Hunter v. Hunter, 2005 SKQB 93

• Judge: M.-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 18, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKQB 93;(2005), 261 Sask.R. 10 (FD)

Hunter v. Hunter (2005), 261 Sask.R. 10 (FD)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. FE.038

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

(2004 J.C.S. DIV. No. 362; 2005 SKQB 93)

Indexed As: Hunter v. Hunter

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

M.-E. Wright, J.

February 18, 2005.

Summary:

A wife commenced proceedings for a divorce, custody, child support and a division of family property. The husband moved for an order declaring that the court lacked jurisdiction because, inter alia, the husband had never resided in Saskatchewan, nor had the parties cohabited or owned family property there. The husband also sought to have an ex parte order restraining him from dissipating any family property set aside.

The Saskatchewan Court of Queen's Bench, Family Law Division, held that it had in personam jurisdiction over the husband. Further, to the extent that the ex parte order bound only him and did not affect any right, title or interest in real property, it was effective and should not be set aside.

Conflict of Laws - Topic 2064

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

Family Law - Topic 861

Husband and wife - Marital property - Distribution orders - General - The Saskatchewan Court of Queen's Bench, Family Law Division, referred to a discussion of the distinction between most jurisdictions, including Saskatchewan, where family property legislation was a debtor-creditor statute that divided value, as opposed to jurisdictions such as British Columbia, where the legislation created property rights - See paragraph 21.

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - A husband argued that the court lacked jurisdiction respecting his wife's claim for a distribution of family property under the Family Property Act because he had never resided in Saskatchewan - Also any assets owned by him were situated in British Columbia, including a home located on St. Mary's Reserve, the proceeds of the law-suit initiated following the death of his daughter, and assets acquired with those proceeds - The Saskatchewan Court of Queen's Bench, Family Law Division, held that it had the requisite jurisdiction to entertain the wife's claim, and, in determining her equalization entitlement, could take into account the value of both moveables and immovables situated outside this province - The fact that the family home was situated on an Indian reserve did not alter this conclusion - The court stated that while it had no jurisdiction to make any order affecting the right, title or interest in a foreign immovable, it was not precluded from making an in personam order in the form of a monetary judgment that distributed the value of the family property owned by the spouses that was subject to distribution - Finally, based on conflict of law principles, this was not a case where the wife's choice of forum should be displaced - See paragraphs 19 to 32.

Family Law - Topic 890.5

Husband and wife - Marital property - Distribution orders - Considerations - Dissipation or disposal of assets - A wife commenced proceedings for a divorce, custody, child support and a division of family property - The husband sought to have an ex parte order restraining him from dissipating any family property set aside - The husband did not reside in Saskatchewan and did not have property there - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that it had in personam jurisdiction over the husband - To the extent that the ex parte order bound only him and did not affect any right, title or interest in real property, it was effective and should not be set aside - The court noted that the asset in British Columbia with the greatest value and which the wife asserted was family property, was the bank account where the husband had deposited the proceeds from a wrongful death law-suit - If she was successful in obtaining a judgment in Saskatchewan recognizing her entitlement to a distributive share of family property, that asset had to be preserved to ensure that her claim was not defeated as she would be unable to enforce the judgment against the husband's property on St. Mary's Reserve - See paragraphs 33 to 35.

Family Law - Topic 2120

Custody and access - Jurisdiction - Founded on residence of child - In 2004, a wife commenced proceedings in Saskatchewan for custody and child support under the Children's Law Act (Sask.) and the Divorce Act (Can.) - The husband argued that the court lacked jurisdiction because the child was born in British Columbia, resided there until 2003 and she was more substantially connected with that province - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the court had jurisdiction to hear and determine the custody proceeding under either Act - The child had become habitually resident in Saskatchewan within the meaning of both Acts - Given that finding, an agreement by the parties that divorce issues were to be settled by the British Columbia courts did not oust the jurisdiction of the Saskatchewan courts - This was not an appropriate case for the court to transfer or decline jurisdiction - See paragraphs 9 to 17.

Cases Noticed:

Bedard v. Bedard (2004), 249 Sask.R. 161; 325 W.A.C. 161; 2004 SKCA 101, dist. [para. 11].

Glarvin v. Glarvin (1996), 148 Sask.R. 71; 134 W.A.C. 71 (C.A.), refd to. [para. 14].

Hlynski v. Hlynski (1999), 180 Sask.R. 1; 205 W.A.C. 1 (C.A.), refd to. [para. 22].

Greyeyes v. Greyeyes, [1982] 6 W.W.R. 92 (Sask. Q.B.), refd to. [para. 26].

Sandy v. Sandy (1979), 13 R.F.L.(2d) 81 (Ont. C.A.), refd to. [para. 26].

Lerat v. Lerat (1984), 37 Sask.R. 36 (Q.B.), refd to. [para. 26].

Standing v. Standing (1991), 96 Sask.R. 13; 37 R.F.L.(3d) 90 (Q.B.), refd to. [para. 26].

Spiliada Maritime Corp. v. Cansulex Ltd., [1986] 3 All E.R. 843; 71 N.R. 372 (H.L.), refd to. [para. 27].

Pasareno v. Pasareno (2000), 188 Sask.R. 314; 2000 SKQB 41 (Fam. Div.), refd to. [para. 27].

Hill v. Klynveld Peat Marwick Goerdeler, [1997] 7 W.W.R. 515; 156 Sask.R. 244 (Q.B.), leave to appeal refused (1998), 227 N.R. 294; 168 Sask.R. 319; 173 W.A.C. 319 (S.C.C.), refd to. [para. 29].

T.I.M. v. T.L.M., [2003] B.C.T.C. 1918; 1 R.F.L.(6th) 266; 2003 BCSC 1918, refd to. [para. 33].

Boyd v. Boyd (2001), 158 B.C.A.C. 198; 258 W.A.C. 198; 2001 BCCA 535, refd to. [para. 33].

Authors and Works Noticed:

McLeod, James, Annotation to Battye v. Battye (1989), 22 R.F.L.(3d) 427, generally [para. 21].

Counsel:

J. Kwok, for the petitioner;

G. Vanstone, for the respondent.

This motion was heard by M.-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following decision on February 18, 2005.