Hunter v. Hunter, (2005) 269 Sask.R. 223 (CA)

• Judge: Gerwing, Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 20, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 269 Sask.R. 223 (CA);2005 SKCA 76

Hunter v. Hunter (2005), 269 Sask.R. 223 (CA);

    357 W.A.C. 223

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JL.034

Troy Donovan Hunter (appellant/respondent) v. Anna Louise Hunter (respondent/petitioner)

(No. 1115; 2005 SKCA 76)

Indexed As: Hunter v. Hunter

Saskatchewan Court of Appeal

Gerwing, Sherstobitoff and Jackson, JJ.A.

June 8, 2005.

Summary:

A wife commenced proceedings for a division of family property. The husband moved for an order under Queen's Bench Rule 99 declaring that the court lacked jurisdiction because, inter alia, he had never resided in Saskatchewan, nor had the parties cohabited or owned family property there.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported 261 Sask.R. 10, held that it had in personam jurisdiction over the husband. The husband appealed, contesting the court's jurisdiction to divide family property which existed outside of Saskatchewan and was composed solely of one asset, being the contents of the husband's bank account containing the proceeds from the wrongful death settlement of his daughter.

The Saskatchewan Court of Appeal allowed the appeal. Territorial competence with respect to the Family Property Act was to be determined by the rules set out in the Court Jurisdiction and Proceedings Transfer Act (Sask.) (CJPTA). Here the court lacked territorial competence because there was no real and substantial connection between Saskatchewan and the facts on which the proceeding against the husband was based (CJPTA, s. 4(e)). Rather the real and substantial connection was to British Columbia. The court opined that even if it had found a real and substantial connection to Saskatchewan, it would have declined jurisdiction in favour of British Columbia (CJPTA, s. 10).

Conflict of Laws - Topic 2064

Family law - Property - Forum conveniens - [See Family Law - Topic 866 ].

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - A wife commenced proceedings for a division of family property - The husband had never resided in Saskatchewan and had no property there - The husband moved for an order under Queen's Bench Rule 99 contesting the court's jurisdiction to divide family property which existed in British Columbia and was composed solely of one asset, being the contents of his bank account containing the proceeds from the wrongful death settlement of his daughter - The Saskatchewan Court of Appeal stated that territorial competence with respect to the Family Property Act was to be determined by the rules set out in the Court Jurisdiction and Proceedings Transfer Act (Sask.) (CJPTA) - Here the court lacked territorial competence because there was no real and substantial connection between Saskatchewan and the facts on which the proceeding against the husband was based (CJPTA, s. 4(e)) - Rather the real and substantial connection was to British Columbia - The court stated that even if it had found a real and substantial connection to Saskatchewan, it would have declined jurisdiction in favour of British Columbia (CJPTA, s. 10).

Family Law - Topic 889

Husband and wife - Marital property - Considerations in making distribution orders - Property out of province - [See Family Law - Topic 866 ].

Statutes Noticed:

Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1, sect. 3(2) [para. 15]; sect. 4(e) [para. 17]; sect. 10 [para. 21]; sect. 11 [para. 15].

Rules of Court (Sask.), Queen's Bench Rules, rule 99 [para. 3].

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Authors and Works Noticed:

Hansard - see Saskatchewan, Hansard, Legislative Assembly, Official Report of Debates.

Saskatchewan, Hansard, Legislative Assembly, Official Report of Debates (April 9, 1997), p. 728 [para. 13, footnote 14].

Saskatchewan, Hansard, Legislative Assembly, Official Report of Debates (April 17, 1997), p. 935 [para. 13, footnote 15].

Uniform Law Conference of Canada, Proceedings of the Seventy-Sixth Annual Meeting held at Charlottetown, Prince Edward Island August 1994 (1994), p. 141 [para. 12, footnote 13].

Uniform Law Conference of Canada, Uniform Acts of the Uniform Law Conference of Canada (Looseleaf), pp. 7C-12, 7C-13 [para. 15, footnote 16].

Counsel:

Gwen V.G. Vanstone, for Troy Donovan Hunter;

John Kwok, for Anna Louise Hunter.

This appeal was heard before Gerwing, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following decision on May 20, 2005.