Matty v. Rammasoot, 2014 ABQB 2

• Judge: Gates, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 10, 2013
• Citations: 2014 ABQB 2;(2014), 585 A.R. 26 (QB)

Matty v. Rammasoot (2014), 585 A.R. 26 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.128

Thomas Jay Matty (plaintiff) v. Nopparat Rammasoot (defendant)

(FL03 26608; 2014 ABQB 2)

Indexed As: Matty v. Rammasoot

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gates, J.

January 6, 2014.

Summary:

The parties met in Thailand in the 1990s. They cohabited for about 15 years in Thailand and had three children. In 2009, the Canadian-born father returned to Canada with the mother and the children. The parties separated in 2010. Pursuant to a 2011 court order, the parties were granted joint guardianship, but the mother was given control over primary residence and thus allowed to return to Thailand with the children. The father's appeal of that order was dismissed (see [2013] A.R. Uned. 267). The father now applied to vary the order, alleging that there had been a change of circumstances and that the children should be returned to Canada. A preliminary issue arose respecting the jurisdiction of the Alberta court to hear the application, given that the children were no longer living in Canada.

The Alberta Court of Queen's Bench declined to take jurisdiction over the parenting issues. Thailand was the forum conveniens.

Conflict of Laws - Topic 2306

Family law - Custody of and access to children - Forum conveniens - The parties met in Thailand in the 1990s - They cohabited for about 15 years in Thailand and had three children born in 2001, 2002 and 2004 - In 2009, the Canadian-born father returned to Canada with the mother and the children - The parties separated in 2010 - Pursuant to a 2011 court order, the mother was given control over primary residence and thus allowed to return to Thailand with the children - The father applied to vary the order, alleging that there had been a change of circumstances and that the children should be returned to Canada - A preliminary issue arose respecting the jurisdiction of the Alberta court to hear the application, given that the children were no longer living in Canada - The Alberta Court of Queen's Bench found that both Alberta and Thailand had jurisdiction over the matter, but that Thailand was the forum conveniens - The children's most substantial connection was with Thailand, where they had spent virtually all of their lives - They were in Canada for a maximum of two years and had now been away from Canada for over two years - See paragraphs 20 to 39.

Conflict of Laws - Topic 2306

Family law - Custody of and access to children - Forum conveniens - Pursuant to a 2011 Alberta court order, a Thai-born mother was permitted to leave Canada and return to Thailand with the parties' three children - The Canadian-born father applied to vary the order - In determining whether Alberta or Thailand was the forum conveniens to hear the application, the father argued that the court should consider the best interests of the children - The Alberta Court of Queen's Bench held that this was not a typically proper consideration in the determination of the preliminary issue of jurisdiction - The court stated that "The 'best interests' test is a foundational principle in dealing with applications brought under the Family Law Act. However, it is a principle to be applied in determining substantive issues raised under the Act. As such, it usually only comes into play once the jurisdictional issue has been resolved in favour of an Alberta-based court. To incorporate a 'best interests' inquiry into the determination of jurisdiction would, in my view, blur these clearly separate processes. The best interests of the children could be relevant to the issue, for example, if the choice of forum might result in significant juridical or other disadvantages, however it is not a stand-alone factor." - See paragraphs 32 and 33.

Conflict of Laws - Topic 2306

Family law - Custody of and access to children - Forum conveniens - Pursuant to a 2011 Alberta court order, a Thai-born mother was permitted to leave Canada and return to Thailand with the parties' three children who were born in Thailand in 2001, 2002 and 2004 - The Canadian-born father applied to vary the order - In determining whether Alberta or Thailand was the forum conveniens to hear the application, the father argued that the court should consider the children's evidence regarding where they wished to live - The Alberta Court of Queen's Bench held that this was not a typically proper consideration in the determination of the preliminary issue of jurisdiction. The court stated "I decline to consider the children's evidence offered by the [father] as part of his submissions relative to the issue of jurisdiction. While the views of children may properly be received in certain exceptional circumstances, these are young children whose untested views were offered as YouTube videos prepared by the [father] and taken under undisclosed circumstances. The weight of this type of evidence is minimal, in any event, as the courts understand that children typically do not wish to disappoint either parent." - See paragraph 34.

Family Law - Topic 2118

Custody and access - Jurisdiction - Where child is resident outside the province - [See first Conflict of Laws - Topic 2306 ].

Family Law - Topic 2126

Custody and access - Jurisdiction - Declining jurisdiction - [See first Conflict of Laws - Topic 2306 ].

Family Law - Topic 2129

Custody and access - Jurisdiction - Transfer to jurisdiction of substantial connection - [See first Conflict of Laws - Topic 2306 ].

Cases Noticed:

Timoshchenko v. Timoshchenko (2012), 537 A.R. 344; 2012 ABQB 200, refd to. [para. 15].

United Oilseed Products Ltd. v. Royal Bank of Canada (1988), 87 A.R. 337; 1988 ABCA 207, refd to. [para. 16].

Sun v. Guilfoile, [2011] O.T.C. Uned. 1685; 96 R.F.L.(6th) 397; 2011 ONSC 1685, refd to. [para. 17].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 18].

Hamel-Smith v. Gonsalves (2000), 185 D.L.R.(4th) 713; 2000 ABQB 269, refd to. [para. 24].

A.F.M. v. C.L.M., [2007] A.R. Uned. 83; 156 A.C.W.S.(3d) 143; 2007 ABQB 100, refd to. [para. 25].

Counsel:

Thomas J. Matty appeared on his own behalf;

Zelma Hardin, for the defendant.

This application was heard on December 10, 2013, before Gates, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on January 6, 2014.