp. v. Ship Capricorn et al., [1977] 2 S.C.R. 422; 7 N.R. 518, refd to. [para. 22, footnote 9].

HZPC Americas Corp. v. True North Seed Potato Co. et al. (2006), 254 Nfld. & P.E.I.R. 246; 764 A.P.R. 246; 2006 PESCAD 2, refd to. [para. 24, footnote 10].

Ward v. Canada (Attorney General) et al. (2007), 220 Man.R.(2d) 224; 407 W.A.C. 224; 286 D.L.R.(4th) 684; 2007 MBCA 123, refd to. [para. 24, footnote 11].

Phillips v. Avena - see Phillips et al. v. Phillips et al.

Phillips et al. v. Phillips et al. (2006), 384 A.R. 34; 367 W.A.C. 34; 2006 ABCA 19, refd to. [para. 24, footnote 12].

Englund et al. v. Pfizer Canada Inc. et al., [2006] 7 W.W.R. 128; 274 Sask.R. 172; 2006 SKQB 6, revd. (2007), 299 Sask.R. 298; 408 W.A.C. 298; 2007 SKCA 62, refd to. [para. 25, footnotes 14, 15].

Statutes Noticed:

Children's Law Act, S.S. 1997, c. C-8.2, sect. 16 [para. 12].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2005) (Looseleaf), vol. 1, para. 13.5 [para. 24, footnote 13].

Counsel:

Gerald Heinrichs, for the appellant;

Suzanne Jeanson, for A.F.;

No one appearing, for S.K.

This appeal was heard on June 26, 2009, by Klebuc, C.J.S., Hunter and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered orally on June 26, 2009, and written reasons were filed by Ottenbreit, J.A., on September 8, 2009.