L.G.V. v. L.A.P.,

• Jurisdiction: New Brunswick
• Judge: Green, Baird and French, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Citation: 2016 NBCA 23,(2016), 449 N.B.R.(2d) 140 (CA)
• Date: 20 January 2016

L.G.V. v. L.A.P. (2016), 449 N.B.R.(2d) 140 (CA);

    449 R.N.-B.(2e) 140; 1180 A.P.R. 140

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. MY.016

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MY.016

L.G.V. (appellant) v. L.A.P. (respondent)

(89-15-CA; 2016 NBCA 23)

Indexed As: L.G.V. v. L.A.P.

Répertorié: L.G.V. v. L.A.P.

New Brunswick Court of Appeal

Green, Baird and French, JJ.A.

May 12, 2016.

Summary:

Résumé:

The parties were Portuguese citizens. They were married in Portugal in 1997. They had one child of the marriage (born in May 1998), who currently resided with the husband in New Brunswick. The husband filed a petition for divorce in Portugal on August 26, 2014. Before the petition was properly served on the wife, the wife filed a petition for divorce in New Brunswick on November 7, 2014. The husband moved for a declaration that New Brunswick was not the convenient forum to hear the divorce petition filed by the wife and a stay of New Brunswick proceedings.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at 441 N.B.R.(2d) 181; 1152 A.P.R. 181, granted the motion and awarded $750 costs to the husband. While New Brunswick had jurisdiction simpliciter, the factors dealing with the questions of, or pertaining to the questions of divorce, clearly favoured Portugal as the forum convenience. The wife appealed.

The New Brunswick Court of Appeal allowed 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 8

General - Doctrine of comity - The parties were Portuguese citizens - They were married in Portugal in 1997 - They had one child of the marriage (born in May 1998), who currently resided with the husband in New Brunswick - The husband filed a petition for divorce in Portugal on August 26, 2014 - The wife filed a petition for divorce in New Brunswick on November 7, 2014 - The husband moved for an order that New Brunswick was not the convenient forum to hear the wife's petition - The motion judge granted the motion - While New Brunswick had jurisdiction simpliciter, the factors dealing with the questions of, or pertaining to the questions of, divorce clearly favoured Portugal as the forum conveniens - The wife was in Portugal, the indicia of marriage were in that jurisdiction and the only elements that had to have a New Brunswick input were collateral in nature (custody and access of the son, real property and assets in this jurisdiction) - These matters could be resolved by the court in Portugal and the decisions confirmed by the court in this jurisdiction - The New Brunswick Court of Appeal allowed the wife's appeal - Custody, access, spousal support and division of assets were not collateral in nature - The motion judge did not determine whether there was comity between New Brunswick and Portugal respecting these important issues such as spousal support, or the division of marital property - The judge did not analyze whether those matters would be treated and decided in conformity with Canadian family law principles, or whether Portugal orders could be enforced in Canada - The judge's reliance on the affidavit filed by the husband's legal counsel in Portugal constituted an error, as the affidavit did not adequately address these questions - Factors such as the applicable law, the ability to enforce the foreign judgment in New Brunswick, comity, valuation issues and evidentiary questions concerning the disputed date of separation should have been central to the judge's forum non conveniens analysis - The analysis was incomplete - The combined effect of the failure to complete the analysis, persuaded the court that the judge erred when he granted the motion.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - [See Conflict of Laws - Topic 8 ].

Conflict of Laws - Topic 2104

Family law - Divorce - Forum conveniens - [See Conflict of Laws - Topic 8 ].

Conflict of Laws - Topic 9201

Practice - General - Comity - [See Conflict of Laws - Topic 8 ].

Conflict of Laws - Topic 9621

Evidence and proof - Proof of foreign law - General - [See Conflict of Laws - Topic 8 ].

Family Law - Topic 3500

Divorce - Jurisdiction - General - [See Conflict of Laws - Topic 8 ].

Counsel:

Avocats:

Donald F. Rowan, for the appellant;

Joseph Wilfred John Fitzpatrick, for the respondent.

This appeal was heard on January 20, 2016, by Green, Baird and French, JJ.A., of the New Brunswick Court of Appeal. Baird, J.A., delivered the following judgment for the court, in both official languages, on May 12, 2016.