Penner v. Lee, 2000 SKQB 576

• Judge: Wilkinson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 15, 2000
• Jurisdiction: Saskatchewan
• Citations: 2000 SKQB 576;(2000), 201 Sask.R. 114 (FD)

Penner v. Lee (2000), 201 Sask.R. 114 (FD)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. JA.028

Dennis Penner (applicant) v. Julia Lee (respondent)

(2000 F.L.D. No. 261; 2000 SKQB 576)

Indexed As: Penner v. Lee

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Wilkinson, J.

December 15, 2000.

Summary:

The applicant asserted that he and the respondent cohabited in Winnipeg between 1993 and 1996. He claimed lump sum spousal support of $200,000. At issue was whether a common law relationship gave rise to a support proceeding in Saskatchewan under the Family Maintenance Act when the purported relationship was conducted in Manitoba, the respondent had thereafter moved to British Columbia and the applicant had been resident in Saskatchewan for one year. The applicant did not resort to the procedures under the Reciprocal Enforce­ment of Maintenance Orders Act, but rather asked the court to exercise its jurisdiction and make a final order. The respondent raised traditional conflict of laws arguments.

The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the issue of jurisdiction in support matters could not be considered without reference to the Reciprocal Enforcement of Maintenance Orders Act. The court concluded that the best that could be achieved in Saskatchewan was a provisional order. Even if the applica­tion was treated as one for a provisional order, there were issues regarding the estab­lishment of a prima facie case, especially with respect to the quantum of support claimed. The application was dismissed.

Conflict of Laws - Topic 2222

Family law - Maintenance - Jurisdiction of court - [See Family Law - Topic 2248 ].

Family Law - Topic 2243.1

Maintenance of wives and children - Juris­diction - Provisional v. final order - [See Family Law - Topic 2248 ].

Family Law - Topic 2248

Maintenance of wives and children - Juris­diction - Where respondent resident out of province - The applicant claimed $200,000 lump sum spousal support, asserting that he and the respondent cohabited between 1993 and 1996 - The purported relation­ship was conducted in Manitoba, the re­spondent had thereafter moved to British Columbia and the applicant had been resident in Saskatchewan for one year - The applicant did not resort to the pro­cedures under the Reciprocal Enforcement of Maintenance Orders Act (REMO Act), but rather asked the court to exercise its jurisdiction and make a final order - The respondent raised traditional conflict of laws arguments - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the issue of jurisdiction in sup­port matters could not be considered with­out reference to the REMO Act - The court concluded that the best that could be achieved in Saskatchewan was a provi­sional order - Even if the application was treated as one for a provisional order, there were issues regarding the establishment of a prima facie case, especially with respect to the quantum of support claimed.

Cases Noticed:

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81; [1991] 2 W.W.R. 217; 76 D.L.R.(4th) 256; 52 B.C.L.R.(2d) 160, refd to. [para. 8].

Emanuel v. Symon, [1908] 1 K.B. 302, refd to. [para. 11].

Indyka v. Indyka, [1967] 3 W.L.R. 510; [1967] 2 All E.R. 689; 1 A.C. 33 (H.L.), refd to. [para. 13].

Edward v. Edward Estate and Skolrod, [1987] 5 W.W.R. 289; 57 Sask.R. 67; 8 R.F.L.(3d) 370; 27 E.T.R. 152; 39 D.L.R.(4th) 654 (C.A.), refd to. [para. 13].

Ontario (Attorney General) v. Scott, [1956] S.C.R. 137, refd to. [para. 14].

Bailey v. Bailey, [1968] S.C.R. 617, refd to. [para. 14].

Andrie v. Andrie (1967), 60 W.W.R.(N.S.) 53 (Sask. Dist. Ct.), refd to. [para. 15].

Thompsett v. McKenzie, [1982] 3 W.W.R. 333 (Alta. Prov. Ct.), consd. [para. 17].

Ross v. Polak, [1971] 2 W.W.R. 241 (Alta. S.C.), consd. [para. 17].

Toope v. Syversten (1995), 11 R.F.L.(4th) 69 (B.C.S.C.), consd. [para. 19].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609; 120 D.L.R.(4th) 289; 100 B.C.L.R.(2d) 1; 7 M.V.R.(3d) 202, refd to. [para. 22].

First City Capital Ltd. v. Winchester Com­puter Corp. et al., [1987] 6 W.W.R. 212; 61 Sask.R. 153; 44 D.L.R.(4th) 301 (C.A.), refd to. [para. 25].

Works v. Holt (1976), 22 R.F.L. 1 (Ont. Prov. Ct.), refd to. [para. 30].

M.-A.B. v. J.A.G., [1985] O.J. No. 792 (Prov. Ct.), refd to. [para. 33].

Ulmer v. Friend, [2000] S.J. No. 488 (Q.B.), refd to. [para. 34].

C.J.F. v. B.B.H., [1996] 3 W.W.R. 436; 139 Sask.R. 66 (Q.B. Fam. Div.), refd to. [para. 34].

Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.), refd to. [para. 36].

Masunda v. Downing (1986), 5 B.C.L.R.(2d) 113 (S.C.), refd to. [para. 36].

Authors and Works Noticed:

Castel, Canadian Conflict of Laws (3rd Ed. 1994), pp. 119 to 121 [para. 21].

Castel, Canadian Conflict of Laws (4th Ed. 1997), p. 52 [para. 9].

Dicey, Conflict of Laws (9th Ed. 1993), p. 1032 [para. 32].

Counsel:

B.P. Hrycan, for the applicant;

R.B. Hunter, for the respondent.

This application was heard before Wilkin­son, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judi­cial Centre of Regina, who delivered the following decision on December 15, 2000.