Adderson v. Adderson, (1987) 77 A.R. 256 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: March 30, 1987
• Citations: (1987), 77 A.R. 256 (CA)

Adderson v. Adderson (1987), 77 A.R. 256 (CA)

MLB headnote and full text

Patrick Wayne Adderson v. Karen Elizabeth Adderson

(Appeal No. 18450)

Indexed As: Adderson v. Adderson

Alberta Court of Appeal

Laycraft, C.J.A., McClung, J.A., and Power, J. (ad hoc)

March 30, 1987.

Summary:

A husband and wife were married in Alberta in 1970. They moved to Hawaii to live in 1984. The wife obtained employment, but the husband did not. The husband never settled in Hawaii; he returned to Alberta, went back to Hawaii, then to California and finally ended up in Oregon. The wife obtained a divorce in Hawaii and applied in Alberta for a division of matrimonial property. On a preliminary issue, the Alberta Court of Queen's Bench held that it had jurisdiction under s. 3(1) of the Matrimonial Property Act, because Alberta was the "last joint habitual residence". The husband appealed.

The Alberta Court of Appeal dismissed the appeal.

Family Law - Topic 944

Husband and wife - Marital property - Distribution orders - Practice - Persons who may apply - A wife obtained a divorce in Hawaii after the spouses left Alberta in 1984 - The wife applied in Alberta for a division of matrimonial property - Section 3(1) of the Matrimonial Property Act gave the Alberta courts jurisdiction if Alberta was the spouses' "last joint habitual residence" - The Alberta Court of Appeal stated that "the term 'habitual residence' refers to the quality of residence. Duration may be a factor depending on the circumstances. It requires an animus less than that required for domicile; it is a midpoint between domicile and residence, importing somewhat more durable ties than the latter term. In my view it is not desirable, indeed it is not possible, to enter into any game of numbers on the duration required. All of the factors showing greater or less present intention of permanence must be weighed" - See paragraph 18.

Family Law - Topic 944

Husband and wife - Marital property - Distribution orders - Practice - Persons who may apply - A husband and wife married in Alberta in 1970 - They moved to Hawaii in 1984 - The wife obtained employment, but the husband did not - The husband never settled in Hawaii - He returned to Alberta, went back to Hawaii, then to California and finally ended up in Oregon - The wife obtained a divorce in Hawaii and applied in Alberta for a division of matrimonial property - The Alberta Court of Appeal affirmed that Alberta courts had jurisdiction to entertain the application under s. 3(1) of the Matrimonial Property Act, because Alberta was the spouses' "last joint habitual residence".

Words and Phrases

Last joint habitual residence - The Alberta Court of Appeal defined the phrase "last joint habitual residence", as found in s. 3(1) of the Matrimonial Property Act, R.S.A. 1980, c. M-9.

Cases Noticed:

Cruse v. Chittum, [1974] 2 All E.R. 940, consd. [para. 9].

R. v. Barnet London Borough Council, [1983] 2 A.C. 309, consd. [para. 13].

Wolch v. Wolch (1980), 19 R.F.L.(2d) 307, consd. [para. 15].

Baker v. Baker (1985), 38 Man.R.(2d) 39; 49 R.F.L.(2d) 216 (C.A.), consd. [para. 15].

Re Banff Election: Brett v. Sifton (1899), 4 Terr. L.R. 140, dist. [para. 17].

Statutes Noticed:

Matrimonial Property Act, R.S.A. 1980, c. M-9, sect. 3(1) [para. 6].

Authors and Works Noticed:

Dicey and Morris, Conflict of Laws (10th Ed.), pp. 144 [para. 8]; 145 [para. 10].

Chesire and North, Private International Law (10th Ed.), p. 187 [para. 11].

McLeod, The Conflict of Laws (1983), p. 180 [para. 12].

Graveson, Conflict of Laws (7th Ed.), p. 194 [para. 12].

Castel, Canadian Conflicts of Law (2nd Ed.), pp. 100-101 [para. 12].

Counsel:

L.E. Bowes, for Patrick Wayne Adderson;

Judy Boyes, for Karen Elizabeth Adderson.

This appeal was heard before Laycraft, C.J.A., McClung, J.A., and Power, J. (ad hoc), of the Alberta Court of Appeal.

On March 30, 1987, Laycraft, C.J.A., delivered the following judgment for the Court of Appeal.