Theriault v. Theriault, 2014 SKQB 373

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 13, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 373;(2014), 461 Sask.R. 211 (QB)

Theriault v. Theriault (2014), 461 Sask.R. 211 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.037

Gwen Marie Theriault (petitioner) v. Kenneth Joseph Theriault (respondent)

(2014 DIV No. 3; 2014 SKQB 373)

Indexed As: Theriault v. Theriault

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Wilson, J.

November 13, 2014.

Summary:

The wife's petition for divorce, including claims for spousal support and a division of family property, was filed in Saskatchewan on January 2, 2014. The husband applied for a divorce in Japan, where he lived, on January 14, 2014. The husband conceded that the Saskatchewan court had jurisdiction for the divorce proceeding, as the wife was ordinarily resident in Saskatchewan for at least one year preceding her claim. However, he asserted that the court lacked territorial competence regarding the family property claim and sought a transfer of the divorce, spousal support and family property claims to Japan to avoid a multiplicity of actions.

The Saskatchewan Court of Queen's Bench dismissed the application.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - The wife's petition for divorce, including claims for spousal support and a division of family property, was filed in Saskatchewan on January 2, 2014 - The husband applied for a divorce in Japan, where he lived, on January 14, 2014 - The husband conceded that the Saskatchewan court had jurisdiction for the divorce proceeding, as the wife was ordinarily resident in Saskatchewan for at least one year preceding her claim - However, he asserted that the court lacked territorial competence regarding the family property claim and sought a transfer of the divorce, spousal support and family property claims to Japan to avoid a multiplicity of actions - The Saskatchewan Court of Queen's Bench dismissed the application - Territorial competence regarding the Family Property Act was determined under the Court Jurisdiction and Proceedings Transfer Act - The issue was whether there was a "real and substantial connection" between Saskatchewan and the facts on which the proceeding against the husband were based (s. 4(e) of the Act) - The presumption of a real and substantial connection under s. 9(a) of the Act was also relevant - The wife's evidence was that significant family property was located in Saskatchewan - Further, the parties had lived in Saskatchewan for 18 years after marriage - They had lived in Japan for 10 years - A real and substantial connection existed between Saskatchewan and the facts on which the proceeding was based - See paragraphs 19 to 23.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The wife's petition for divorce, including claims for spousal support and a division of family property, was filed in Saskatchewan on January 2, 2014 - The husband applied for a divorce in Japan, where he lived, on January 14, 2014 - The husband conceded that the Saskatchewan court had jurisdiction for the divorce proceeding, as the wife was ordinarily resident in Saskatchewan for at least one year preceding her claim - However, he asserted that the court lacked territorial competence regarding the family property claim and sought a transfer of the divorce, spousal support and family property claims to Japan to avoid a multiplicity of actions - The Saskatchewan Court of Queen's Bench dismissed the application - Having determined that the court had territorial competence to determine the claims, the court refused to decline jurisdiction in favour of Japan under s. 10 of the Court Jurisdiction and Proceedings Transfer Act - The court rejected the husband's assertion that the proceedings should be transferred because it would not be possible to enforce a Saskatchewan spousal support judgment - This was only one factor in the decision and, in any event, enforcement was possible through garnishment of the husband's North American employer - Further, the wife would not be entitled to any payment of spousal support if the matter proceeded in Japan - Saskatchewan was the more appropriate jurisdiction based on all of the relevant factors, including the wife's loss of juridical advantage if she was precluded from proceeding in her home jurisdiction - See paragraphs 24 to 29.

Conflict of Laws - Topic 2061

Family law - Property - General - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 2102

Family law - Divorce and annulment - Jurisdiction of court - The wife's petition for divorce, including claims for spousal support and a division of family property, was filed in Saskatchewan on January 2, 2014 - The husband applied for a divorce in Japan, where he lived, on January 14, 2014 - The husband conceded that the Saskatchewan court had jurisdiction for the divorce proceeding, as the wife was ordinarily resident in Saskatchewan for at least one year preceding her claim - However, he sought a transfer of the divorce, spousal support and family property claims to Japan to avoid a multiplicity of actions - At issue was the court's jurisdiction to determine the spousal support claim - The Saskatchewan Court of Queen's Bench dismissed the husband's application - Because the definition of "court" in both ss. 3(2) and 4(2) of the Divorce Act referred to a court in Canada and did not include a court in another country, the court's jurisdiction to hear the divorce claim arose only from s. 3(1) of the Act - A spousal support claim made in a petition as relief corollary to the divorce fell within the definition of "divorce proceeding" in s. 2(1) of the Act - Thus, the reference to a "divorce proceeding" in s. 3(1) allowed the court jurisdiction to determine the wife's spousal support claim - See paragraphs 12 to 18.

Conflict of Laws - Topic 2222

Family law - Maintenance - Jurisdiction of court - [See Conflict of Laws - Topic 2102 ].

Conflict of Laws - Topic 2223

Family law - Maintenance - Forum conveniens - [See Conflict of Laws - Topic 1664 ].

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - [See Conflict of Laws - Topic 603 ].

Family Law - Topic 3991

Divorce - Corollary relief - General - Jurisdiction of divorce court - [See Conflict of Laws - Topic 2102 ].

Cases Noticed:

Quigley v. Willmore (2008), 264 N.S.R.(2d) 293; 847 A.P.R. 293; 50 R.F.L.(6th) 1; 2008 NSCA 33, refd to. [para. 12].

Thomson v. Minister of National Revenue, [1946] S.C.R. 209, refd to. [para. 12].

Arnold v. Arnold, [1998] 6 W.W.R. 344; 164 Sask.R. 252 (Q.B.), refd to. [para. 12].

Walling v. Walling (2007), 294 Sask.R. 256; 2007 SKQB 43 (Fam. Div.), refd to. [para. 15].

Hunter v. Hunter [2006] 5 W.W.R. 141; 269 Sask.R. 223; 357 W.A.C. 223; 2005 SKCA 76, refd to. [para. 19].

Johnson v. Johnson (1979), 11 R.F.L.(2d) 231 (Ont. Sup. Ct.), refd to. [para. 29].

Nicholas v. Nicholas (1996), 94 O.A.C. 21; 139 D.L.R.(4th) 652 (C.A.), refd to. [para. 29].

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. 29].

Statutes Noticed:

Court Jurisdiction and Proceedings Transfer Act, S.S. 1997, c. C-41.1, sect. 4 [para. 21]; sect. 9(a) [para. 22]; sect. 10 [para. 24].

Divorce Act, R.S.C. 1985 (2nd Supp.) c. 3, sect. 3(1) [para. 12].

Counsel:

Gregory G. Walen, Q.C., for the petitioner;

Patrick H. Loran, for the respondent.

This application was heard by Wilson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on November 13, 2014.