A.G. v. L.S., (2006) 397 A.R. 296 (CA)

• Court: Court of Appeal (Alberta)
• Judge: Horner,Hunt,O'Brien
• Neutral Citation: 2006 ABCA 311
• Citation: (2006), 397 A.R. 296 (CA),2006 ABCA 311,397 AR 296,(2006), 397 AR 296 (CA),397 A.R. 296
• Date: 12 October 2006

A.G. v. L.S. (2006), 397 A.R. 296 (CA);

      384 W.A.C. 296

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. OC.099

A.G. (respondent/applicant/appellant by cross-appeal) v. L.S. (appellant/respondent/respondent by cross-appeal)

(0501-0250-AC; 2006 ABCA 311)

Indexed As: A.G. v. L.S.

Alberta Court of Appeal

Hunt and O'Brien, JJ.A., and Horner, J.(ad hoc)

October 12, 2006.

Summary:

The father had a relationship with the mother in Kazakhstan, which led to the birth of a child. The father returned to Alberta. The mother and child lived in Kazakhstan. The mother obtained a child support order from the Kazakhstan courts. She also filed a statement of claim in Alberta, seeking an order of maintenance. The parties were ordered to appear before a chambers judge to determine the issue of whether the Alberta courts had jurisdiction.

The Alberta Court of Queen's Bench, in a decision reported at [2005] A.R. Uned. 548; 2005 ABQB 462, held that the Alberta courts had jurisdiction and that the father had not met the onus to show that there was a more convenient forum. The court set child support at $150 per month until further review. The father appealed. The mother cross-appealed, arguing that the court should not have set the quantum of child support.

The Alberta Court of Appeal dismissed the father's appeal on the condition that no further steps could be taken in the action until proof was filed in the Court of Queen's Bench that the Kazakhstan support order had been vacated. The court allowed the mother's cross-appeal, and vacated the order setting the quantum of child support.

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 603

Jurisdiction - General principles - Jurisdiction simpliciter - The father lived in Alberta - The mother and child lived in Kazakhstan - The mother obtained a child support order from the Kazakhstan courts - She also filed a statement of claim in Alberta, seeking an order of maintenance - The Alberta Court of Appeal affirmed a chambers judge's decision that the Alberta courts had jurisdiction to make a support order in this case - An application for child support was an action in personam - In personam jurisdiction simpliciter could be exercised based on a defendant's submission by agreement or attornment, his ordinary residence in the jurisdiction, or a real and substantial connection between the subject matter of the action and the forum - Jurisdiction simpliciter was present here - There was also subject matter jurisdiction based on the Parentage and Maintenance Act, the statute upon which the mother relied - It did not contain a residency requirement, which suggested that the legislature intended the Alberta courts to be able to make child support orders under the Act if a putative father lived in the jurisdiction, even when the mother and child lived elsewhere - The chambers judge's conclusion that the father had not shown that there was a more convenient forum was also not unreasonable - See paragraphs 8 to 20.

Conflict of Laws - Topic 604

Jurisdiction - General principles - Actions in personam - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 2222

Family law - Maintenance - Jurisdiction of court - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 2223

Family law - Maintenance - Forum conveniens - [See Conflict of Laws - Topic 603 ].

Family Law - Topic 2241

Maintenance of wives and children - Jurisdiction - General - [See Conflict of Laws - Topic 603 ].

Family Law - Topic 2347

Maintenance of wives and children - Maintenance of children - Jurisdiction - [See Conflict of Laws - Topic 603 ].

Family Law - Topic 2442

Maintenance of wives and children - Evidence - Requirement of - The father lived in Alberta - The mother and child lived in Kazakhstan - The mother filed a statement of claim in Alberta, seeking an order of maintenance - The parties were ordered to appear before a chambers judge to determine the issue of whether the Alberta courts had jurisdiction - The chambers judge held that the Alberta courts had jurisdiction and he set child support at $150 per month until further review - The Alberta Court of Appeal set aside the order as to quantum - The chambers judge had invited the parties to make submissions on the issue of jurisdiction and he told them that he would not determine quantum without hearing evidence - It was inappropriate for him to deal with quantum as it deprived the parties of the promised opportunity to make submissions on quantum and to produce evidence to meet the requirements of s. 16(4) of the Parentage and Maintenance Act (which required that the amount of maintenance be set to enable the child to be maintained at a reasonable standard of living having regard to the financial resources of the parents) - See paragraphs 21 to 25.

Cases Noticed:

Kasprzyk v. Burks, [2005] O.T.C. 67; 15 R.F.L.(6th) 221; 136 A.C.W.S.(3d) 1097 (Sup. Ct.), refd to. [para. 15].

Prichici v. Prichici, [2005] O.T.C. 369; 14 R.F.L.(6th) 425; 139 A.C.W.S.(3d) 281 (Sup. Ct.), refd to. [para. 15].

Persaud v. Ejylesson (1990), 108 A.R. 125 (Prov. Ct.), refd to. [para. 15].

Welsh v. Welsh, [1975] 1 W.W.R. 369 (B.C.S.C.), refd to. [para. 16].

Georgetown Wire Co. v. Gemini Structural Systems Inc. et al. (1997), 200 A.R. 285; 146 W.A.C. 285 (C.A.), refd to. [para. 17].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (6th Ed. 2005), p. 11-1 [para. 15].

Counsel:

D.P. Castle, for the appellant;

H.N. Hanson, for the respondent.

This appeal and cross-appeal were heard on October 12, 2006, before Hunt and O'Brien, JJ.A., and Horner, J.(ad hoc) of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered orally by Hunt, J.A., on October 12, 2006, and was filed on October 24, 2006.